scholarships offer new
hope for special-needs children
State education officials say
they need the
initial application no later than July 27
Goldwater Institute Watchdog Report
Samantha Boesl has high hopes for her 10-year-old son, Blake.
He’s always been smart, a visual learner with what his mother
describes as a photographic memory.
But he’s also been challenged. Blake is autistic, and is easily
distracted and influenced by the behaviors of those around him. He’s
also had to contend with a host of medical problems, from debilitating
food allergies to a skull fracture received when he fell out of a window
at age five.
Because of his autism, Blake is sometimes unable to communicate his
pain, Boesl says. That hurt and frustration can manifest itself in
inappropriate, even self-destructive, behavior.
When Blake entered kindergarten at the local public school in the
Boesl’s Ahwatukee Foothills neighborhood, he tested as academically
ahead of his peers. By the time he finished fourth grade earlier this
year, he had fallen behind.
Sidebar: ESA Basics—Key points of Empowerment Scholarship Accounts
The public school is not meeting the needs of Blake, a
special-education student who qualifies for a special instructional plan
under federal and state laws, according to his mother. Boesl says she has
used her own money to pay for the additional academic instruction and a
barrage of therapists Blake needs. That added care has cost Boesl and her
husband, Chad, thousands of dollars over the years.
And yet, Blake’s progress is being hindered by the “cookie
cutter” approach the public schools have in dealing with children who
have special needs, she said.
But Boesl sees hope in a new state law that allows parents of
disabled children to withdraw them from public schools and use the money
that would have gone to the local district to design their own educational
That means parents like the Boesls can customize how their children
learn, using the money for a broad range of services that might include a
mix of private school or home school instruction, tutoring, and
specialists to deal with individual emotional, physical or behavioral
“He can contribute to society,” Boesl said of Blake. “But
he’s not going to have the opportunity to do it in public school.
They’re not meeting his needs.”
“He is smart. Give him the right tools. The schools, they are
cookie cutting for every kid and Blake isn’t getting the right custom
fit that he needs at this age bracket. The cookie cutter thing is not
going to work for Blake. You can’t tell me he’s not going to
contribute to society. He will. But if I don’t put the right tools now
in place for him, then he won’t be able to contribute.”
The law, which officially takes effect July 20, is built around Empowerment
Scholarship Accounts (ESAs), controlled by
the parent or guardian with the condition that the funds be used to
provide education that includes instruction in reading, math, social
studies and science.
To qualify, the child must be an Arizona
resident with a disability
under federal or state law, and must have either attended a public school
full time or received a scholarship from a school tuition organization
The parent must agree not to enroll the child in a public school,
including a charter school, and cannot receive other money through a
scholarship from a School Tuition Organization. Any child who meets those
requirements qualifies. There is no cap on the number of eligible
Under the law, which was passed in the 2011 legislative session,
the state will redirect 90 percent of the money that it would have paid to
the local school district into a qualifying child’s ESA. The amount will
vary, depending on the severity of the child’s disability. State
education officials say the money
available to parents through
the accounts will range from about $5,000 for kids with minimal learning
disabilities to as much as $26,600 for those with multiple and severe
A parent with an account will be able to use the money to pay for
private schools, books, therapists or other services needed to create the
most appropriate learning environment. Money left in the account when the
child finishes high school could be used to help pay for college.
Though the law officially goes into effect July 20, the Arizona
Department of Education began pre-accepting applications July 1. Parents
who wish to qualify for the program need
to apply by July 27, and
have all of their paperwork to the department before August 1. The initial
payouts into the education accounts will be available for the upcoming
Public school organizations are threatening
to challenge the program, arguing it violates state constitutional provisions
that prohibit the expenditure of state funds for private or religious
schools. The Arizona School Boards Association in June sent a letter to
Attorney General Tom Horne asking that he block implementation of the law.
The letter cites a 2009
Arizona Supreme Court case that voided two similar laws that allowed parents or guardians of
disabled or foster children to send them to private or parochial schools.
