Case Closed: Arizona Supreme Court Declares Educational Choice Program Constitutional

J. Justin Wilson
J. Justin Wilson · March 21, 2014

Phoenix, Ariz—The Arizona Supreme Court announced today that it will not review a unanimous Court of Appeals’ decision that declared Arizona’s Empowerment Scholarship Account (ESA) Program passes constitutional muster. Today’s decision removes any lingering uncertainty about the program’s constitutionality.

“Arizona’s ESA Program is changing lives and improving educational outcomes for more than 700 special-needs students currently participating in the program,” said Tim Keller, Executive Director of the Institute for Justice Arizona Chapter and the Institute’s lead attorney defending the program in court. “The Arizona Supreme Court’s decision is a huge victory for the families participating in the ESA Program.”

Austin Fox is one example of the difference this program is making in students’ lives. Now a high school senior, Austin—who has Asperger’s syndrome—was ready to drop out of his public high school in 10th grade. But the opportunity to participate in the ESA program, and to choose a school for himself, convinced Austin to stay in school. Austin’s new-found academic success and high SAT and ACT scores means he is college bound upon graduation. Austin’s mom, Crystal credits the ESA program with “saving Austin’s life.”

The Institute for Justice represented Crystal and Austin in this case. Along with several other parents and children, the Foxes intervened in the lawsuit, filed by the Arizona Education Association and the Arizona School Boards Association, to defend the ESA program, which is the first of its kind in the nation.

“Arizona’s ESA Program is a publicly-funded education savings program that gives parents more control over their special needs child’s education than any other private school choice program in the country,” explained Keller. “Arizona’s ESA Program differs from traditional publicly-funded scholarship programs by giving parents of special-needs children a full menu of educational options in which to choose to spend the funds.”

Under the ESA Program, participating parents receive quarterly deposits into an “empowerment account” in an amount slightly less than their child’s previous public school would have received to educate their child. Parents can then use those funds for a wide array of educational options, including payment of tuition or fees at a private school, purchasing educational therapies or services from a licensed or accredited provider, hiring an accredited tutor, or even paying for individual classes or extracurricular activities at a public school.

“Arizona has always been a national leader in offering families educational choice,” said Institute President and General Counsel William Mellor. “Today’s decision finally and fully vindicates the ESA Program’s constitutionality. The Court of Appeals’ decision now joins a growing list of state courts, including Ohio, Wisconsin, and most recently Indiana, to vindicate the parental right to choose the educational environment that best suits their child’s unique educational needs.”

The Institute for Justice is the nation’s leading law firm defending educational choice programs and is actively involved in litigation to protect programs in Alabama, Colorado, New Hampshire, and North Carolina. The Institute for Justice previously successfully defended Arizona’s popular tax-credit-scholarship programs in the Arizona Supreme Court in 1999 and again in the U.S. Supreme Court in 2009.