A locker door is visible in the foreground as a student walks in the distance at Marana High School in September 2019.
The Attorney General’s office is investigating the Arizona Department of Education’s Empowerment Scholarship Account Program for alleged misuse of public monies. Shortly after the program’s expansion, ADE fell under scrutiny for allegations that it approved expenses that are not authorized by law.
Under current law, a parent is allowed to spend universal school voucher funding on “curricula and supplementary materials.” While curricula is defined in state statute, supplemental materials is not. To bridge that gap, the State Board of Education adopted a ruled that defined it to “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.”
Assistant Attorney General Kathryn Boughton argues that a section within the 2023-2024 Parent Handbook allows a parent to purchase “supplemental materials” without providing proof that it is related to the educational curriculum of a student. Boughton says the department, by law, must approve curricula, meaning it would need to review documentation to approve it.
According to A.R.S. § 15-2401(2), curriculum is defined by “a course of study for content areas or grade levels . . . . approved by the department.”
“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,” Boughton wrote in her July 1 letter to the department.
Boughton also argues that “the absence of requirement for documentation of a curriculum nexus may enable account holders or vendors to engage in fraudulent behavior, such as purchasing items with ESA funds solely for the purpose of resale.”
In a letter to the Attorney General’s office, the Director of the Program John Ward said the approval practice of this type of spending existed before ADE’s current administration. Moving forward, he clarified that “supplemental materials without curricula and textbooks without supporting documentation will no longer be allowed.”
“The ESA program will communicate to ESA Holders that this practice will no longer continue and will provide guidance for compliance,” Ward said in a letter. “ADE will also work with the SBE to ensure that this practice is removed from the 2023-2024 ESA Parent Handbook. Additionally, ADE will ensure that all parts of the Handbook will be revised as necessary to reflect this directive.”
However, Republican House Speaker Ben Toma, who sponsored the expansion in 2022, is calling on the department to “scrutinize Attorney General Mayes’ unsolicited legal advice…and reject her interpretations of the law that would lead to absurd results.”
“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 wrote.
Others, like Save Our Schools Arizona Executive Director Beth Lewis–an opponent of the universal voucher program, are celebrating the investigation.
“I think that is a huge win right there,” Lewis said. “The ADE under Superintendent Horne has been…obscuring data, they've been incredibly difficult to work with. They haven't been interested in following the letter of the law or providing more transparency.”
However, Lewis is still apprehensive as to what curricula will be approved.
“The loopholes in state law around the voucher program are so wide that you could drive a truck through them and I don't think that (Superintendent) Horne is just going to all of a sudden become this champion of transparency or accountability,” Lewis said.
In compliance with the investigation, the department will provide data as to what items were approved as a supplementary material without documentation of a curriculum nexus in the 2022-2023 and 2023-2024 school years. As well, it will provide the amount of ESA funds expended on supplementary materials that did and did not have curriculum nexus documentation from 2019 to 2024.
The department has requested 60 days to compile the data requested.
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