The court ruled that since the parent did not control how the money was
spent, the old laws amounted to a direct payment from the state to private
Clint Bolick, director of the Goldwater Institute’s Scharf-Norton
Center for Constitutional Litigation, said the program remedies
the court’s concerns by
giving parents direct control of the money. If the law is challenged, the
Goldwater Institute will help defend it, Bolick said.
DEALING WITH PAIN
Samantha Boesl has taken an active role in Blake’s education
since he was diagnosed with severe autism when he was about two years old.
They were living in Washington state at the time. Blake was immediately
enrolled in a preschool program for children with disabilities.
Blake was not getting the services he needed, such as speech and
occupational therapy, Boesl said. She volunteered to help in the Blake’s
classroom, but was told she could not do so because she was not a district
employee. So she got a job at the school as an aide to the special
When Blake was three, he was accepted into a university study that
incorporated resources and techniques beyond traditional instruction to
devise a new approach to teaching kids with disabilities. That program was
tailored to the individual needs of each student, and it was through that
study that Boesl became familiar with innovative ways to teach children
Outside of the classroom, Boesl opened a preschool in her home,
employing a speech pathologist and trained university students to provide
services to children with special needs that they were not getting in the
Aside from his academic challenges, Blake struggled with a variety
of physical ailments. He had severe food allergies that led to painful
reactions. But because he was unable to express himself verbally, his pain
manifested itself through his behavior, Boesl said.
“Because they are fighting their biological needs it comes out as
‘I’m hurting but I can’t tell you so I’m going to act out,’”
she said. “They can’t tell you their whole body feels like it’s on
fire because they’re having an allergic reaction to the food they ate.
He has to deal with all that pain.”
When Blake was five years old, he unlatched a second-story window
and fell out, sustaining a skull fracture. Worse, he continued to try to
reenact the behavior, creating a dangerous situation that required him to
be watched constantly.
Within weeks the Boesl’s moved to Arizona, into a single-story
home in the far west end of Ahwatukee Foothills.
Blake started kindergarten at the neighborhood public school, which
did not have a separate resource center for children with his disabilities
until they were in the third grade, Boesl said. District officials wanted
Blake to go to a different school, where the appropriate special education
program was available in kindergarten. But Boesl believed it was important
for Blake’s social development that he attended school with other kids
from the neighborhood.
Blake struggled with a variety of behavioral, physical and social
issues, and required constant supervision. He often mimicked inappropriate
behavior of his classmates, and continued to be a safety concern because
he tried to reenact his fall from the window.
The school did provide an aide, who Boesl describes as “an
amazing woman,” as part of Blake’s state-required instructional plan.
But public-school special education aides are assigned to the classroom,
not to the individual student, she said.
Blake also was not getting the individualized instruction and
therapies he needed through the school, Boesl said. To supplement his
schooling, the Boesls hired an array of occupational, behavioral, physical
and speech therapists to deal with Blake’s varied needs. They also pay
to send Blake to a private after-school math and reading program that is
geared toward individual needs and abilities of students.
All of that is costly, but necessary to get Blake the individual
attention he needs to deal with the range of physical, emotional and
academic issues he faces, Boesl said. Yet despite it all, Blake is
lagging, she said. When he started kindergarten, Blake was testing
academically at about the second grade level. When he finished fourth
grade earlier this year, he had fallen behind grade level.
Boesl does not fault the public school Blake attended, or the
educators who worked with him. Public schools are set up to teach groups
of children, not to give each child the individual attention and broad
range of services that are needed to ensure academic, behavioral and
social development reaches its maximum potential, she said. That is
particularly true for children with multiple disabilities.
“There’s never going to be a perfect fit,” Boesl said. “But
when you know that it’s not, do you have the means, do you have the
opportunity to even change that? Right now, you don’t.”
Boesl hopes an Empowerment Scholarship Account will give her that
The idea behind the scholarship accounts is to give parents more control
in custom crafting their children’s educational plans. The Arizona
program is the first in the nation that gives parents of children with
special needs so much control, said Jonathan Butcher, education director
at the Goldwater Institute, which helped craft the legislation.
