Samantha Boesl has high hopes for her 10-year-old son, Blake.
He’s always been smart, a visual learner with what his mother describes as a photographic memory.
But he’s also been challenged. Blake is autistic, and is easily distracted and influenced by the behaviors of those around him. He’s also had to contend with a host of medical problems, from debilitating food allergies to a skull fracture received when he fell out of a window at age five.
Because of his autism, Blake is sometimes unable to communicate his pain, Boesl says. That hurt and frustration can manifest itself in inappropriate, even self-destructive, behavior.
When Blake entered kindergarten at the local public school in the Boesl’s Ahwatukee Foothills neighborhood, he tested as academically ahead of his peers. By the time he finished fourth grade earlier this year, he had fallen behind.
The public school is not meeting the needs of Blake, a special-education student who qualifies for a special instructional plan under federal and state laws, according to his mother. Boesl says she has used her own money to pay for the additional academic instruction and a barrage of therapists Blake needs. That added care has cost Boesl and her husband, Chad, thousands of dollars over the years.
And yet, Blake’s progress is being hindered by the “cookie cutter” approach the public schools have in dealing with children who have special needs, she said.
But Boesl sees hope in a new state law that allows parents of disabled children to withdraw them from public schools and use the money that would have gone to the local district to design their own educational plan.
That means parents like the Boesls can customize how their children learn, using the money for a broad range of services that might include a mix of private school or home school instruction, tutoring, and specialists to deal with individual emotional, physical or behavioral issues.
“He can contribute to society,” Boesl said of Blake. “But he’s not going to have the opportunity to do it in public school. They’re not meeting his needs.”
“He is smart. Give him the right tools. The schools, they are cookie cutting for every kid and Blake isn’t getting the right custom fit that he needs at this age bracket. The cookie cutter thing is not going to work for Blake. You can’t tell me he’s not going to contribute to society. He will. But if I don’t put the right tools now in place for him, then he won’t be able to contribute.”
The law, which officially takes effect July 20, is built around Empowerment Scholarship Accounts (ESAs), controlled by the parent or guardian with the condition that the funds be used to provide education that includes instruction in reading, math, social studies and science.
To qualify, the child must be an Arizona resident with a disability under federal or state law, and must have either attended a public school full time or received a scholarship from a school tuition organization last year.
The parent must agree not to enroll the child in a public school, including a charter school, and cannot receive other money through a scholarship from a School Tuition Organization. Any child who meets those requirements qualifies. There is no cap on the number of eligible students.
Under the law, which was passed in the 2011 legislative session, the state will redirect 90 percent of the money that it would have paid to the local school district into a qualifying child’s ESA. The amount will vary, depending on the severity of the child’s disability. State education officials say the money available to parents through the accounts will range from about $5,000 for kids with minimal learning disabilities to as much as $26,600 for those with multiple and severe conditions.
A parent with an account will be able to use the money to pay for private schools, books, therapists or other services needed to create the most appropriate learning environment. Money left in the account when the child finishes high school could be used to help pay for college.
Though the law officially goes into effect July 20, the Arizona Department of Education began pre-accepting applications July 1. Parents who wish to qualify for the program need to apply by July 27, and have all of their paperwork to the department before August 1. The initial payouts into the education accounts will be available for the upcoming school year.
Public school organizations are threatening to challenge the program, arguing it violates state constitutional provisions that prohibit the expenditure of state funds for private or religious schools. The Arizona School Boards Association in June sent a letter to Attorney General Tom Horne asking that he block implementation of the law. The letter cites a 2009 Arizona Supreme Court case that voided two similar laws that allowed parents or guardians of disabled or foster children to send them to private or parochial schools. The court ruled that since the parent did not control how the money was spent, the old laws amounted to a direct payment from the state to private schools.
Clint Bolick, director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, said the program remedies the court’s concerns by giving parents direct control of the money. If the law is challenged, the Goldwater Institute will help defend it, Bolick said.
DEALING WITH PAIN
Samantha Boesl has taken an active role in Blake’s education since he was diagnosed with severe autism when he was about two years old. They were living in Washington state at the time. Blake was immediately enrolled in a preschool program for children with disabilities.
Blake was not getting the services he needed, such as speech and occupational therapy, Boesl said. She volunteered to help in the Blake’s classroom, but was told she could not do so because she was not a district employee. So she got a job at the school as an aide to the special education director.
When Blake was three, he was accepted into a university study that incorporated resources and techniques beyond traditional instruction to devise a new approach to teaching kids with disabilities. That program was tailored to the individual needs of each student, and it was through that study that Boesl became familiar with innovative ways to teach children with autism.
Outside of the classroom, Boesl opened a preschool in her home, employing a speech pathologist and trained university students to provide services to children with special needs that they were not getting in the public schools.
Aside from his academic challenges, Blake struggled with a variety of physical ailments. He had severe food allergies that led to painful reactions. But because he was unable to express himself verbally, his pain manifested itself through his behavior, Boesl said.
