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:
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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