Traditional vouchers in other states essentially use public money to pay
the private school tuition for those who qualify, Butcher said. The
Arizona scholarship money is
not restricted to tuition.
That means the parent of a child who needs specialized therapy,
such as behavioral counseling, to maximize academic success can use money
from the education account to pay for it. They also are not confined to a
traditional classroom. Parents can use the money to enroll their children
in online classes or a variety of other innovative programs if those are
more appropriate, Butcher said.
“This comes at just the right time because we are seeing, over
the past several years, virtual education and online programs starting to
really come into their own,” Butcher said. “When you pair what is
becoming a whole universe of options with a parent’s ability to choose
from any of them, I think that makes for a great combination.”
Voucher programs that give parents of children with special needs
more options have proven effective in other states -- particularly Florida,
where one has been in place
for more than a decade, Butcher said. Studies have shown disabled students
in the Florida program have improved their test scores at rates well above
the national average for their peers. In addition, students with mild
disabilities who remain in public schools that are near private schools
with children in the program have also shown
significant gains. That
suggests the competition from the voucher program puts pressure on the
public schools to improve, Butcher said.
Giving parents more options forces public schools to improve or
face an exodus from the system, said Liz Dreckman, president and executive
director of the Arizona
School Choice Trust, a
school tuition organization that is helping parents enroll in the new
“We believe every parent whose child’s needs are not being met
in the system they are assigned to should have the option to put their
child somewhere else, regardless of financial status or resources,”
With the ESA’s, “the parent can spend the money on what the
child’s specific need is versus on the system that is telling them what
their kid needs. Every kid is going to be better off because the schools
are going to become keenly aware that if they don’t do what the children
need, the parents can walk.”
The Goldwater Institute sought comments for this story from several
organizations that have challenged prior parental choice laws passed in
Arizona, including the Arizona School Boards Association, the Arizona
Education Association and the Arizona Association of School Business
Officials. No one from any of those organizations returned phone calls.
Stacey Morley, director of policy development and government
relations at the Arizona Department of Education, said she expects about
250 to 300 children will be enrolled in the program initially, based on
the level of participation in the voucher system that was ruled
unconstitutional in 2009.
Not all parents will benefit from ESAs, Morley said. The amount
each parent receives will vary greatly, depending on the diagnosed
disabilities, their individual instruction plans and even what school
district they attended last year, Morley said.
Many children with the most severe disabilities are already placed
in residential settings such as group homes, and the amount of money
through the scholarship would not go very far in offsetting the care they
currently receive, Morley said. Others with slight learning disabilities
would only receive a minimal amount, not enough to pay for much at a
private school, she said.
Parents who miss the August deadline can apply later in the year
with a December 1 deadline to qualify for an ESA in the following
The scholarship accounts are the result of a series of laws and
lawsuits involving parents of disabled children.
In 2006, the Legislature passed two laws creating a voucher system
for the parents of children with disabilities and the guardians of foster
children. Both gave the parents the option of enrolling the children in
private or parochial schools, with the state paying the bill through a
voucher. Though the voucher was made out to the parent or guardian, they
could do nothing with the check except endorse it to the private school
they had selected.
A coalition of public school organizations, including the school
boards association and teachers’ unions, sued in 2007, claiming the new
laws violated prohibitions in the state constitution against the use of
public money to support either private or religious schools. The Arizona
Supreme Court agreed in the 2009
case Cain v. Horne. The voucher programs as enacted did not give parents any real
control over their money, the court ruled. The only thing they could do
with the check they received from the state was to endorse it to a private
school. That amounted to using taxpayer dollars to directly benefit
private schools, the court held.
But the court included a caveat in its ruling.
