Phoenix, Ariz.—Today, the Institute for Justice filed legal papers to intervene on behalf of parents to defend the nation’s first publicly funded education savings account program against a legal challenge filed yesterday by the Arizona School Boards Association and the Arizona Education Association, among others. The program allows qualified parents of children with disabilities to apply for an Arizona Empowerment Scholarship Account and use the funds deposited by the state into those accounts for a wide variety of educational expenses including, but not limited to, tutoring, home school curriculum, private school tuition, community college and university tuition and textbooks.

The lawsuit claims that the new program violates the Arizona Constitution and the Arizona Supreme Court’s 2009 decision in Cain v. Horne, which struck down a traditional voucher program for children with disabilities. In Cain, the Arizona Supreme Court said such programs were unconstitutional because parents have “no choice; they [have to] endorse the check” to a private school. No such characterization, however, can be made of empowerment accounts.

“The Arizona Empowerment Scholarship Account program gives parents a variety of ways to spend their educational funds, including hiring accredited tutors and educating their child at home, and parents always have the option of keeping their child in a public school,” explained Tim Keller, executive director of the Institute for Justice Arizona Chapter. “In these ways, the program is significantly different than the earlier voucher programs and, as with all constitutional school choice programs, parents—and not the government—decide the best educational setting for their child.”

Empowerment Accounts operate in a straightforward manner. In exchange for parents’ agreement not to enroll their special needs student in a public or charter school, the state will make quarterly deposits into an empowerment account in an amount slightly less than what the public school would have received to educate the child—90 percent of that amount, thereby saving money for taxpayers while still ensuring each child is educated. 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, or hiring an accredited tutor to provide tutoring services. The funds may also be used to pay for the child’s education at a community college or a public or private university. The program is available only to families of children with disabilities, but otherwise there is no cap on participation in the program.

“Fortunately for parents of special needs kids, it is clear the new Empowerments Accounts will pass constitutional muster,” Keller said.

The Arizona Empowerment Scholarship Account program is an improvement over Lexie’s Law, a corporate scholarship tax credit program that the Arizona Legislature passed in 2009 to help fund private school scholarships for children with disabilities. Lexie Law’s permits corporations and insurance companies to claim a dollar-for-dollar tax credit on their income or premium taxes respectively. Lexie’s Law 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.

“While we are very grateful for the passage of Lexie’s Law, unfortunately corporate participation has been very difficult to attract and uncertain from year to year,” said Andrea Weck-Robertson, an Institute for Justice client whose daughter, the same Lexie who inspired Lexie’s Law, attends the private St. Dominic Savio Academy using a scholarship funded by Lexie’s Law. “The Arizona Empowerment Scholarship Account program will provide families like mine a stable source of funding to give many families the widest range possible of educational opportunities.”

The Institute for Justice has a long history of successfully defending school choice from legal attacks and has represented parents and children in defense of every one of Arizona’s private school choice programs that have been challenged in court. IJ represented intervening parents in the successful defense of:

• Arizona’s Individual Scholarship Tax Credit Program, Ariz. Christian Sch. Tuition Org. v. Winn and Kotterman v. Killian;
• Ohio’s Pilot Scholarship Program, Zelman v. Simmons-Harris and Simmons-Harris v. Goff
• Milwaukee’s Parental Choice Program, Jackson v. Benson;
• Arizona’s Corporate Scholarship Tax Credit Program, Green v. Garriott; and
• Illinois’ Educational Expenses Tax Credit Program, Toney v. Bower.

The Institute for Justice currently represents intervening parents in Douglas County, Colo., and in Indiana defending recently passed school choice programs in those jurisdictions.