Parents shouldn’t need a permission slip to buy their children a biography of Abraham Lincoln, or a copy of The Federalist Papers, or an edition of Wilfred McClay’s textbook The Land of Hope: An Invitation to the Great American Story. Yet the Goldwater Institute has uncovered that under the absurd logic of the office of Arizona Attorney General Kris Mayes, such materials constitute educational purchases only if a parent can produce a “curriculum” explicitly calling for their specific use.
Perhaps worse, the AG’s office has also used its power to threaten State Superintendent of Public Instruction Tom Horne and the staff of the Arizona Department of Education (ADE) into complying with its theory through a demand letter to the agency earlier this month, forcing the rollback of parental rights established under the state’s Empowerment Scholarship Account (ESA) program.
In a new letter sent today to Superintendent Horne, the Goldwater Institute has revealed the radical reinterpretation of state law necessary to justify this attack on parents and the program. The letter highlights AG Mayes’ attempt to overrule state lawmakers, the members of the state board of education, and the practices established by administrations of multiple successive state superintendents of public instruction from both political parties.
Specifically, the AG’s office has proclaimed that any purchase of “supplementary materials” (including things like textbooks, workbooks, flash cards, study guides, and more) using ESA funds is illegal unless accompanied by a written curriculum specifically calling for use of that specific material. Yet this reflects neither the intent nor letter of state law, nor common sense.
Over the past decade, Arizona legislators have repeatedly refined the language of state law to make clear that the ESA program is intended to support not only materials directly called for in prepackaged curricula, but also “supplementary materials” more broadly. But despite this statutory direction, years of department history and practice, and explicit rules from the state board of education all allowing the purchase of such items, the AG’s office has chosen to wage legal war to the contrary.
It is all the more ironic that parents are now vilified for the purchase and use of supplemental materials for their children, when many public schools use supplemental materials more often than officially approved textbooks. And remarkably, the same activists on the left who oppose basic academic transparency within government-operated public schools now wish to force parents to justify even the most self-evidently educational materials they use in the ESA-supported instruction of their own children.
As noted by Arizona Speaker of the House Ben Toma, the unprecedented intrusion and second-guessing by the AG’s office into ADE’s administration of the ESA program is just the office’s latest attempt to advance a novel legal theory in order to hijack the legislative deliberations and decisions of state lawmakers. Indeed, just days before firing off its attack against ADE for its application of state statute, the AG’s office was forced to concede and drop its efforts to override the provisions of the recent bipartisan state budget agreement. The AG’s demands against the ESA program should similarly be rejected by the state department of education, the state board of education, and the judicial system of Arizona.
The department of education should administer the ESA program in accordance with state law. It is not for political activists or allies of an attorney general or governor who are committed to dismantling and undermining school choice to simply invent new obstacles or radical reinterpretations of statute. Rather, it is essential that the sovereignty of state lawmakers to establish law be preserved and protected from ideologically driven animus and opportunism.
Tens of thousands of Arizona families have gained access through the ESA program to educational opportunities they had found lacking in the public school system. The objective of our elected officials should be to help ensure the efficient operation of this program, not to devise arbitrary obstacles intended to chill families from its use, nor intimidate members of other branches of government into submission to their political crusades.
You can read our letter here.
Matt Beienburg is the Director of Education Policy at the Goldwater Institute. He also serves as director of the institute’s Van Sittert Center for Constitutional Advocacy.
