Institute for Justice Vows to Defend Arizona’s Landmark Education Savings Accounts For Children with Special Needs

John Kramer
John Kramer · April 13, 2011

Phoenix, Ariz.—Yesterday, Arizona became the first state in the nation to adopt a publicly funded education savings account program. The program allows qualified parents of children with special needs to apply for an Arizona Empowerment Account and use the funds deposited by the state into those accounts for a wide variety of educational expenses, including tutoring, curriculum, private school tuition, required textbooks and savings for college expenses.

“Arizona is a national leader in providing families with a wide range of school choice, from open public school enrollment, to charter and magnet schools, to tax credit funded scholarships to attend private schools,” explained Tim Keller, executive director of the Institute for Justice Arizona Chapter. “But every time the Legislature adopts a new private school choice program, the teachers’ unions respond by trying to halt the program in court. If the education establishment files a lawsuit to stop Arizona’s Empowerment Accounts, the Institute for Justice will intervene on behalf of parents and children to defend the program.”

“Parents of children with special needs face so many challenges each day; getting your child the best available education should not be one of those challenges,” said Andrea Weck-Robertson, an Institute for Justice client whose daughter, Lexie, attends the private school St. Dominic’s Savio using a scholarship from a corporate tax credit program named after Lexie. “And thanks to Arizona’s commitment to empowering parents to choose the best educational setting for their special needs children, making educational decisions just got a whole lot easier.”

The Arizona Empowerment Account Program is simple and straightforward. In exchange for a parent’s agreement to provide an education for their child in at least the subjects of reading, grammar, mathematics, social studies and science—and not enroll their child in a school district or charter school or accept a tax credit scholarship—the state will make quarterly deposits into an Arizona Empowerment Account up to an amount equivalent to 90 percent of the base support that a public school would have received to educate the child. Among other options, those funds can be used to pay tuition or fees at a private school, to purchase textbooks required by the private school, pay for educational therapies or services for the child from a licensed or accredited practitioner or provider, and to hire an accredited tutor to provide tutoring services. Upon the child’s high school graduation, any remaining funds may be used to pay for the child’s education in an eligible college or university. The program is available only to families of children with disabilities, but otherwise there is no cap on participation in the Arizona Empowerment Account Program.

The Arizona Empowerment Account is an improvement over its predecessor, Lexie’s Law, a corporate tax credit program that the Arizona Legislature passed in 2009. Lexie Law’s permits corporations and insurance companies to claim a dollar-for-dollar tax credit on their income or premium taxes respectively. The program is capped at $5 million, but unfortunately in 2009, the most recent year for which public reports are available, the tax credit program raised a mere $781,000.

“We’re very grateful for the existence of Lexie’s Law, but corporate fundraising has been uncertain from year to year,” said Victoria Zicafoose, another Institute for Justice client and mother of Sarah, who relies on Lexie’s Law to attend Lauren’s Institute for Education. “The Arizona Empowerment Account Program will provide families a stable source of funding and give so many families new educational opportunities.”

Unfortunately, given the Arizona Education Association’s stated opposition to Empowerment Accounts, school choice advocates believe a lawsuit is inevitable. Fortunately for parents of special needs kids, it is clear the accounts will pass constitutional muster. In Cain v. Horne, an earlier voucher program for children with disabilities was struck down by the Arizona Supreme Court. The Court ruled that the voucher program was unconstitutional in part because parents could only use the funds in private schools.

“Arizona Empowerment Accounts differ from traditional voucher programs in important ways,” said Keller. “The program gives parents a wide full menu of educational options in which to choose to spend the funds. In that way, it is abundantly clear the program aids individuals—not institutions. And, with all constitutional choice programs, parents—and not the government—decide which school a child attends.”

“The Institute for Justice has defended school choice program nationwide every day since it was founded 20 years ago,” said Chip Mellor, the Institute’s president and general counsel. “As the nation’s leading legal advocates for school choice, we know when a program passes constitutional muster, and there is no doubt that if this program is challenged it will be upheld in the court of law. We are ready to stand once again with parents who desperately need this choice to ensure Arizona’s groundbreaking education savings accounts will be there for them and for their children.”

The Institute for Justice has defended every one of Arizona’s private school choice programs on behalf of parents and children in the past 13-plus years. The Institute for Justice successfully defended Arizona’s Individual Tax Credit Program in the Arizona Supreme Court’s 1999 decision in Kotterman v. Killian, and again in the U.S. Supreme Court’s recent decision in Arizona Christian School Tuition Organization v. Winn. In addition, the Institute for Justice also represented families in Green v. Garriott, which resulted in an Arizona Court of Appeals decision upholding Arizona’s corporate scholarship tax credit program, and the parents and children who intervened in Cain v. Horne to defend Arizona’s now defunct Pupils with Disabilities Scholarship Program.