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Fire marshal showdown exposes new threat to school choice

Daryl James

Teachers unions have a long history of attacking choice. They see anyone who breaks free from the public school system as a threat. But Denise Lever faced a new source of opposition when she innovated in eastern Arizona.

Nothing happened at first following the launch of Baker Creek Academy, a tutoring and homeschool enrichment center that Lever set up in Eagar near the New Mexico state line. But after two years without incident, the Arizona Office of the State Fire Marshal decided she was running a “school.”

Michael Greenberg

This designation can be fatal. It triggers a host of code restrictions intended for campuses serving hundreds or thousands of students with ballfields, playgrounds, cafeterias, auditoriums, hallways, offices, classrooms and nursing facilities. On the line are tens of thousands of dollars in mandated building changes — requirements unnecessary for other commercial buildings that serve children.

Baker Creek Academy needs none of this. It is a microschool, an intentionally small learning community, operating in a commercial space that previously served as a church. Many students come just four hours per day, four days per week. The goal is maximum flexibility.

Microschools have existed like this for decades. But the movement took off during the Covid pandemic, when lockdowns spurred dissatisfied parents to get creative. The result was a surge in educational innovation.

An estimated 10% of U.S. schoolchildren now gather in tiny groups, averaging just 16 students each. Old definitions do not always work. Microschools can overlap with public, private or homeschools. But they are something distinct.

Regulators have been slow to figure this out. Florida, Georgia, Tennessee, Texas, Utah and West Virginia have passed post-pandemic laws that ease restrictions on microschools. But most states lump them in with traditional schools in their education codes.

The threshold in Wisconsin is any “instructional program provided to more than one family unit.” The threshold in North Carolina is more than two families. Fire, zoning and building codes are separate and do not always align. The Arizona Department of Education, for example, defines a private school as “a nonpublic institution, other than the child’s home, where academic instruction is provided for at least the same number of days and hours each year as a public school.”

Under this standard, Baker Creek Academy is in the clear. Yet the fire marshal defines a school as any facility used “by six or more persons at any one time for educational purposes through the 12th grade.” Not even this standard is applied evenly. Only academic education counts. Facilities teaching the same kids different things like dance or karate are exempt from these burdens.

This was the fire marshal’s mindset when he came looking for code violations at Baker Creek Academy on April 1, 2025. Lever was stunned but did not wait for a cease-and-desist order. She fought back with free legal services from our public interest law firm, the Institute for Justice, and scored a victory the following month without litigation.

The resolution means Baker Creek Academy can stay open. So can three other microschools that share space with Lever. A similar victory occurred when we challenged a fire marshal in Cobb County, Georgia.

Elsewhere, code enforcers have gotten their way. State regulators fined parents $55,500 and shut down Kulike Learning Garden, a farm-based microschool in Hawaii. And an interpretation of a fire code in Florida forced Alison Rini to install a $100,000 sprinkler system — a mandate that would have killed her microschool if not for a timely donation.

Teachers unions and their allies use different weapons. The Arizona Education Association, the state’s largest teachers union, is working to roll back Arizona’s Empowerment Scholarships, which give parents educational savings accounts (ESAs) to spend on a broad range of needs, including microschool tuition. Save Our Schools Arizona also opposes ESAs, while blasting microschools directly.

People like Lever face threats from multiple directions. Our firm stands ready to help them with free legal services, but state lawmakers can make our work unnecessary by passing meaningful reforms.

This is the right thing to do. Educators should not need attorneys just to teach.

Michael Greenberg is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Virginia.

Republicans want school vouchers in the Constitution, but Hobbs doesn’t want to foot the bill.

Key Points:
  • Republicans propose a guarantee for school vouchers in return for teacher pay
  • If passed, the voucher program would be enshrined in the state Constitution
  • Hobbs calls proposal a non-starter citing cost, partisan games

The head of the House Education Committee said on April 30 that any plan to ask voters to increase the pay of public school teachers must also include inserting a right to vouchers for private and parochial schools into the Arizona Constitution – a proposal that could blow up the whole plan.

Rep. Matt Gress, R-Phoenix, said he believes that House and Senate Republicans are supportive of finding the dollars to raise teacher pay. That proposal would provide a $4,000 across-the-board increase, a move that would put average salaries here above the national average.

But Gress told Capitol Media Services his GOP colleagues want something else: protections for school choice.

