November 12, 2020
By Matt Beienburg and Timothy Sandefur

After months of hearings, and with input from Empowerment Scholarship Account (ESA) parent leaders and the Goldwater Institute among others, the Arizona State Board of Education has adopted critical regulatory reforms and protections for families in the ESA program, addressing the concerns of parents represented by the Goldwater Institute in a lawsuit against the Arizona Department of Education (ADE). But the success of these reforms rests precariously upon ADE’s future good behavior in adhering to them.

Perhaps more important than ever in the age of COVID-19 and school closures, the ESA program helps fund educational expenses for students who have opted out of and/or been poorly served by their local public schools.

State lawmakers tasked the Board this spring with the job of retooling the ESA program’s rules—which previously had been crafted and enforced arbitrarily, inconsistently, and even illegally by Department officials. (The final spark came amid a massive ADE blunder this spring that leaked personal information on 7,000 ESA families to activists of an opposition political group.) The Goldwater Institute went to court to represent several families who sought clarification of ADE’s operating rules, and a court order to require ADE to comply with the law.

But now, the Board of Education and its staff—who deserve tremendous credit for proactively seeking parent and stakeholder feedback throughout the rulemaking process—have adopted new rules aimed at resolving some of the hardships faced by ESA families.

Among the improvements under the new rules:

  • ADE must treat ESA expenditures consistently across families (e.g., not arbitrarily allowing one family to purchase an item while blocking another from purchasing the same item, as they have in the past).
  • To help ensure this, ADE must create an online database of approved and disallowed ESA expenses so that parents will have consistency in knowing what they are allowed to purchase—rather than receiving conflicting and unreliable answers from ADE staff members.
  • ADE must codify and make public the process it uses to review ESA expenses before denying them, and it will no longer be allowed to withhold ESA funding from families if it fails to conduct a timely review of their ESA expenses.
  • ADE must report to the Board every quarter detailed data on the levels of ESA participation, the number of new applications received, and whether ADE has processed them within the statutorily required 45-day window, as well as the Department’s justifications for any denied applications.
  • ADE will no longer be able to indefinitely hold past purchases over parents’ heads: ADE will be limited to auditing only expenditures made during the current and prior fiscal year.
  • Parents will no longer be required to first withdraw from their public school before even applying for an ESA.
  • Parents will be able to appeal ADE administrative decisions (such as having an expense denied or being suspended from the program) to the State Board of Education. (While this provision was required per the legislation passed this spring, the Board also created additional due process protections related to it. In particular, Board staff have created a safety valve for families to continue receiving their ESA funding during an appeals process, so that they will not be forced to go without funding while seeking resolution of their case.)
  • ADE’s ESA program handbook will be subject to approval by the State Board of Education, and the Department will be limited in its ability to make arbitrary changes from year to year (and will be required to clearly identify all revisions each time a new version is released).

These new rules resolve most of the concerns raised by the families we represented, and they likely ensure against a repeat of other problems that these families faced. As a result, these families have settled their lawsuit.

“I’m pleased that the Board has stepped in and clarified the rules in ways that will help protect the rights of parents to choose what educational options are best for their own children,” said Prisca Walton, one of the ESA mothers who participated in the lawsuit against ADE. “I hope the Department will make it a priority to help parents to make these choices as state law requires, and avoid further disputes going forward. Our goal needs to be to get kids the educational opportunities they need, and that means letting parents—who know their children’s needs best—decide.”

Some concerns, however, remain unaddressed by the new rules. These range from protecting parents from being double-charged for purchases, to ensuring that parents always have the tools necessary to make ESA purchases in the first place. And it remains to be seen if ADE will faithfully implement the new requirements—a crucial concern, given the Department’s sometimes lax compliance with state law and its ongoing failures to ensure consistent and fair implementation of program policies for other families during this interim period before the new rules fully take effect on January 1.  

But there is much to welcome in the Board’s new rules. And, encouragingly, the Board itself has already committed to following up with parents via a survey in the coming year to gauge the progress, satisfaction, and remaining concerns with program administration. If the responsiveness from the Board at that point mirrors the good faith efforts they’ve made thus far, parents will have much to be thankful for.

Matt Beienburg is the Director of Education Policy and Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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