January 7, 2020
By Timothy Sandefur
The Goldwater Institute today filed a lawsuit against the Arizona Department of Education on behalf of several families who participate in the state’s Empowerment Scholarship Account program and have suffered from the Department’s mishandling of that program.
As we explained in a letter
to the Department last month, its policy of requiring parents to have their prior
quarterly expense reports approved before they get the funding to which they’re
entitled—an approval that takes weeks or even months to receive—violates state
law. So does the Department’s creation of its ESA Handbook, which includes dozens of rules that parents must
follow to participate in the program—but which was written without following
the procedures required by the Arizona Administrative Procedure Act.
That Act requires agencies
to go through a process whenever they create new rules—a process that includes
extensive input from the public. The Department must first publish its proposed
rules, and allow both written and spoken input from citizens and organizations
that might be affected by those rules. It must also provide information about
how the rule will affect the public, and submit information to the Governor’s
Regulatory Review Commission, for its review.
But the Department did
none of these things. It simply adopted the Handbook
without consulting the public. Its Handbook
therefore contains scores of rules that parents must follow that were adopted
without any public comment or the approval by other agencies that the law
requires. Making this problem even worse, the Department regularly changes the Handbook—altering its rules arbitrarily
from one year to the next—again without following the laws that require public
involvement.
Back in 2017, we raised
these concerns in a letter to the office of the Attorney General. Their answer
was that the Handbook is just a set
of explanations, not rules that parents are required to follow. But that’s not
true: the law defines a rule as “an agency statement of general applicability
that implements, interprets or prescribes law or policy, or describes the
procedure or practice requirements of an agency.” That’s obviously what the Handbook does—and parents are routinely
told to follow it.
Worse still, the Department itself often seems unable to make sense of its own rules. Its implementation of the ESA program is constantly changing, resulting in unpredictable and arbitrary outcomes. Parents who ask the Department if an expenditure will be approved are sometimes told “yes” and sometimes “no,” without no clear justification for the difference in treatment. Some parents who have been told that an expense is not proper have learned that other parents were approved for the same expense—and upon asking the Department for an explanation, have had the original refusal reversed. In these and other ways, the Department’s implementation of the ESA program has proven arbitrary and confusing.
A few days ago, the
Department replied to our December letter with a letter of its own in which it
failed to answer any of our concerns, but merely reiterated its insistence that
parents satisfy its illegal, time-consuming pre-approval process—a process
that’s so slow, parents are sometimes forced to remove their kids from classes,
due to the Department’s failure to make good on its legal obligation to provide
funding—or even to pay out of their own pockets for tutoring services. When
they do that, they can’t be reimbursed from their ESA accounts. And, as for the
Handbook, the Department gave no
legal justification for fashioning these rules without following the legally
required procedures. This leaves Goldwater’s clients no choice but to file
suit.
You can read more about
our case here.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.
