The Arizona Department of Health Services (ADHS) is proposing to put a strict limit on childcare enrollment, but a policy group says that’s illegal.
The Goldwater Institute advised ADHS in a letter that such a cap on childcare facilities (preschools, daycares, and day camps, for example) would violate statutory requirements on agency rulemaking.
Arizona law restricts agencies from making any rules that exceed authorized subject matter areas, that supplement a more specific grant of rulemaking authority, and that aren’t specifically authorized by statute.
The Goldwater Institute argued that the proposal to impose a maximum group size on childcare facilities constitutes an authority that ADHS doesn’t possess within their regulatory powers.
“[A]n across-the-board cap on ‘group size,’ independent of any relevant considerations such as child-adult ratio, is not a regulation of ‘staffing per number and age groups of children’ [per their regulatory authority] and it is not justified by any other provision in the statute,” said the Goldwater Institute.
The organization also predicted in its letter that such a proposal would result in a greater burden on childcare facilities and a greater cost for families, in addition to reducing overall childcare availability.
The proposal concerns amendments to two rules pertaining to staff-to-children ratios: 9-5-404 and 9-5-726. The amendment adds on limitations of group size per age group.
Group size limitations begin small with younger children and expand as the ages rise: infants are limited to 10 in a group; one-year-old children are limited to 12 in a group; two-year-old children are limited to 16 in a group; three-year-old children are limited to 26 in a group; four-year-old children are limited to 30 in a group; and both five-year-old children and school-age children are limited to 40 in a group.
The amendments also struck provisions allowing volunteers to be counted as staff in staff-to-children ratios and restricting student aides or qualified teacher caregiver aides from being counted as staff. Also replaced were any instances of staff as “caregivers,” instead renaming them as “child educators.”
In a press release, Goldwater Institute staff attorney John Thorpe said the group size restrictions would not only be an exercise of authority beyond ADHS’ scope, it would serve to restrict families’ critical access to childcare facilities. Thorpe marked the proposal as another example of “ill-informed, heavy-handed bureaucratic regulation” within the state and nationwide.
“Imposing an arbitrary cap on the number of children allowed in a space — regardless of the size of the space, nature of the activity, or number of adults supervising — makes no sense,” stated Thorpe. “It’s especially pernicious during a childcare shortage, as it will force good preschools and childcare facilities to turn away families they’re perfectly equipped to serve for no other reason than an irrational bureaucratic requirement.”
Last December, a report by the Council for Strong America estimated that Arizona lost close to $5 billion annually in earnings, productivity, and revenue due to lack of adequate childcare. Over half of responding parents said they were late for work, leaving work early, missing days of work, or low in their productivity at work due to their childcare struggles.
Nearly 20 percent reported having been let go or fired from their work related to those struggles.
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Citing a report from the Arizona Legislative Budget Committee, the Goldwater Institute debunked the narrative that Arizona’s universal education savings account (ESA) program has harmed students and blown up the states’ budget.
In a lengthy and detailed report from Director of Education Policy at the Goldwater Institute Matt Beienburg, it is made plain that the universal ESA program has been a net-positive development for Arizona’s students, families, and taxpayers.
In a post to X, Beienburg summarized the report writing, “Since universal expansion, AZ enjoyed a $2B budget surplus one year, & an overall K-12 formula savings compared to its enacted budget the second, all as 75,000 ESA students are now being served at lower taxpayer cost $ than their peers in the state’s public school system.”
NEW: Arizona ESAs Defy National Media Propaganda Campaign.
Since universal expansion, AZ enjoyed a $2B budget surplus one year, & an overall K-12 formula savings compared to its enacted budget the second, all as 75,000 ESA students are now being served at lower taxpayer cost $… pic.twitter.com/D1Kc2m3bQ3
In a subsequent comment, he added, “Arizonans deserve better than willful or sloppy misrepresentations by @propublica, @joedanareports, @laurieroberts & @arizona_sos attacking the ESA program while ignoring record public school costs (including recently uncovered misspending on wine tastings & political candidate bootcamps)[.]”
The depth of Beienburg’s breakdown of the committee’s analysis can be summarized into a few key points.
He writes, “While union-aligned journalists and advocacy organizations have painted Arizona’s ESA program as excessively costly to taxpayers and responsible for triggering a budgetary shortfall, the two years of the universal ESA program’s history—and a new report from Arizona’s nonpartisan state budget analysts—suggest otherwise.”
The committee analysts explained, “With the above forecast adjustments, we estimate the total combined district/charter/ESA enrollment will generate savings of $(352,200) in FY 2024 relative to the enacted budget.”
Beienburg points out that the budget deficit of 23’-24’ only arose after Democrat Governor Katie Hobbs vetoed the original budget passed by Republican majorities in the House and Senate. That budget would have left the state with over a billion dollars in reserve funds even after fully funding the ESA program.