“Because they are fighting their biological needs it comes out as ‘I’m hurting but I can’t tell you so I’m going to act out,’” she said. “They can’t tell you their whole body feels like it’s on fire because they’re having an allergic reaction to the food they ate. He has to deal with all that pain.”
When Blake was five years old, he unlatched a second-story window and fell out, sustaining a skull fracture. Worse, he continued to try to reenact the behavior, creating a dangerous situation that required him to be watched constantly.
Within weeks the Boesl’s moved to Arizona, into a single-story home in the far west end of Ahwatukee Foothills.
Blake started kindergarten at the neighborhood public school, which did not have a separate resource center for children with his disabilities until they were in the third grade, Boesl said. District officials wanted Blake to go to a different school, where the appropriate special education program was available in kindergarten. But Boesl believed it was important for Blake’s social development that he attended school with other kids from the neighborhood.
Blake struggled with a variety of behavioral, physical and social issues, and required constant supervision. He often mimicked inappropriate behavior of his classmates, and continued to be a safety concern because he tried to reenact his fall from the window.
The school did provide an aide, who Boesl describes as “an amazing woman,” as part of Blake’s state-required instructional plan. But public-school special education aides are assigned to the classroom, not to the individual student, she said.
Blake also was not getting the individualized instruction and therapies he needed through the school, Boesl said. To supplement his schooling, the Boesls hired an array of occupational, behavioral, physical and speech therapists to deal with Blake’s varied needs. They also pay to send Blake to a private after-school math and reading program that is geared toward individual needs and abilities of students.
All of that is costly, but necessary to get Blake the individual attention he needs to deal with the range of physical, emotional and academic issues he faces, Boesl said. Yet despite it all, Blake is lagging, she said. When he started kindergarten, Blake was testing academically at about the second grade level. When he finished fourth grade earlier this year, he had fallen behind grade level.
Boesl does not fault the public school Blake attended, or the educators who worked with him. Public schools are set up to teach groups of children, not to give each child the individual attention and broad range of services that are needed to ensure academic, behavioral and social development reaches its maximum potential, she said. That is particularly true for children with multiple disabilities.
“There’s never going to be a perfect fit,” Boesl said. “But when you know that it’s not, do you have the means, do you have the opportunity to even change that? Right now, you don’t.”
Boesl hopes an Empowerment Scholarship Account will give her that opportunity.
The idea behind the scholarship accounts is to give parents more control in custom crafting their children’s educational plans. The Arizona program is the first in the nation that gives parents of children with special needs so much control, said Jonathan Butcher, education director at the Goldwater Institute, which helped craft the legislation. Traditional vouchers in other states essentially use public money to pay the private school tuition for those who qualify, Butcher said. The Arizona scholarship money is not restricted to tuition.
That means the parent of a child who needs specialized therapy, such as behavioral counseling, to maximize academic success can use money from the education account to pay for it. They also are not confined to a traditional classroom. Parents can use the money to enroll their children in online classes or a variety of other innovative programs if those are more appropriate, Butcher said.
“This comes at just the right time because we are seeing, over the past several years, virtual education and online programs starting to really come into their own,” Butcher said. “When you pair what is becoming a whole universe of options with a parent’s ability to choose from any of them, I think that makes for a great combination.”
Voucher programs that give parents of children with special needs more options have proven effective in other states -- particularly Florida, where one has been in place for more than a decade, Butcher said. Studies have shown disabled students in the Florida program have improved their test scores at rates well above the national average for their peers. In addition, students with mild disabilities who remain in public schools that are near private schools with children in the program have also shown significant gains. That suggests the competition from the voucher program puts pressure on the public schools to improve, Butcher said.
Giving parents more options forces public schools to improve or face an exodus from the system, said Liz Dreckman, president and executive director of the Arizona School Choice Trust, a school tuition organization that is helping parents enroll in the new program.
“We believe every parent whose child’s needs are not being met in the system they are assigned to should have the option to put their child somewhere else, regardless of financial status or resources,” Dreckman said.
With the ESA’s, “the parent can spend the money on what the child’s specific need is versus on the system that is telling them what their kid needs. Every kid is going to be better off because the schools are going to become keenly aware that if they don’t do what the children need, the parents can walk.”
The Goldwater Institute sought comments for this story from several organizations that have challenged prior parental choice laws passed in Arizona, including the Arizona School Boards Association, the Arizona Education Association and the Arizona Association of School Business Officials. No one from any of those organizations returned phone calls.
Stacey Morley, director of policy development and government relations at the Arizona Department of Education, said she expects about 250 to 300 children will be enrolled in the program initially, based on the level of participation in the voucher system that was ruled unconstitutional in 2009.
Not all parents will benefit from ESAs, Morley said. The amount each parent receives will vary greatly, depending on the diagnosed disabilities, their individual instruction plans and even what school district they attended last year, Morley said.
Many children with the most severe disabilities are already placed in residential settings such as group homes, and the amount of money through the scholarship would not go very far in offsetting the care they currently receive, Morley said. Others with slight learning disabilities would only receive a minimal amount, not enough to pay for much at a private school, she said.
