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Protecting Educational Freedom for Special-Needs Families

Niehaus v. Huppenthal

Case Status

Date Filed

November 21, 2011

Last Step

Victory! The Arizona Supreme Court declined to take the case.

Next Step

Case Overview

In the 2011 legislative session, the Arizona Legislature passed the Empowerment Scholarship Account program, which allows parents of special-needs children to withdraw their children from public schools and use a portion of the money that would have gone to the local district to design their own educational plan.

In 2009, the Arizona Supreme Court struck down two school voucher programs, one designed to help students with special needs and another for foster children. The court found these programs violated the Arizona Constitution’s ban on aid for religious or private schools. The court reasoned that even though a tuition check was dispersed from the state to the parent, parents could only endorse the check to a private school of choice. The parents’ lack of control over the state funds meant the state was essentially writing tuition checks directly to private and sectarian schools.

Two weeks after the court’s ruling, the state legislature acted to rescue students in the voucher programs by passing a corporate tax-credit that provided scholarships to children with special needs and in the foster care system. The tax credit allowed many students formerly on the voucher program to remain in their school of choice, but its benefits are limited. There is a cap on the amount of tax credits the state will provide, and the economic downturn has prevented the program from reaching its potential.

After the ruling on the voucher programs, the Goldwater Institute continued to research and produce reports on the concept of an education savings account program for students in K-12, a program Goldwater first proposed in 2005. Unlike the voucher program, which only allowed parents to direct state funds to private school placements, as enacted, the Empowerment program deposits 90 percent of student funds in a private account controlled by parents and allows parents to spend the money on a wide assortment of educational options, including tutoring, speech or instructional therapy, online programs, and tuition.

In short, the program was custom-made to maximize parental choices while also correcting the features the Arizona Supreme Court cited when it ruled the voucher programs unconstitutional. By giving parents direct and expansive control over how the money is spent, the state is sufficiently disconnected from the selection process and thus cannot be accused of directing money to private or sectarian schools.

The Arizona School Board Association, the Arizona Education Association, and their allies challenged the constitutionality of the program in court. The Goldwater Institute joined forces with the Arizona Attorney General’s office and the Arizona chapter of the Institute for Justice to defend the program.

Case Logistics

The client in this case is the Goldwater Institute itself. As the originator and developer of the Empowerment Scholarship Account program, the Goldwater Institute has the legal right to join the lawsuit and fight to protect the program.

Maricopa County Superior Court Judge Maria Del Mar Verdin.

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