Both state and federal courts have affirmed the legality of vouchers, rejecting various challenges that it amounts to the improper use of state funds for private and religious education.

Those rulings have concluded that the vouchers of state dollars are given to the parents rather than the schools, and it is the fact that the parents decide how to use those funds that makes it legal.

Gress said what’s missing, however, is a guarantee that the program will continue – and without interference. And he said that’s definitely needed.

“You’ve seen repeated assaults, particularly by Gov. Hobbs, in trying to eradicate one of the school choice options that we have,” he said, notably what’s formally known as Empowerment Scholarship Accounts.

“She is not going to give up until she has ripped out school choice by root and branch,” Gress said. “And I think that worries a lot of Arizona families.”

Hobbs, for her part, says what Gress and the GOP are proposing is “a complete and total nonstarter.”

“Business and education leaders are opposed to that shamelessly partisan plan,” she said in a statement to Capitol Media Services. “The reckless partisan games from politicians in the Legislature need to come to an end before they endanger pay raises for teachers in order to gut public education.”

Senate Minority Leader Priya Sundareshan, D-Tucson, said the disclosure of the new GOP demand comes even as Democrats have been trying to work with Republicans to craft a deal to extend Proposition 123.

Approved by voters in 2015, it has provided close to $3.5 billion since then in additional dollars for K-12 education by making additional withdrawals from the state land trust.

That funding, however, runs out this year.

Both Republicans and Hobbs have proposed asking voters to extend that extra funding, though there are differences.

Republicans want all the dollars for teacher pay. Hobbs has her own plan – one that would take even more money out of the trust – to finance not just teacher salaries, but also support staff, general school funding as well as cash for school capital and safety improvements.

Those talks, Sundareshan said, have broken down.

“That would explain why they have walked away from the table for so long,” Sundareshan said on April 30 after being told of the GOP interest in adding voucher protection to the mix.

“We have been waiting for over a month with the Republicans to come back with a proposal,” Sundareshan said.

And what if Republicans insist that higher pay for public school teachers has to be linked to constitutional protections for vouchers?

“I hesitate to say ‘non-starter,”’ Sundareshan said. “But, yes, as we know, vouchers are not a good policy in our view.”

In the end, however, it may not matter what Democrats or the governor think.

Any extension of Proposition 123 would be crafted as a constitutional amendment. And that means if Republicans who control the House and Senate can line up the votes among their own members, it would go directly to the ballot, bypassing the governor.

The fight is the latest decade-long battle over school vouchers.

Vouchers were once limited to students with certain disabilities who could not get their needs met in public schools. Over the years, however, GOP lawmakers gradually expanded eligibility to include foster children, those on reservations and students attending schools rated D or F.

In 2022, however, all the limits came off as then-Gov. Doug Ducey, Hobbs’ predecessor, signed legislation for “universal vouchers.” These are essentially checks of state dollars starting at about $7,500 – with higher amounts for students with special needs – that are available to all, whether to pay for private schools or for materials used by parents who home school their children.

The result is that a program that had fewer than 1,000 students in 2014 and only about 11,000 in 2022 has now grown to more than 87,000, with an additional 1,721 already signed up for next school year.

And the cost has ballooned to more than $770 million a year, at least in part because the vouchers are now being used by parents who, until now, were sending their children to private schools on their own dime.

Hobbs had no luck convincing the Republican-controlled Legislature to kill the universal expansion in 2023. So now she has proposed what she calls a compromise: Keep universal vouchers, but tie state aid to the ability of the parents to pay.

Under her plan, families making up to $100,000 a year would still be eligible for a full voucher. But there would be a declining amount above that, with the ability to get a voucher disappearing at $200,000.

Hobbs is calling this a “reform” of the program, saying without the change the number of students who will enroll will top 94,000 with a price tag of $964 million. Gress said that’s not going to get any traction.

“She may portray her policies as not getting rid of them,” he said. “But the effective operational practice of her policy would be gutting the ESA program.”

While Republicans may have the ability to advance their plan linking teacher pay with protecting vouchers, there is a potential danger of voter rejection.

A decade ago, the original Prop. 123 barely skated by with a 51-49 margin. And that was despite bipartisan support and the backing of both business interests and the education community.

Geneva Fuentes, communications director for the Arizona Education Association, said her members were already unhappy with the initial Republican plan to restrict the Prop. 123 extension on how schools could use the state dollars. She said that leaves out things like facilities maintenance “to make sure that if the AC breaks in a school that kids can continue to learn safely there.”

