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Conservative groups plan to sue ADE over voucher funds

State Superintendent of Public Instruction Kathy Hoffman speaks at her inauguration on January 7, 2019. Hoffman is one of the first Democrats elected to statewide office in more than 10 years and Republicans have been demonizing her politically. PHOTO BY GAGE SKIDMORE/ARIZONA CAPITOL TIMES

State Superintendent of Public Instruction Kathy Hoffman speaks at her inauguration on January 7, 2019. Hoffman is one of the first Democrats elected to statewide office in more than 10 years and Republicans have been demonizing her politically. PHOTO BY GAGE SKIDMORE

Two legal organizations intend to sue the Arizona Department of Education over the state’s school voucher program on behalf of a military parent who claims her family isn’t receiving funds in a timely manner.

The Goldwater Institute and the Liberty Justice Center sent the Arizona Department of Education a notice of claim — a required advisory before suing a government entity — November 12, alleging the department has forced families who should have received state funding to pay out-of-pocket for education expenses.

“There are more than 120 families that have not received these funds in violation of their ESA contracts,” the claim alleges. 

It’s the latest in a series of attacks from conservative organizations on the department’s handling of the legislatively mandated Empowerment Scholarship Accounts program, which is designed to allow parents or guardians to use taxpayer money that would have gone to a student’s public school on private school tuition, tutoring and home-school curriculum.

The ESA program began specifically for special needs students, and has since grown to allow an array of students – including those who attended failing schools and children whose parents are in the military. About 6,500 students currently use the program and receive an average of about $5,000 to $6,000 annually. 

The parent at the center of the planned lawsuit, referred to as K.K. in the notice of claim, is a military member. According to the notice, she was supposed to receive funding for the second quarter of the 2019-20 school year by October 30, but still did not have the money by November 12, the day the claim was filed.

Department spokesman Richie Taylor said the family in question received its second quarter disbursement of $1,939.20 on November 5, several days after the department was supposed to distribute funds but a full week before the notice of claim. ADE provided Arizona Capitol Times with mostly redacted documentation showing the family received its second quarter funding just after midnight on November 5, and then made a transaction several hours later – as well as another purchase on November 6.

The delay resulted from the parent submitting an expense report with an error, which meant it needed to be resubmitted, Taylor said. 

“Had the Goldwater Institute or Liberty Justice Center called instead of sending out a press release and filing a notice of claim, they would have known,” he said. 

Daniel Suhr, senior associate attorney at Liberty Justice Center, said the center expects the department to make deposits as it clears the backlog of receipts, but the systemic problem exists.

“At least 120 families have reached out to say the department failed to provide the funds critical to their children’s educational services,” Suhr said.

The bottom line is the department violated the law and its contract, he said.

These families facing the worry and financial burden of the department’s delay should not be required to enlist attorneys to call the department and negotiate for money they are entitled to,” Suhr said.

This is not the first time Kathy Hoffman, the Arizona Superintendent of Public Instruction, and her department have been criticized for not meeting specific deadlines. The Arizona chapter of the American Federation for Children, a national school choice organization, began filming and releasing monthly videos featuring families that have had problems with the ESA program in May. 

Hoffman and department staff have said the program cannot operate to its full extent without access to the full funds allowed. State law allows for up to 4% of the $91 million allocated for the ESA program to be used for administration, but lawmakers only authorized a portion of that. 

Both Hoffman and her Republican predecessor, Diane Douglas, pushed for more funds to administer the voucher program. The department now receives about $1.25 million for ESA administration, and spends about half of that on employee pay and benefits. 

The department requested $1.35 million this fall to add 20 employees to its ESA oversight unit, which now has 13 positions who handle voucher applications, answer parent questions and review expenses.

Before considering the request, lawmakers ordered the state auditor to investigate how the department spends the $1.25 million it currently receives. That audit is expected to be completed by April 10. 

The Goldwater Institute could be reached for comment.

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