Families throughout Arizona breathed a sigh of relief last week when a three-judge panel of the Arizona Court of Appeals affirmed a lower court’s ruling that the Arizona education savings account (ESA) option does not violate the Arizona state constitution.
The Arizona legislature created the ESA program in 2011. The Arizona School Boards Association and the Arizona Education Association immediately filed suit, claiming that ESAs were unconstitutional because they allowed public funds to be used at schools of religious affiliation. The Arizona district court dismissed the lawsuit, finding that rather than provide aid to private or religious schools, the ESA provided parents the opportunity to make their own genuine private choices as to where to spend their funds.
The plaintiffs appealed this dismissal, and on appeal the court Tuesday upheld the lower court’s ruling that the ESAs did not violate any constitutional provisions because of “parental choice among educational options.” Parents are not confined to one option to use their ESA funds but a variety of pre-approved options.
The court also ruled that the “ESA is neutral in all respects toward religion and directs aid to a broad class of individuals without reference to religion.” Furthermore, “the specified object of the ESA is the beneficiary families, not private or sectarian schools”—meaning the money funds and follows the student and is not given directly to any particular institution, religious or otherwise.
The plaintiffs can appeal to the Arizona Supreme Court, but Tuesday’s decision is still a major victory for school choice in the Grand Canyon State. But this decision should encourage more states to pursue innovative approaches to providing families with choice in education.
ESAs represent the future of choice in education. Arizona’s innovative program is the first of its kind. With an ESA, parents of qualified students can withdraw their children from their assigned public schools and have 90 percent of what the state would have spent on the child in the public system deposited directly into an ESA. Parents can then use those funds to pay for a variety of pre-approved educational services and providers, such as private school tuition and fees, educational therapy services, textbooks, private online learning, and tutoring. Parents can roll over unused ESA funds from year to year, and funds can also be rolled into a college savings plan to pay for college courses and textbooks.
Originally limited to special needs students, the program now is open to low-income children in underperforming schools, children from active-duty military families, and children in foster care, making 220,000 Arizona children eligible for ESAs.
A recent study by Heritage education policy fellow Lindsey Burke, published by the Friedman Foundation for Educational Choice, found that more than one-third of Arizona families are using their ESAs to fully customize their children’s educational experience.
The stories told by families using ESAs demonstrate that the winners in Tuesday’s court decision are the children benefiting from the ability to match schooling options to their unique learning needs.
ESA parent Michael Howard says of his second-grade son Nathan, who has special needs, “Two years ago we weren’t even sure if we were ever going to have a conversation with him. The only reason this is possible is because we could find programs that meet his needs with ESA funds.”
It is likely that Arizona’s ESA program will have to fight again in the state supreme court, but consensus on the appellate court is very encouraging. As Tim Keller with the Institute for Justice, which defended the program in court, stated:
We will continue to defend the [ESA] program when the teachers’ unions file their inevitable appeal to the Arizona Supreme Court.… We remain confident that the Arizona Supreme Court will uphold the…program and declare that empowering parents is an expansion of liberty that is perfectly consistent with Arizona’s Constitution.