But even if those issues can be resolved, Fuentes said AEA is unlikely to support anything that enshrines the right of parents to vouchers in the Arizona Constitution.

“There have been significant issues with waste, fraud and abuse with the current voucher program,” she said, particularly high-dollar purchases made by parents of home-schooled children. “Constitutional protections for the voucher program would make it very difficult for lawmakers to implement future reforms to the program,” Fuentes said.

Gress, for his part, said he does not see adding a constitutional right to vouchers to a Prop. 123 extension as a poison pill.

Part of what he is counting on is support from the parents now taking advantage of vouchers.

“We’ve seen the Empowerment Scholarship Account program grow tremendously from 13,000 or 14,000 to nearly 90,000,” he said, with close to half of that growth being students who had been enrolled in public schools but are using the vouchers to go to a private or parochial school.

“They’re overwhelmingly popular,” Gress said.

“This has changed the game for a lot of these families who just didn’t feel like the existing education options were satisfying the needs of their children,” he continued. “So I think you’re going to see a lot of support for not only raising teacher pay but preserving education freedom in the state.”

Putting a right of parents to get vouchers in the Arizona Constitution would also override any effort by Hobbs to link the program to the ability of parents to pay. Gress said that’s fine with him, saying it goes to the principle of a universal education.

“We don’t charge tuition to wealthy families who attend a district or a charter school,” he said. “I believe that if you are of student age in the state of Arizona, you deserve to have state investment in your education.”

Former Department of Education employee found not guilty in $614K voucher scam

A former Department of Education employee who was indicted for allegedly approving improper purchases for ineligible or nonexistent children in the Empowerment Scholarship Account program was found not guilty on all charges following a two week jury trial.

Former ESA employee Dorrian Jones was indicted alongside former coworkers Jennifer Lopez and Delores Lashay Sweet, and Sweet’s two adult children, as part of a scheme in which the trio allegedly created ESA accounts for real and fictitious children using falsified documents, then approved fraudulent expenses, accumulating more than $600,000 from the program in the process.

Jones, facing felony counts of conspiracy, fraudulent schemes and artifices, illegally conducting an enterprise and ten counts of forgery, was the sole defendant to go to trial after Lopez entered a testimonial agreement with the state, and Sweet and her children agreed to plea deals.

After a two-week jury trial marked by warring testimony between Jones and Lopez and a lack of input from any ESA employee or top brass, Jones was found not guilty on all charges.

“Honestly, I truly believe my client,” Jones’ attorney Adam Feldman said. “ Not just that he was not guilty, but that he was innocent.”

The state grand jury indicted Jones, Lopez and Sweet in February 2024.

In the indictment, the state alleged the defendants used forged documents, including falsified birth certificates and special education evaluations, to apply and enroll real, but ineligible, and “ghost” children in the ESA program and approve reimbursement and expense requests.

All in all, the defendants allegedly took $614,352 from the program between October 2021 and November 2023.

Both Lopez and Jones took the stand over the course of the two week trial. Witnesses from the state were otherwise limited. In a string of motions, Feldman asked for ESA employees to be precluded from testifying given delayed disclosure by the state.

Feldman said he filed the motion to preclude ESA employees after the state said they did not intend to call ESA employees and potential witnesses, like director John Ward, were “hiding behind their attorneys.”

“Strangely, the prosecution designed this case for failure. For the first seven, nine months they were trying to do this case without calling a single ESA employee as a witness, which is ridiculous when you think about it, because the case is entirely about ESA,” Feldman said.

He continued, “I wanted to speak with the ESA people. It’s not like I wanted them out of the trial. I wanted to know the information. I wanted to know all aspects of ESA to confirm or refute anything my client was telling me.”

Feldman told jurors the case “entirely boiled down to a he said, she said” in opening statements.

He sought to undermine Lopez’s credibility from the start, noting that she had created and approved false accounts to collect around $200,000 from the program, while painting Jones as an upright employee trying to keep up with a high caliber of reimbursement requests and expenses.

Carolina Lopez, an attorney for the state, told jurors that Jones was the “money gatekeeper,” and said he had been “exploiting his position to satisfy his own greed at the expense of Arizona students.”

Over the course of the trial, jurors heard from Lopez and Jones, as well as special agent Annalisa Madsen and ClassWallet CEO Neil Steinhardt.