“Hobbs instead signed a budget that increased state spending by an additional $2 billion to the highest level of all time and exhausted the state’s surplus financial cushion, leaving it unable to absorb lower than projected revenue collections.”
Beienburg also mentions that the bevy of claims from critics of the ESA program “have relied on ideologically motivated, often factually dishonest misrepresentations of the program and its finances,” and “are simply false and represent either basic numerical illiteracy or willful misrepresentation of fact.”
Finally, the report from Goldwater assesses the fifth claim that critics of the ESA make which is that the program “siphons too much money to ‘wealthy’ or ‘high-income’ families,” by supporting families who are either pursuing home schooling or private education. And it is in this last segment of the report, the ultimate, purely ideological and class-warfare driven motivation for all of the “misrepresentations of the program and its finances” emerges.
The glaring inconsistency in the view of ESA critics that the “Empowerment Scholarship Accounts” benefit the wealthy is utterly undone by even a cursory examination of the families utilizing the program. As the Goldwater Institute, the nonpartisan Common Sense Institute, and multiple conservative outlets have repeatedly verified, families of ESA children cover the full breadth of the socio-economic strata from crushingly impoverished to blindingly wealthy, from the broken down trailer parks of South Phoenix to the most lavish homes of Paradise Valley.
Beienburg notes, “By simply proclaiming a national ‘consensus’ in support of their own views—and ignoring an entire half of the nation seeking something better—advocacy organizations like Brookings suggest the education status quo should be preserved because…that’s how it’s always been.”
He concludes, “Yet this same status quo failed families during COVID-19, locked children out of classrooms, has doubled inflation-adjusted K-12 costs over recent decades, and has failed to meaningfully improve student outcomes for generations. The proliferation of education savings accounts—like other school choice innovations such as charter schools—on the other hand, offers families and lawmakers the opportunity to expand the range of educational choices available to students and ensure that each child can pursue an education of excellence, not simply political convenience.”
A Phoenix public school district has come under fire after the Goldwater Institute revealed it’s Governing Board and Administrative Team were treated to a three-day $4,000 per person “diversity, equity, and inclusion” (DEI) conference at a Napa Valley wine country resort. The conference was hosted by the California Association of Black School Educators.
According to the report released by the Goldwater Institute, the “4th Annual California Association of Black School Educators (CABSE) Institute,” was held at the posh Meritage Resort and Spa, where off-season rooms run about $400 per night between July 14 – 17. The Creighton Elementary School District Governing Board and Administrative Team reportedly enjoyed the offerings of the conference, which included, “a five-hour ‘Chairman’s Soiree’ at a local winery, where participants were bussed in to enjoy wine and haute cuisine.” According to a post on LinkedIn, registration for education leaders was $850 per person.
Taxpayer-funded wine tastings? School leaders splurge on glitzy DEI conference: https://t.co/M1o1FGTClt
The theme of the conference, “Black to Basics, Root Causes, Interventions” is an overtly race-driven plan to “foster collaborative action among California education professionals committed to advancing equity for Black students.”
The agenda for the convention was conspicuously absent from the CABSE website, however, based upon the 2023 offerings we can glean an understanding of the likely content.
In 2023, the conference offered:
“A Whole Village Approach to Equity,”
“Culturally Responsive Teaching and Learning,” and
“Equity in Mental Health.”
Images posted to X by the ‘UCLA Center for the Transformation of School’ taken at the conference showed presentations from CTS Project Director Dr. Stanley L. Johnson, Jr. entitled “What Are Your Basics For Black Students?” and “The Machinery of Improvement: Practices, Policies, and Advocacy”
Creighton Elementary School District Governing Board documentation located by AZ Free News confirmed that the Governing Board officially approved the trip during its April 16 Regular Board meeting. The document noted:
“Governing Board members and staff from the superintendent’s office are requesting permission to attend the 4th Annual California Association of Black School Educators (CABSE) Institute to be held in Napa, California, July 14-17, 2024, at a cost of approximately $3,800-4,000 per person. The CABSE Institute Is a three-day convening designed to foster collaborative action among education professionals committed to advancing equity for Black students. This conference is a unique gathering of board members, district superintendents, administration officials, teachers, leaders, and decision makers from across the nation. “
At the same meeting, the district’s personnel action report revealed that over fifty educators resigned effective May 24 with the vast majority described as for “personal” reasons.
During the August 6th Governing Board Meeting, Board Member Katie Gipson McLean reported on the conference, saying it was, “a cool, fun conference to go to,” and adding that “they’re encouraging people to be candid and open and honest and have these larger conversations among the group about issues that are impacting specifically black and brown youth.”