Parents who miss the August deadline can apply later in the year with a December 1 deadline to qualify for an ESA in the following semester.
The scholarship accounts are the result of a series of laws and lawsuits involving parents of disabled children.
In 2006, the Legislature passed two laws creating a voucher system for the parents of children with disabilities and the guardians of foster children. Both gave the parents the option of enrolling the children in private or parochial schools, with the state paying the bill through a voucher. Though the voucher was made out to the parent or guardian, they could do nothing with the check except endorse it to the private school they had selected.
A coalition of public school organizations, including the school boards association and teachers’ unions, sued in 2007, claiming the new laws violated prohibitions in the state constitution against the use of public money to support either private or religious schools. The Arizona Supreme Court agreed in the 2009 case Cain v. Horne. The voucher programs as enacted did not give parents any real control over their money, the court ruled. The only thing they could do with the check they received from the state was to endorse it to a private school. That amounted to using taxpayer dollars to directly benefit private schools, the court held.
But the court included a caveat in its ruling.
“There may well be ways of providing aid to these student populations without violating the constitution,” the unanimous opinion from then-Justice Michael Ryan stated.
In an exchange during oral arguments between Justice Andrew Hurwitz and Donald Peters, who represented teachers unions challenging the laws, Hurwitz asked if Peters thought it would be permissible for the state to give an educational grant to parents and allow them to “spend it as you wish.”
“Yes,” Peters replied.
“And if they spend it on a private or parochial school, or on a public school transfer districts, that would be okay?” Hurwitz continued.
“Yes,” Peters said. “I think the dividing line is how much the state constrains the choice.”
That exchange guided the drafting of the new law, said Clint Bolick of the Goldwater Institute. Both the court’s decision and the lawyer for the teacher unions acknowledged giving parents more choice is a constitutional way of allowing public money to be used for private schools, Bolick said.
The ESAs do that by giving the parents nearly complete control over the money rather than requiring it go toward private school tuition, as the old voucher program did, he said. The accounts can only be used for education. But within that limit it is the parent who determines how the money is spent, and it is possible none of it will go to a private school, Bolick said.
Peters did not return phone calls seeking comment. He is the lawyer who sent the letter in June to the attorney general’s office asking that it halt implementation of the ESA law. Cain v. Horne made clear that the state cannot fund private schools, either directly or indirectly, Peters wrote. The new law does the same thing as the statutes the court voided in that case, according to Peters.
The requirement that parents give up their right to enroll their child in a public school in return for receiving payments into their ESAs also is unconstitutional, Peters wrote. The state cannot force a person to give up a constitutional right in return for a public benefit, he said.
Tim Hogan, one of the lawyers who challenged the old laws, said there is little difference between them and the new statute. The exchange between Hurwitz and Peters carries no legal precedence, so is irrelevant, Hogan said.
“It’s still aid to private schools,” Hogan said. “I know the proponents of this legislation took an exchange between the lawyer and Justice Hurwitz and they thought that they found some magic bullet here. But I don’t see how it changes the underlying structure, which is the state funds are going to private schools.”
Hogan said he is certain a lawsuit will be filed challenging the law.
Sending a demand to the attorney general, and giving him 60 days to act, is a legal tactic to ensure that those bringing a lawsuit will recover their attorney’s fees and court costs if they are successful, under state law.
Bolick agreed the exchange between Hurwitz and Peters does not carry legal precedence, but said it does signal the court’s thinking. As to giving up the right to a public education, Bolick said a parent with a scholarship account retains that right and can re-enroll the child in a public school by opting out of the system.
“On a larger scale this is a fundamentally different way of looking at the provision of public education,” he said. “It really is a transformation of the government’s role into a facilitator and funder of education rather than as a sole provider of education.”
REACHING HIS DREAM
After the Supreme Court’s ruling, the Legislature adopted a stopgap law that allows parents with disabled children who were receiving the vouchers to qualify for scholarships funded by corporate donations through School Tuition Organizations. Though the companies that contribute receive tax credits, donations raised only about $1.5 million for the program in the 2010 fiscal year, less than a third of the annual cap imposed in the law.
For Samantha and Chad Boesl, the legal fights are less important than finding and paying for the array of instruction and therapies that Blake needs to succeed.
The therapists and tutoring they have gotten on their own are paying off. A few years ago, Blake could only talk in one- or two-word sentences, and his behavior was difficult to control, Boesl said. Today, he is talkative and outgoing. He is able to focus on his instruction for longer periods of time, and is remarkably adept at learning new skills.
If she qualifies for the program, Boesl said she plans to use the money to pay for a private school she’s already picked out, and supplement that instruction with an after-school academic program and specialists to work on Blake's physical and social needs.
“I will be giving up this chaotic environment to maybe a more custom environment for him,” Boesl said. “This scholarship will give me the money to hand select what I need for him.”
“This is huge. It’s like the stars are lining up for my son; that he won’t have to live a life in a group home. He will live a life with us. But he can have his dream. He can do whatever he wants. Just give him a chance.”