In the lead-up to the verdict, the state moved to dismiss three counts, citing a low likelihood of conviction. Following deliberation, the jury found Jones not guilty on all counts on Feb 27.

A spokesperson for the attorney general declined to comment on the disposition of the case.

Sweet’s adult children, Jadakah Celeste Johnson and Raymond Lamont Johnson Jr., were the first to take plea deals and see sentencing. The two pleaded guilty to a single count of facilitation to commit money laundering, and were ordered to serve three years supervised probation and pay $196,526 in restitution.

Lopez and Sweet are still awaiting sentencing.

As part of Sweet’s plea deal, she pleaded guilty to one count of fraudulent schemes and one count of forgery. She agreed to serve 2.5 years in prison for forgery, be placed on probation following her release and pay $614,352 in restitution with her co-defendants.

Lopez pleaded guilty to a single felony count of forgery and would be eligible for up to four years supervised probation.

She could face a maximum fine of $150,000 plus a 79% surcharge, with a requirement to be paid to the state’s anti-racketeering revolving fund. Lopez would also owe restitution, with a minimum of $202,382 to the Dept. of Education.

Lopez is set to be sentenced on March 31, and Sweet on April 14

Don’t let Governor Hobbs take away school choice!

With less than one in three fourth-grade Arizona students reading at grade level, now is not the time for Governor Katie Hobbs to play politics with children’s futures. Arizona now has a massive education funding surplus; the governor should invest it in school choice policies that put the best interests of students first.

As a former public school teacher in Arizona, I am deeply invested in the educational opportunities available to students in my home state. Minority and lower class students are falling behind. In 2022, Black and Hispanic fourth-grade students had an average reading score that was 23-24 points lower than their white peers, and low-income students lagged by 25 points compared to those from middle and high-income families. This is why families need options and funds to send their children to better schools.  

Laurie Todd-Smith

Every child deserves the opportunity to receive the best education tailored to their unique needs. It is alarming that one of Hobbs’ first actions in office was revoking scholarship opportunities from nearly 50,000 students using the Empowerment Scholarship Account (ESA), thereby limiting family choices in education. While Hobbs seems unconcerned about the reading proficiency of our children, Arizonians are deeply troubled by it.

Contrary to Governor Hobbs’ claims that the cost is too high, the truth of the matter is that school choice actually saves taxpayers money. If students choose to use an ESA and leave their public school district, a significant portion ($3,300–$7,500) of their education dollars remain in that district. This means the school district receives thousands of dollars for students it does not have to educate, which will help increase per-pupil spending. This is a fact that Hobbs has not acknowledged, much like she has failed to utilize the state’s recently announced $4 million surplus in education funding for school choice initiatives.  

Prior to this surplus, publications with a left-leaning bias in Arizona claimed that the school choice program was wrecking the budget, citing the original $65 million price tag. However, the fiscal note clearly stated that the estimate was highly speculative and indicated a steady increase in cost each year. School choice costs more than the speculative estimate simply because it has succeeded more than anticipated and has become a popular option for families. 

These publications have also blamed the cost of school choice for a multitude of budget cuts. However, this assertion lacks a solid foundation, especially given that the cost of ESAs ($332 million) only accounts for a quarter of the deficit ($1.4 billion). It is misleading for these publications to frame it this way, especially when the cuts they specify add up to much more than the cost of ESAs. For instance, Arizona water infrastructure projects cost the same as ESAs, yet they also blame school choice for cuts to Arizona highway expansions and community colleges. Hobbs’s math does not add up, and Arizona parents know it.

Growing up in a family of five children in Arizona, we were required to attend the neighborhood public schools despite our differing needs and struggles. My family could have benefited from school choice if it was available at the time. The issues I saw as a student became more magnified when I became a public school teacher. I observed that students learn differently and that parents need more options to meet the needs of their children better.

After years of teaching in Arizona and elsewhere, I decided to dedicate my time to fighting for children and families to have educational opportunities. Now, 12 states have passed universal school choice and have seen exceptional results. Other states are working on passing expanded school choice. I am frustrated that politicians like Hobbs are threatening to take it away with false information. Despite incredibly high rates of parent satisfaction and improved student outcomes, she is choosing to play partisan politics at the expense of our children’s future.