Board President Sophia Carrillo summarized the conference stating, “Their theme was ‘Black to Basics’ and it was just awesome to know that we were in a conference where that it was aligned with our goals. Right? One of our goals is our zero percent black students in grade will pass the math standardized test. And to be in a room full of doctors, educator professionals, Superintendents, school board members from California knowing that this is an issue that’s happening statewide. And they also are having these conversations in their local governing board meetings and making sure that our students that are, you know, that are most vulnerable are getting the attention and the resources that they need was just awesome. A lot of good networking from there to hopefully bring into the school district as well.”
The Goldwater Institute wrote “Plenty of unanswered questions about this year’s event remain. In a three-day conference, why was only 9.25 hours committed to substantive conference content (the sessions where one would qualify for continuing education credit), compared to 22.25 hours spent on ‘networking’ events like the winery soiree.
Why are officials from a Phoenix school district attending a California state education DEI conference with a clear California focus? And why is the district—in which 80% of students fail to meet proficiency levels in reading (across all races combined)—narrowly focusing resources toward a single racial demographic to the exclusion of others, while apparently deprioritizing the 80% of students who are Hispanic or Asian, for instance?”
The institute added, “The district should also produce a detailed conference agenda, a list of all persons attending the conference (the entire governing board and the superintendent’s cabinet were approved to attend), and receipts for all relevant travel expenses, in addition to divulging whether any attendees brought guests to enjoy this taxpayer-funded vacation.”
The Arizona Supreme Court ruled on Wednesday that the practice of union release time was unconstitutional.
Release time occurs when government agencies direct their employees to be released from their job duties in order to work for their union advancing private interests such as lobbying and recruitment. While on release time, those government employees would still receive their regular government pay, benefits, and retirement.
Chief Justice Clint Bolick on behalf of the Arizona Supreme Court ruled in Gilmore v. Gallego that release time constituted a violation of Arizona’s Gift Clause prohibiting the granting of public money to private entities, or “gifts,” because it used public funds raised by general taxation in the aid of enterprises engaged in private business.
“[R]elease time should be separately scrutinized to determine if it has a public purpose and provides sufficient tangible, enforceable consideration to the City,” wrote Bolick. “The release time provisions at issue are precisely that: a ‘release’ from the ordinary duties for which [city] employees were hired, to instead perform, in the main, lawful union activities.”
The Gift Clause prohibits the state and its subdivisions from giving or loaning credit, or making any donations or grants, to any individuals, associations, or corporations.
The Goldwater Institute sued the city of Phoenix in October 2019 over the practice of time release, on behalf of two non-union city employees and taxpayers.
In a press release on their court win, the Goldwater Institute’s Timothy Sandefur and Jon Riches said that the end to government-funded union activities through release time would ensure private interests weren’t financed by taxpayers.
“Today’s ruling is a watershed decision that ensures taxpayer dollars will be spent to advance public interests, not private special interests, including the politically powerful special interests of government labor unions,” read the joint statement.
As disclosed in court documents, release time cost the city of Phoenix nearly $500,000 annually.
That six-figure cost became a factor in the court’s decision. Bolick noted that the city had no direct control or supervision over the employees under release time, “an essential criterion” to establish the public purpose standard for Gift Clause adherence.
“[T]he City costs are substantial, but the benefits are so negligible as to render them largely illusory. The Union receives four full-time employees, who are released from their public duties but paid as if they were performing public work, for the Union to direct as it sees fit,” said Bolick. “In return, the MOU provides ‘examples’ of the uses of release time, and the City argues that ‘release time promotes cooperative labor relations and facilitates an open dialogue about employment issues.’ At best, these are anticipated indirect benefits that do not count as enforceable obligations for consideration purposes.”
The city of Phoenix argued that release time yielded benefits to city work by improving union-government relations. The Arizona Supreme Court rejected that argument.
“To the extent that the City values the purposes to which release time might be devoted, it has not explained why it could not assign employees, under its direction and control, to perform precisely those tasks (such as serving on task forces), rather than placing them at the Union’s disposal,” wrote Bolick. “Indeed, the costs and benefits here are so one-sided that it is difficult to envision how such expansive time release provisions could ever survive the consideration prong unless the employees genuinely paid for them through foregone wages or otherwise[.]”
However, the Arizona Supreme Court did reject arguments that the release time provisions violated the state’s constitutional protections for free speech and free association.
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A powerful Arizona organization is attempting to coax the state’s once-invincible champion for school choice into fighting back against one of its most fierce opponents.
Last week, John Thorpe, a Staff Attorney with the Goldwater Institute, sent a letter to Arizona Superintendent of Public Instruction Tom Horne, over his office’s continued capitulation to Attorney General Kris Mayes over the interpretation of certain laws pertaining to the Empowerment Scholarship Account (ESA) program.
