kris mayes
AG Kris Mayes Begins Walking Back ESA Crackdown Following Goldwater Lawsuit

November 2, 2024

By Matthew Holloway |

Arizona Attorney General Kris Mayes is facing serious criticism after legal threats issued to families using the Empowerment Scholarship Account (ESA) program. The threats slammed the brakes on purchasing “supplementary materials” considered self-evident in need by the State Board of Education.

As reported by the AZ Mirror, a July notice from Democrat Attorney General Kris Mayes’ office told the director of the ESA program that they may be in violation of Arizona law by issuing reimbursements to families for supplementary education materials, (i.e. flash-cards, periodic tables of the elements, early books for new readers) without requiring that parents provide documentation that it is required under a curriculum.

In the six-page letter, Assistant Attorney General Kathryn Boughton wrote, “Approving ESA funds for materials that have no nexus to the student’s actual curricular needs contradicts the intent of the program and constitutes a payment of funds made without authorization of law.” She went on to claim that doing so, “may enable account holders or vendors to engage in fraudulent behavior, such as purchasing items with ESA funds solely for the purpose of resale.” 

She advised that director, John Ward stop authorizing the reimbursements immediately.

Faced with a potentially damaging legal battle, Superintendent of Public Instruction Tom Horne told parents in a statement that he would have to concede the point for now. “When I received the attorney general’s message, I sent it to the most knowledgeable people in my department,” Horne wrote.

“I asked them to look at it, not as an advocate, because we all disagree with the Attorney General, but in a neutral way, as though they were judges to determine if they could give me a reasonable assurance of success. They analyzed the statutes on which the attorney general relied, and indicated to me that as a neutral judge, they would rule against me if I made a fight out of it and refused to comply. Getting into a fight and losing, would be much more damaging.”

However, the tune from Mayes’ office changed sharply just one day after the Goldwater Institute filed lawsuit challenging the blatantly partisan determination. Attorneys from Goldwater representing two Arizona mothers wrote, “Following …unsuccessful legislative attempts, the office of Arizona Attorney General Kris Mayes initiated a new effort in July 2024 to dramatically limit the use of ESA funds, calling for a prohibition on the purchase of basic educational materials, including books, workbooks, and other ‘supplementary materials’ unless parents could provide an explicit ‘curricular’ document justifying the use of each specific book title or material for their child.”

“Arizona law expressly allows the purchase of such materials with ESA funds, however. In fact, state lawmakers added clarifying language in 2020 with the explicit purpose of ensuring that such purchases would not be denied, following the actions by former State Superintendent Kathy Hoffman that had restricted the purchase of many such items. The State Board of Education has likewise approved rules for the program explicitly permitting the purchase of these materials without additional documentation.”

The AG’s Office then began a campaign of feverishly walking back their determination with a statement responding to the suit. “The Attorney General has simply stated what is required by law,” adding, “The law doesn’t prevent parents from purchasing paper and pencils, but it does require that materials purchased with ESA funds be used for a child’s education.”  

But this isn’t what Mayes’ office said in July when they demanded Superintendent Tom Horne’s department “promptly cease approving supplementary material expenses without the requisite documentation of a curriculum nexus,” no matter how self-evidently educational the materials are, as Matt Beienburg,  the Director of Education Policy at the Goldwater Institute pointed out in an Arizona Daily Independent op-ed.

As Beienburg notes, Mayes’ office, far from simply targeting extravagant spending, threatened ESA administrators with legal liability unless they applied the same requirements on the list of obviously educational materials approved in the State Board of Education’s ESA Handbook: things like “books,” “workbooks,” “writing utensils,” “atlases/maps/globes,” “calculators,” “flash cards”, etc.

“These materials are what Attorney General Mayes’ intervention is now blocking en masse—unless parents can cite a specific pre-established curriculum calling for the individual book title or resource,” Beienburg explained.

“In other words, the Attorney General’s office still demands that flashcards and other self-evidently educational materials be allowed only if a parent can produce an arbitrary piece of paper calling for their specific use.

The Attorney General’s attempted public deflection away from this fact demonstrates the absurdity of her summer demands.  Perhaps she really does believe that families should have to justify their purchases of books like ‘Brown Bear Brown Bear, What do You See?’ and ‘Little People Who Became Great’ to wiser government bureaucrats. But for the rest of us, such restrictions are clearly nonsensical and—under state law, illegal.

The Attorney General is supposed to uphold state law, not torture it to impose her policy preferences. We encourage the Attorney General to withdraw her summer demand letter, or else acknowledge flatly that her position is that families should have to justify why they picked ‘Brown Bear Brown Bear, What Do You See?’ to read to their own children.”

Matthew Holloway is a reporter for AZ Free News. Follow him on X for his latest stories, or email tips to Matthew@azfreenews.com.

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