“There may well be ways of providing aid to these student
populations without violating the constitution,” the unanimous opinion
from then-Justice Michael Ryan stated.
exchange during oral arguments
between Justice Andrew Hurwitz and Donald Peters, who represented teachers
unions challenging the laws, Hurwitz asked if Peters thought it would be
permissible for the state to give an educational grant to parents and
allow them to “spend it as you wish.”
“Yes,” Peters replied.
“And if they spend it on a private or parochial school, or on a
public school transfer districts, that would be okay?” Hurwitz
“Yes,” Peters said. “I think the dividing line is how much
the state constrains the choice.”
That exchange guided the drafting of the new law, said Clint Bolick
of the Goldwater Institute. Both the court’s decision and the lawyer for
the teacher unions acknowledged giving parents more choice is a
constitutional way of allowing public money to be used for private
schools, Bolick said.
The ESAs do that by giving the parents nearly complete control over
the money rather than requiring it go toward private school tuition, as
the old voucher program did, he said. The accounts can only be used for
education. But within that limit it is the parent who determines how the
money is spent, and it is possible none of it will go to a private school,
Peters did not return phone calls seeking comment. He is the lawyer
the letter in June to the
attorney general’s office asking that it halt implementation of the ESA
law. Cain v. Horne
clear that the state cannot fund private schools, either directly or
indirectly, Peters wrote. The new law does the same thing as the statutes
the court voided in that case, according to Peters.
The requirement that parents give up their right to enroll their
child in a public school in return for receiving payments into their ESAs
also is unconstitutional, Peters wrote. The state cannot force a person to
give up a constitutional right in return for a public benefit, he said.
Tim Hogan, one of the lawyers who challenged the old laws, said
there is little difference between them and the new statute. The exchange
between Hurwitz and Peters carries no legal precedence, so is irrelevant,
“It’s still aid to private schools,” Hogan said. “I know
the proponents of this legislation took an exchange between the lawyer and
Justice Hurwitz and they thought that they found some magic bullet here.
But I don’t see how it changes the underlying structure, which is the
state funds are going to private schools.”
Hogan said he is certain a lawsuit will be filed challenging the
Sending a demand to the attorney general, and giving him 60 days to
act, is a legal tactic to ensure that those bringing a lawsuit will
recover their attorney’s fees and court costs if they are successful,
under state law.
Bolick agreed the exchange between Hurwitz and Peters does not
carry legal precedence, but said it does signal the court’s thinking. As
to giving up the right to a public education, Bolick said a parent with a
scholarship account retains that right and can re-enroll the child in a
public school by opting out of the system.
“On a larger scale this is a fundamentally different way of
looking at the provision of public education,” he said. “It really is
a transformation of the government’s role into a facilitator and funder
of education rather than as a sole provider of education.”
REACHING HIS DREAM
After the Supreme Court’s ruling, the Legislature adopted a
stopgap law that allows parents with disabled children who were receiving
the vouchers to qualify for scholarships funded by corporate donations
through School Tuition Organizations. Though the companies that contribute
receive tax credits, donations raised only about $1.5 million for the
program in the 2010 fiscal year, less than a third of the annual cap
imposed in the law.
For Samantha and Chad Boesl, the legal fights are less important
than finding and paying for the array of instruction and therapies that
Blake needs to succeed.
The therapists and tutoring they have gotten on their own are
paying off. A few years ago, Blake could only talk in one- or two-word
sentences, and his behavior was difficult to control, Boesl said. Today,
he is talkative and outgoing. He is able to focus on his instruction for
longer periods of time, and is remarkably adept at learning new skills.
If she qualifies for the program, Boesl said she plans to use the
money to pay for a private school she’s already picked out, and
supplement that instruction with an after-school academic program and
specialists to work on Blake's physical and social needs.
“I will be giving up this chaotic environment to maybe a more
custom environment for him,” Boesl said. “This scholarship will give
me the money to hand select what I need for him.”
“This is huge. It’s like the stars are lining up for my son;
that he won’t have to live a life in a group home. He will live a life
with us. But he can have his dream. He can do whatever he wants. Just give
him a chance.”