The letter from the Goldwater Institute sought “to bring some clarity to the issues of (1) whether the use of ESA funds for ‘supplementary expenses’ requires an explicitly documented ‘nexus’ to a curriculum approved by the Department of Education, and (2) whether ESA funds are subject to the AG’s authority under [state statutes].”
This communication addressed an earlier email from Arizona Department of Education ESA Executive Director, John Ward, to parents within the program, informing them about a letter he had received from Mayes’ Solicitor General. According to Ward, that letter “stated that some ESA program practices are inconsistent with State law and result in payment of ESA funds without authorization of law, [and that] the Solicitor General’s Office has directed the ESA program to address the issues it identified.”
The Attorney General’s Office cited two Arizona statutes to bolster its argument that “the Arizona Department of Education has approved certain supplemental items and textbooks without requiring curricula, which may result in ‘illegal payment of public monies.’” Ward told parents that “ADE has no choice but to comply with the Solicitor General’s determination,” forcing families to “submit a curriculum with all supplemental materials requested or purchased” – something that he even noted was a practice “in place since before the current ADE administration.”
Horne’s acceptance of Mayes’ interpretation of the law was surprising to many members of the public, being that his office has been at odds with the Attorney General’s Office on almost every issue related to this program. Previously, Horne issued several statements expressing his unabashed opposition to the Democrat Attorney General’s persistent attacks on the ESA program and vowing to match her office step for step in defense of parents.
In Thorpe’s letter, he argues that “the law does not condition families’ rights to buy supplemental materials on an explicitly documented ‘curriculum nexus,’” and that “Arizona families’ ESA dollars are not ‘public monies.’”
Thorpe concluded his letter to the state’s schools chief, writing, “The AG’s power to investigate misuse of public monies does not give her the authority to prevent your office from allowing Arizona families to use their ESA funds for statutorily permitted uses. Nor does the law require you, or those families, to justify every textbook or ‘supplementary expenditure’ with a Department-approved curriculum nexus or documentation from a private school.”
On the same day of the Goldwater letter, Ward sent another email to ESA families in response to questions of his department “to provide additional guidance on what is required to use Empowerment Scholarships to purchase supplemental materials” – perhaps signaling that Horne and the Arizona Department of Education would not be backing down from its surrender to Mayes. Ward stated that “ADE would like to provide you with an updated template of Parent-Prepared Curriculum that you can use to submit with your requests for supplemental materials.”
One of the state’s most ardent and effective advocates of the ESA program, Christine Accurso, linked to the Goldwater letter on her social media platform, adding her own commentary about how parents should react to the decision from the Arizona Department of Education on these supplemental materials for their ESA accounts. She said, “ESA parents should have absolutely no fear with submitting orders (for direct purchase or for reimbursement) that includes items that are obvious supplemental educational materials. If an order gets rejected, then email asking them to approve it. If you get an email or communication about your order that says it is the ‘department’s final administrative decision’ then you can go to the State Board of Education and file an appeal. However, you must have proof that the department has given its ‘final administrative decision’ before submitting an appeal to the SBE.”
The Goldwater Institute’s public foray into this controversial action from the Republican Superintendent’s Office follows a letter that was previously sent to Horne from Arizona House Speaker Ben Toma, a fellow Republican. In his letter, Toma wrote, “I understand that you may have no choice but to cooperate with the Attorney General’s politically-motivated investigation. However, ADE is best situated to determine how to implement its policies in a way that fulfills legislative intent but does not burden parents with unnecessary bureaucratic requirements.”
Toma added, “As you implement your Department’s policies, I urge you to scrutinize Attorney General Mayes’ unsolicited legal advice expressed in her July 1, 2024, letter, consider how her interpretation of Arizona statutes would impact parents throughout the state, and reject her interpretation of the law that would lead to absurd results.”
In a blog post for the Goldwater Institute, Matt Beienburg referenced Toma’s letter, stating, “As noted by Arizona Speaker of the House Ben Toma, the unprecedented intrusion and second-guessing by the AG’s office into ADE’s administration of the ESA program is just the office’s latest attempt to advance a novel legal theory in order to hijack the legislative deliberations and decisions of state lawmakers. Indeed, just days before firing off its attack against ADE for its application of state statute, the AG’s office was forced to concede and drop its efforts to override the provisions of the recent bipartisan state budget agreement. The AG’s demands against the ESA program should similarly be rejected by the state department of education, the state board of education, and the judicial system of Arizona.”
A few days removed from the Goldwater Institute letter, the Arizona Department of Education sent another email to ESA parents, informing them of a virtual meeting with Horne, Ward, and others from the department to “provide account holders with an opportunity to have their questions answered regarding the new curricula requirements for supplemental materials.” However, families will not be able to ask their questions live and unfiltered. Instead, as per the electronic notice, “the format for the virtual meeting will be the Department of Education reading and answering questions that have been submitted to it by ESA Holders.”
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
