Education Empowerment Savings Accounts

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Attorneys on opposite sides of a lawsuit challenging the constitutionality of Arizona’s education empowerment savings accounts make their cases for and against the program.

Ted Simons: A new state law that allows public money to be used to send disabled kids to private or religious schools is unconstitutional according to organizations that are challenging the law in court. Earlier this year state lawmakers established education empowerment scholarships for disabled students who leave public schools to seek an education elsewhere. Those students are eligible to receive about 90% of what the State would have spent to educate them in public school. Courts have struck down similar programs in the past. Proponents say this one is different. Both sides argued their cases in a hearing in Superior Court. Joining me is Chris Thomas, for one of the groups challenging education empowerment scholarships. And Clint Bolick, an attorney from the Goldwater Institute that is defending the program. Thanks for joining us us.

Ted Simons: This is different from tuition tax credits and vouchers how?

Clint Bolick: Tuition tax credits were upheld, vouchers were struck down. You can use the money for a wide variety of educational purposes, even if you educate your child at home. You can purchase tutoring, therapeutic services. You can get online education. Not a single dollar of the money is necessarily earmarked for private schools. And that is what the constitution forbids.

Ted Simons: The idea that it's money goes to parents, the parents get to decide as opposed to having a limited menu option.

Chris Thomas: That's the theory that was rejected by the Arizona Supreme Court. The fact that the parents direct the money does not necessarily make it constitutional under the Arizona constitution. If there is public money going to a religious private school or even a private school under our constitution, it's unconstitutional. That's what the court held. We don't think these are very different than the vouchers found unconstitutional.

Ted Simons: You're saying it doesn't matter how it gets there, if the public money gets to a private or a religious school.

Chris Thomas: Whether in a direct or indirect fashion, the Kane court says it doesn't matter. The Constitution doesn't hold any water.

Clint Bolick: What's really ironic, apart from the troubling aspect of school boards using taxpayer money to challenge this program in the first place, when they say they don't have enough money for their core duties, apart from that, the State of Arizona already sends thousands of disabled students to private schools under the federal individuals with disabilities education act. They pay the full tuition up to $35,000, $40,000. The other side says, oh, but these remain public students. The constitution doesn't make an exception for that. The key thing here, what the Supreme Court said is that if the state is writing a check to a private school that's impermissible, it's not doing that here. And the parents have no choices except private schools, it's impermissible. That's not the case here.

Chris Thomas: It's very different because the students are still enrolled in a public school. The students still have all of the rights that they would have under the individuals with disabilities in education act. They still have to go through the individual educational plan team to decide whether or not they deserve private placement, if their situation warrants it. It is different. And as to Clint's point about the school board association, we care about public education, that's what we're about. If education savings accounts are found to be constitutional, the Goldwater Institute says it's their design to have them available to all students, not just disabled students. It would end public education as we know it in the state.

Ted Simons: Is it the camel nose under the tent kind of thing?

Clint Bolick: In the year 2011, the notion that every kid should be educated the same way is simply obsolete. Our constitution requires a public school system. We will always have that. But above and beyond that it's great to have additional choices. But Chris contradicted himself a few minutes ago. He said the constitution says if you spend government money in a private school, then it's unconstitutional. That must mean that the tens of thousands of students who Arizona is funding directly now and paying the tuition with a check from the government, they must be unconstitutional, as well.

Chris Thomas: It is significantly different and here's why. When that student is put in private placement, they are still enrolled in a public school. The public accountability is still there. The dollars are still accountable within the public school district. That is different. It's no different than having a contractor, public school districts may have contractors that are private, and some of them may be of a different nature. That is a different kind of situation. You can spend money on a contractor on a public or private placement kind of situation, and that does not offend the constitution.
Ted Simons: Aside from the difference and that sort of thing, if so many special needs kids are being placed in private schools with the agreement of the public schools where's the problem here?

Clint Bolick: Well, the problem is twofold. First of all, the School District has to agree to it. If the school district doesn't agree the parent has to sue the School District. This is enormously expensive. We're seeing here with the empowerment scholarship account, it is the parents' choice as to which direction to go. And we're going avoid costly litigation. As Chris mentioned, it's only 90% of what they otherwise would get. It is actually a net savings.

Ted Simons: Why not give the parents these options, this kind of choice, home school, private school, religious school, whatever. Why not give them that choice?

Chris Thomas: Because it offends the constitution. The object gation of our state legislature is to fund a public school system for all students, and that includes special needs students. The federal government has guaranteed those rights through the individuals with disabilities and education act. We believe disabled students, special needs students are better off within the public schools systems.

Ted Simons: The idea of public money going to private or religious schools, the Constitution does seem clear on this. Chris is mentioning oversight when it involves public schools making that particular decision. Seems pretty clear. What are we missing here?

Clint Bolick: Well, that's not what's happening here many it's like a 529 college savings account which many of the viewers are surely familiar with. It is a savings account owned by the student. There's nothing in the constitution that prohibits that. A lot of parents will use none of the money for private school tuition. They will use it for online education, for tutoring, and any money that's left over can be saved for college. In fact, the students also can enroll in community colleges while they are in the K-12 system. So there's a whole variety of uses here, and the ownership lies in the hands of the parents.

Ted Simons: The idea of aiding individuals as opposed to programs.
Chris Thomas: Well, if that were the rule, and it was a beneficiary theory, it basically wouldn't mean anything. The constitutional provision wouldn't restrict any kind of government action that aids religion. I would go back to what you said to Clint, I agree with you. The Constitution couldn't be more clear. That's what the Supreme Court said in the Kane decision. The clause means what it says, it prohibits exactly the kind of program we are talking about right now.

Clint Bolick: It's interesting, the lawyer for the School Board Association when he was arguing the Kane case in the Arizona supreme court, the justice asked him, what if a variety of choices were made available? He said that would be fine. You see the School Board association is shifting its position. We think the Supreme Court gave us a road map to help disabled kids and handle opportunities. So long as money is not going directly to private schools, and other educational options other than private schools are made available, that it's permissible.

Ted Simons: Last point, what do you make of the Kane hearing?

Chris Thomas: I don't make much of it. It's not evidence for any kind of precedence. It also loses the contempt of how that question was asked. Our lawyer, Don Peters, who represented us yesterday, made 12 that point in his briefs.

Ted Simons: We've got stop it right there, good discussion. Thanks for joining us.

Clint Bolick: Thanks for having us, Ted.

Clint Bolick:Goldwater Institute; Chris Thomas:Arizona School Boards Association;

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