By Staff Reporter |

Arizona Superintendent of Public Instruction Tom Horne issued a statement of support for a lawsuit challenging Attorney General Kris Mayes’ restrictions on the state’s school choice program.

Horne said that he maintains concerns that Mayes will demand the return of Empowerment Scholarship Account (ESA) funds from families based on her interpretation of the laws governing allowable expenses. 

In July, Mayes advised the Arizona Department of Education (ADE) that, per her interpretation of the law, parents should no longer be reimbursed for supplementary educational materials not expressly outlined in curriculum.

Though Mayes acknowledged that the statute on which she based her interpretation didn’t offer a definition of “supplemental materials,” she argued in her letter to Associate Superintendent John Ward that the State Board of Education’s definition of the term should apply: “relevant materials directly related to the course of study for which they are being used that introduce content and instructional strategies or that enhance, complement, enrich, extend or support the curriculum.”

Mayes’ application of this definition requires explicit mention of all supplies required within a curriculum: even things like pencils and erasers. The ADE handbook doesn’t require documentation of items “generally known to be educational” in their purpose, such as pencils and erasers.

The attorney general directed Ward to provide documentation of total supplementary material expenditure from 2019 to present, as well as funds spent on curriculum materials without curriculum documentation and approved textbooks lacking proof of requirement by a qualified school or eligible postsecondary institution. 

In response to Mayes’ directive, the Goldwater Institute sued on behalf of ESA mothers Velia Aguirre and Rosemary McAtee. The two mothers homeschool their children: Aguirre homeschools all three of her children, while McAtee homeschools seven of her nine children.

In their argument, the Goldwater Institute argued that Mayes’ directive was not only in violation of the law, it was a jeopardy to the existing backlog of tens of thousands of purchase orders — an issue that would inherently impact the education of many children relying on those ESA funds.

The Goldwater Institute also pointed out in a press release that not even public and private school curriculums necessarily list supplementary items such as pencils and erasers.

In a statement, Horne expressed hope that the Goldwater Institute would prevail in its lawsuit.

“The Department of Education concedes the argument of the Goldwater Institute. When this issue first arose in July, my concern was that the Attorney General could force Empowerment Scholarship Account holders to return funds if they did not comply with her office’s interpretation of the law. This lawsuit will settle the issue in court and my sincere hope is that the arguments made by Goldwater will prevail.”

Horne had issued an anticipatory show of support for a hypothetical lawsuit from the Goldwater Institute in a response on the ADE page for ESAs immediately following Mayes’ letter. Horne clarified that a prior court decision bound ADE from having the standing to file lawsuits.

The superintendent said that he doesn’t agree with Mayes’ interpretation that supplementary materials are required to be tied to curriculum. However, Horne said that Mayes’ directive was one his department advised him that he couldn’t challenge and win. 

As of Monday, over 78,600 students were enrolled in the ESA Program. 

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