IJ Earns Victory for School Choice in Arizona

John Kramer
John Kramer · October 1, 2013

Phoenix, Ariz—Today the Arizona Court of Appeals unanimously upheld Arizona’s Empowerment Scholarship Account program as a constitutional educational choice program.

Writing for the majority in Niehaus v. Huppenthal, Judge Jon W. Thompson wrote, “This program enhances the ability of parents of disabled children to choose how best to provide for their educations, whether in or out of private schools. No funds in the ESA are earmarked for private schools. Thus, we hold that the ESA does not violate the [Arizona Constitution].”

The Empowerment Account program, which is the first of its kind in the nation, allows qualified parents to apply for an Arizona Empowerment Account and use the funds deposited into those accounts by the state for a wide variety of educational expenses, including tutoring,private school tuition, educational therapies, textbooks and savings for college expenses. Originally, only families of children with special needs were eligible for the program, but now all children entering kindergarten or attending public schools that receive a letter grade of D or F will be eligible to participate, as well as children of parents who are active duty military and certain children in foster care.

“Just as with all constitutional educational choice programs, parents—not government officials—decide the best means to educate their child,” said Tim Keller,executive directorof the Institute for Justice Arizona Chapter, which represented parents in the case. “Empowering parents to make educational decisions for their children does not violate any provision of our state constitution.”

“The Empowerment Account program is about helping students get the education they deserve. It is not about supporting private schools,” said Crystal Fox, a parent whose two special needs children, Austin (17) and Tia (12), rely on Arizona’s various educational choice programs to attend private schools. “Every child in Arizona deserves what my children have thanks to Arizona’s educational choice programs, a chance to attend a school that fits his or her individual needs.”

Austin, who has Asperger’s syndrome and is a self-proclaimed atheist, chose to attend Bios Christian Academy because of its focus on ability groups and skills mastery and is currently earning a 4.0 GPA. This is after he almost dropped out of his public high school. Austin uses a fraction of the money deposited in his Empowerment Account on tuition, while saving the rest for college tuition. Tia, who has severe autism, relies on a tax-credit funded scholarship from a separate program that is not being challenged in court, named Lexie’s Law. She attends the Chrysalis Academy, a private school that specializes in educating children with special learning and behavioral needs. Unfortunately, Lexie’s Law is underfunded and is not a stable year-to-year scholarship source. Because Tia is eligible for an Empowerment Account, Crystal hopes to open one for Tia as soon as the constitutional cloud is lifted from this program once and for all.

The Niehaus lawsuit, filed by the Arizona School Boards Association and the Arizona Education Association, claims that the Empowerment Account program violates the religion clauses of the Arizona Constitution. The lawsuit claims the Empowerment Account program is indistinguishable from the voucher programs struck down by the Arizona Supreme Court in its 2009 decision inCain v. Horne. In Cain, the Arizona Supreme Court said voucher programs are unconstitutional because parents have “no choice; they [have to] endorse the check” to a private school. But the Empowerment Account does not operate like the voucher programs considered in Cain. Parents are free to use the money deposited in their Empowerment Account on any of the program’s approved educational options and no parent is required to enroll their student in a private school.

“We will continue to defend the Empowerment Account program when the teachers’ unions file their inevitable appeal to the Arizona Supreme Court,” said Keller. “We remain confident that the Arizona Supreme Court will uphold the Empowerment Account program and declare that empowering parents is an expansion of liberty that is perfectly consistent with Arizona’s Constitution.”

The Goldwater Institute, which helped develop the Empowerment Scholarship Account program, also intervened in the case to defend the program.

The Institute for Justice has represented parents and children in defense of every one of Arizona’s private school choice programs that have been challenged in court since Arizona’s individual tax credit program was adopted in 1997.