Hobbs should not take away universal school choice from Arizona families and students who need it. Instead, Arizona should rein in spending in other areas and stop making education the scapegoat for leadership failures. School choice works, and that’s why Arizona families are using it. All Arizona parents have a right to options — they should stand up and demand that Hobbs retract her proposals against school choice and deliver the real facts!

Laurie Todd-Smith is director of the Center for Education Opportunity and director of the Center for the American Child with America First Policy Institute.

Latino families absent from Arizona ESA coverage

As school choice policies expand, I noticed a rise in criticism for these programs without an accurate consideration of the families they serve. For example, this article from CNN in June, “Arizona is sending taxpayer money to religious schools — and billionaires see it as a model for the US,” focused on Arizona’s Empowerment Scholarship Account program, but misses so much about the program. Most glaringly, this piece of over 3,300 words neglected to include any Latino voices, despite Latinos comprising one-third of Arizona’s population and 45% of its K-12 student population – and is projected to exceed 50% by 2026. This oversight highlights a broader problem with school choice critics: their arguments often come from ideological biases rather than practical concerns for the students and worse yet, disadvantaged children.

School choice, Spivey, Latino, Conoce tus Opciones Escolares, dropout rates
Krissia Campos Spivey is the director of Conoce tus Opciones Escolares.

As a proponent of school choice in all its forms — including traditional public schools, public charters, public magnet schools, online schools, homeschooling, and the new microschooling — I believe that it should be up to parents to make decisions about their children’s education. As a mother whose children attend a traditional public school, I am not opposed to public education. On the contrary, my family has loved our traditional public schools for over eight years, and I believe a child can find the ideal educational fit in any type of school. Because of that, I take issue with critics of ESA programs that fail to include the perspectives of people like me, a Hispanic parent. 

Critics’ Ideological Bias

Critics of school choice often base their opposition on ideological grounds rather than addressing the practical benefits of such programs. Many of these critics are comfortable and well-established individuals who lack firsthand experience with the struggles faced by disadvantaged families. This mirrors what I see on a national level with school choice critics — they get so wrapped up in ideologies that it is easy for them to lose the perspective of the families and the students benefiting from the programs. According to a survey by the National School Choice Awareness Foundation, 76% of Black parents and 66% of Hispanic parents considered a new school for their children in 2023. Additionally, 63% of Black parents and 53% of Hispanic parents are considering exercising school choice in 2024. These statistics show the significant demand for school choice among minority communities

Benefits of School Choice

Numerous data points support the benefits of ESA and Arizona’s ESA programs. In fact, 70% of private schools in Arizona serve students with special needs, providing tailored educational environments. Arizona’s ESA program is projected to cost the state $332 million in the current fiscal year, potentially increasing to $429 million next year, but it represents only 2% of total K-12 spending in Arizona. Furthermore, cross-district open enrollment policies (traditional public school transfers) and universal private school scholarships enable 32% of publicly funded students in Arizona to attend the school of their choice.

The True Human Impact

Beyond the numbers, school choice significantly impacts families on a personal level, and Hispanic voices are not even invited to the debate. As a Hispanic mother running a program supporting Hispanic families exploring educational options, my team has had one-on-one conversations with over 700 Hispanic parents in the last 12 months. Like many others, these parents care deeply about their children’s education and often seek better opportunities. I don’t believe it is a coincidence that the largest minority group represented in K-12 education supports school choice policies that provide access to greater educational options.  Latino students disproportionately face greater achievement gaps and challenges compared to their peers as they navigate their educational experience. We have encountered parents of special needs children, parents of English learners mistakenly placed in special education, and parents eager to utilize open enrollment policies to transfer to another traditional public school of their choice. Additionally, many parents seek charter schools with Spanish immersion programs to maintain our linguistic heritage. These diverse needs highlight the importance of providing various educational options to meet each student’s unique requirements. Truthfully, I have never had a conversation with a Hispanic parent against school choice policies.

Education is the most crucial tool for the growth of this country and our democracy. With 28% of K-12 students being Latino, it is essential for critics and lawmakers from all spectrums to consider this group of the population — not only because it is the right thing to do, but also because it is the smart thing to do. School choice offers numerous benefits, especially for disadvantaged families seeking better educational opportunities for their children. To truly support our nation’s growth, we must move beyond ideological biases and focus on the practical, human impact of these programs.

Krissia Campos Spivey is the director of Conoce tus Opciones Escolares, a national school choice awareness foundation.

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