Mayes settles voucher lawsuit that challenged documentation requirements 

Parents who purchase supplementary educational materials through Arizona’s K-12 school voucher program don’t have to prove that those materials were necessary for a specific curriculum being taught to their child, under a new agreement between the attorney general and education department. 

In July 2024 Arizona Attorney General Kris Mayes told the director of the voucher program, formally known as the Empowerment Scholarship Account program, that he must begin requiring proof that those supplemental materials are curriculum-required. Shortly after that, two ESA parents — represented by the conservative Goldwater Institute, filed a lawsuit to block the requirement 

After two years in court, Mayes, the Arizona Department of Education and ESA parent Velia Aguirre on July 1 settled the case, with an agreement to implement related oversight measures in the future.

In a Monday statement about the settlement, the Goldwater Institute wrote that “Mayes has waved the white flag, ending her illegal effort to use bureaucratic red tape to gum up families’ Empowerment Scholarship Account purchases.”

In exchange for the dismissal of the lawsuit, the Arizona Department of Education agreed to require parents to sign an attestation saying that the supplemental educational materials they purchased will be used for their ESA student, and not for any other purpose. The attestation includes a notice that providing false information or falsifying documents can end with suspension or termination of their account. 

ESA parents will also be required to provide the Department of Education with information about the curriculum that the supplemental materials will support. 

“The Attorney General approved this settlement agreement to stop wasting taxpayer dollars on this lawsuit which was coordinated by the Goldwater Institute and the Arizona Department of Education with the goal of getting a court to bless their view that ESA holders should be able to buy anything they want with taxpayer dollars,” Richie Taylor, spokesman for Mayes, said in a statement to the Arizona Mirror.

The ESA program was created in 2012 to provide vouchers for students with disabilities and was later expanded to include students attending poorly performing schools, children in foster care and the kids of military members.

The program served about 12,000 students before then-Gov. Doug Ducey and the Republican-led Arizona Legislature implemented a universal expansion in 2022. The program is now available to all of the state’s roughly one million K-12 students, and has an enrollment of more than 100,000 students at an annual cost of about $1 billion.

The program works by giving the parents of participating students a debit card that can be used to pay for various educational costs, reimbursing the parents for those costs or allowing parents to make purchases through the ClassWallet virtual marketplace. The costs can include private or parochial school tuition, tutoring, homeschooling supplies — and even savings for college tuition.

The universal ESA program has been controversial since it was implemented, with Republican supporters putting their full backing behind it while criticizing calls for more oversight, and Democrats and public education advocates calling for more guardrails for the program. 

In a May report, the Arizona Auditor General found the Department of Education’s oversight of the program lacking. In that report, auditors found that ESA money had been spent on unallowed items that were clearly not educational, like a $1,000 generator, $1,666 planter boxes and $1,400 gym equipment.

The Goldwater Institute celebrated the settlement as a win for ESA parents. 

“This means no more manufactured paperwork from parents and no more wasted hours explaining why hundreds of individual items, like pencils or children’s books, are necessary for a child’s education,” Ryan Mills, spokesman for Goldwater, said in the statement.

The Attorney General’s Office argued in a statement that the Department of Education never really required parents to prove that their supplemental purchases were required by a specific curriculum anyway.

“The Attorney General supports reform and accountability for the ESA program,” Taylor said in the statement. “This settlement agreement is a step in the right direction and puts an end to a coordinated lawsuit over a policy that the evidence showed ADE never truly implemented or enforced.”

Taylor also emphasized that Mayes’ stance on the requirement to provide documentation that materials are curriculum-required has not changed. 

“The Attorney General’s position on supplementary materials has always been consistent: ESA holders who purchase supplementary materials using ESA funds must demonstrate that the materials support a curriculum being studied by the specific student associated with the ESA used to make the purchase,” he wrote. “That isn’t a controversial proposition.”

Under the settlement, the Department of Education must work with ClassWallet to ask ESA parents to supply the name of the curriculum or course of study that supplemental educational materials support whenever they make purchases through the platform. This change is to be implemented as soon as the technology to do it is in place, and no later than the second quarter of 2027. 

In November, voters will likely get to decide whether to place more restrictions on the ESA program or to block those restrictions. A citizens’ initiative aimed at increasing oversight and downsizing the ESA program and a competing measure sent to the ballot by Arizona’s Republican legislative majority that would make the citizens’ initiative moot are both set to be on the November ballot. The legislative referral is already facing a legal challenge, and the citizens’ initiative will likely face one as well.

The Goldwater Institute backs the legislature’s competing ballot referral, and is defending it in court. 

“Goldwater has defeated Mayes’ two-year crusade to use red tape to make it harder for ESA parents to buy basic school supplies like pencils and books for their kids,” Mills said in the statement.