by Veronica Thorson
January 10, 2020

Arizona’s Empowerment Scholarship Accounts (ESAs) have radically improved the educational outcomes of children with special needs, but the state Department of Education is making it difficult—at times impossible—for these children to consistently reap benefits from the program. Consistency is critical for children with autism. And that’s why their parents are willing to fight so fiercely to ensure they receive the best education available. 

The Goldwater Institute recently filed a lawsuit on behalf of parents of special-needs children whose limitations were often debilitating to their education. For example, one of the children we represent is so severely autistic that he was unable to defend himself when two other kids bullied and sexually assaulted him when he attended a public school before entering the ESA program. Another, also autistic, battles with anxiety so severe that she once secluded herself from friends and didn’t want to leave her home. Some of these children experience even more hardships, including self-injurious behavior, self-mutilation, cyclic vomiting, dyslexia, ADHD, OCD, speech impairments and other developmental delays, seizures, separation anxiety, and uncontrollable aggression.  

With the help of the ESA program, however, the parents we represent have done extraordinary things for their children. 

It goes without saying that all parents want the best for their kids. For some parents in Arizona, the best can be found at a district or charter school. But for the plaintiffs in our lawsuit, the best can never be a one-size-fits-all public education. The families we represent know that because they tried to make public schools work for them. And although each family’s experience was different, the bottom line was the same: traditional public school education was not able to meet their children’s needs.

One mother we represent—whose child was bullied and assaulted—says, “The public schools failed my children.” But ESAs saved them. Other parents also found the public system unworkable. For example, another child we represent is in the unusual position of being both gifted and also autistic. She attended a good public school—yet it lacked the tools to meet her simultaneous needs for higher intellectual stimulation and intense socialization therapy. But thanks to the ESA program, she’s thriving in a setting that’s tailored to her individual needs. And another child who was in sixth grade but functioning at a kindergarten level in a government-run school now functions at a fifth-grade level thanks to his ESA, which allowed him to attend a program that fosters a one-on-one education in a low-sensory environment. 

ESAs have worked for these families as intended—by empowering parents to choose the education that’s right and best for their children. But the Department has made it all but impossible for them—and scores of other Arizona families—to use the program consistently. It has done so by withholding funds from families, threatening to remove them from the program, and constantly changing its own rules. Even the Department’s own employees can’t keep up with the ever-shifting administration of this program, which results in innumerable inconsistencies, especially when it comes to determining which expenses are allowed or disallowed, or how expenses must be categorized on the expense reports the Department forces parents to submit every three months. 

As one mother we represent described it, “No matter how much you bend over backwards, the Department will reject your expense report. You spend so much time that you don’t even have trying to contact them, trying to do whatever they want you to do. And then they delay your funds anyway, and now you can’t pay your tutors.” Another observed how humiliating it is to beg tutors to provide services without payment. “The kids don’t understand,” she said. “Of course they don’t understand why they can’t go to class. And then they lose so much of the progress they’ve worked so hard to achieve.”

Yet for these special-needs children, consistency is essential if they are to thrive. Inconsistency is particularly devastating to these autistic children because they cannot process change and are often obsessive about their schedules. Missing a single tutoring class can cause disruptive behavior (e.g., shrieking and crying) for a week and eviscerates any progress they have achieved up to that point.  

Contrary to the misleading narrative propounded by opponents of school choice, parents are not buying jet skis or vacations to Tahiti with their ESA funds. Instead, they are battling the Department every day over educational and therapeutic expenses that the Department approved one day and disapproved the next. In some cases, the Department has even rejected the very same expense for one family that it approved for another. These are not parents trying to abuse the system—they are parents trying to find the best educational opportunities for their children as they navigate their families through long, difficult days.

The families we represent are working hard to support their kids, often phoning the Department during visits to the doctor, rewriting complicated expense reports to suit the Department’s ever-changing demands during brief moments of quiet, or emailing the Department to ask for yet another explanation while eating a cold dinner after finally putting their kids to bed. They’ve asked the Department time and again for consistency, clarity, and fairness—only to have their requests ignored and their calls put on hold. It isn’t supposed to be this hard. ESAs are supposed to empower families, not break them. “We shouldn’t have to get lawyers to get answers from the Department,” as one mother put it.

You can read the complaint and learn more about the case here.

Veronica Thorson is a Staff Attorney at the Goldwater Institute.

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