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Two Arizona mothers are suing the state Department of Education over curriculum requirements for the school voucher program that Attorney General Kris Mayes has instructed the department to enforce.
The Empowerment Scholarship Account, or ESA program, works by giving the parents of participating students a debit card that can be used to pay for various educational costs, or reimbursing the parents for those costs. The costs can include private school tuition, homeschooling supplies or the money can be saved for college.
The voucher program originated in 2012, but was expanded in 2022 from serving a limited group of about 12,000 students who met specific criteria to a universal program available to all of the state’s roughly one million K-12 students. There are currently more than 78,600 students enrolled, according to the Department of Education.
In July, the Attorney General’s Office, headed by Democrat Kris Mayes, informed the director of the ESA program that it might be violating state law by reimbursing parents for supplementary educational materials without requiring proof that those materials were necessary for a specific curriculum being taught to the students. She advised the director, John Ward, to stop doing so immediately, saying that it left the program open to potential fraud.
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While Republican Superintendent of Public Instruction Tom Horne, an ardent advocate of the ESA program, said he didn’t agree with Mayes’ interpretation of the law, he decided to concede to her demands and require the extra documentation from parents.
“When I received the attorney general’s message, I sent it to the most knowledgeable people in my department,” Horne wrote on the ESA program website. “I asked them to look at it, not as an advocate, because we all disagree with the Attorney General, but in a neutral way, as though they were judges to determine if they could give me a reasonable assurance of success. They analyzed the statutes on which the attorney general relied, and indicated to me that as a neutral judge, they would rule against me if I made a fight out of it and refused to comply. Getting into a fight and losing, would be much more damaging.”
Horne served as Arizona’s attorney general from 2011 to 2015.
The Department of Education began requiring documentation that supplemental educational materials were necessitated by a student’s curriculum on July 3, two days after the attorney general’s office sent the letter.
The two mothers, Velia Aguirre of Maricopa County and Rosemary McAtee of Pinal County, who are represented by the conservative Goldwater Institute, filed a lawsuit against the Department of Education in Maricopa County Superior Court on Sept. 23. In it, they asked the court to order that the ESA handbook authorize the use of supplementary materials that are “generally known to be educational items” without requiring parents to identify a curriculum requiring them. They also asked the court to permanently block the Department of Education from requiring such information.
Aguirre is the mother of three children who she homeschools using funds from the ESA program, while McAtee homeschools seven of her nine children using the ESA program.
“The government is changing the rules and putting impossible burdens on me,” Aguirre said in a written statement.
Aguirre, a former special education teacher with a master’s degree, said that after the ESA program changed its requirements, it declined to reimburse her for educational materials that weren’t tied to a specific curriculum.
Those materials included an activity set to teach one of her children how to tell time, wooden puzzles, feeling and emotions puzzle cards for social emotional learning, a phonics activity, pencils, a box of erasers and several books.
“Ms. Aguirre routinely buys materials that are not specifically listed on any curriculum documents but that, in her knowledge and experience, she determines are necessary and appropriate supplements to her children’s educational needs,” John Thorpe, an attorney for the Goldwater Institute, wrote in the lawsuit. “She also anticipates continuing to do so in the future.”
McAtee said that she was similarly denied reimbursement for several books that she bought for her children’s education. While most of them were classic educational books that aim to teach children about colors and historical figures, one was titled “Catholic Encyclopedia for Children.”
Both women appealed the denials to the Arizona Board of Education and lost.
Thorpe argued that the ESA program expressly allows parents to be reimbursed for supplementary education materials without providing proof of their necessity for a specific curriculum, adding that the 2023-2024 ESA parent handbook allows it. The handbook was approved by the Arizona Board of Education in April 2023.
Mayes claimed in her July letter that the handbook was in conflict with state law.
“The Attorney General has simply stated what is required by law,” Mayes spokesman Richie Taylor wrote in a statement to the Arizona Mirror. “The law doesn’t prevent parents from purchasing paper and pencils, but it does require that materials purchased with ESA funds be used for a child’s education. With instances of voucher dollars being spent on things like ski passes, luxury car driving lessons, and grand pianos, it’s clear that providing documentation on spending is essential to prevent the misuse of taxpayer funds.”
Thorpe noted in the lawsuit that Mayes’ letter followed failed attempts by legislative Democrats to rein in the program.
“The addition of this new requirement violates state law and state regulations, needlessly exacerbates a backlog of tens of thousands of purchase orders awaiting review, and senselessly burdens and limits parents in their ability to provide for the education of their children,” Thorpe wrote.
Republicans in the state Legislature championed the expansion of the ESA program, calling it a victory for school choice. Democrats opposed it, saying it subsidized private school tuition for wealthy families whose children already attended private schools before vouchers were available, that it gives tax dollars to religious schools and that it takes money away from public schools.
Last year, the estimated net cost of the voucher program was $332 million last fiscal year — a figure that is expected to grow to around $429 million this year, according to a report from the Grand Canyon Institute, a nonpartisan think tank. The institute also recently reported that parents had accumulated $360 million in funds, some carried over from prior fiscal years, in voucher accounts.
In the lawsuit, Thorpe wrote that Mayes had misinterpreted the law, pointing to amendments made by the state legislature in 2020 — prior to the universal expansion — that were created to broaden the allowable uses of ESA funds.
The bill’s sponsor, then-Sen. Sylvia Allen, a Republican, said the purpose of the legislation was to ensure that parents could be reimbursed for supplementary materials outside of those called for by a curriculum.
“We’re redefining curriculum more broadly by changing the definition to allow rather than require supplemental materials to be part of established curriculum,” Allen said during a Feb. 26, 2020 Senate hearing on the bill. “This allows parents to use the learning materials that are right for their children.”
Thorpe wrote that he and his clients believe Horne only complied with Mayes’ demands out of fear that she would bring legal action against him, Department of Education employees and possibly even parents, based on statements from the July 1 letter.
“The Department of Education concedes the argument of the Goldwater Institute,” Horne wrote in a statement to the Mirror. “When this issue first arose in July, my concern was that the Attorney General could force Empowerment Scholarship Account holders to return funds if they did not comply with her office’s interpretation of the law. This lawsuit will settle the issue in court and my sincere hope is that the arguments made by Goldwater will prevail.”
Mayes will continue to fight for transparency and accountability in how tax dollars are used via the ESA program, Taylor said.
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