Arizona Court Unanimously Upholds Education Savings Accounts as Constitutional

By: Lauren Lutz

October 1, 2013 marked a victory for school choice when the Arizona Court of Appeals issued a unanimous decision upholding Arizona’s Empowerment Scholarship Account program in Niehaus vs. Huppenthal. Discussing both the constitutionality and benefits of the program, Judge Jon W. Thompson wrote, “This program enhances the ability of parents of disabled children to choose how best to provide for their educations, whether in or out of private schools.”

Under Arizona’s Empowerment Scholarship Program, certain qualifying parents—those with specials needs children, children in failing public schools (either receiving a D or F), children in military families, or adopted and foster care children—may apply for an Arizona Empowerment Scholarship Account, commonly known as an education savings account (ESA). ESA’s allow parents to control over 90% of their “child’s share of state education funding,” empowering them to tailor their child’s education to their unique educational needs.

ESAs give parents the flexibility to direct funds not only toward their child’s tuition, but toward numerous eligible education expenses, including private tutoring, exam fees, and educational therapy. According to a Friedman Foundation Report, while 34.5% of all ESA’s go unspent, the majority of spent funds (85.3%) are directed toward tuition for private schooling, while 7.12% of parents use the opportunity to invest in education therapy for their children, and 4.2% utilize funds for tutoring. Any unused funds can be rolled over from year to year, allowing parents to save up for future secondary or higher education expenses.

The plaintiff in Niehaus vs. Huppenthal likened their claim to the 2009 Arizona Supreme Court case of Cain v. Horn, which found school vouchers for private and religious schools to be an unconstitutional use of public funds. However, because ESA allows funds to be used for any variety of educational purposes, including tutoring and therapy, the court rejected this claim, saying that “the Religion Clause was not intended to place a blanket prohibition against channeling public funds to religious organizations, but rather to prohibit ‘assistance in any form whatsoever which would encourage or tend to encourage the preference of one religion over another, or religion per se over no religion.’” The court placed emphasis on the fact that parents’ individual choice would ultimately be responsible for where the funds were directed.

Many parents and children are already benefitting from a customized education experience, like Kym Wilbur, a mother who uses an ESA for her 8th grade son Zach:

“I use Zach’s ESA funds for other things than just tuition. Because Zach is more on the moderate to severe functioning level, his funding can be used more broadly. I have a private tutor for Zach, and I can use the (ESA) funds for that. With the ESA, I can actually go out and buy things for our home program, such as additional speech tools.”

The Arizona Empowerment Scholarship Account program has given parents the tools they need to ensure success for their children, and the Arizona Court agrees.

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