Complaint: Byrd v. Arizona Department of Education
This case challenges the unlawful adoption of policies and procedures by which the Arizona Department of Education governs the Empowerment Scholarship Account program.
The policies and procedures and rules promulgated by the ESA program have been adopted by the ADE without following the statutorily required notice and comment procedures. This robs those who are subjected to the rules and comments of their right to a voice in how they are governed in contravention of the Arizona Constitution. It also denies the court of a proper record that would allow for a substantive review of the rule maker's decisions to ensure that the rules are not arbitrary, capricious, or an abuse of discretion.
The ESA program was established to enable parents of special-needs children to exercise greater freedom of choice in obtaining educational services for their children. Through that program, participating families are empowered to send their children to private schools, to obtain special tutoring services, or to home-school their children, with the funds that would otherwise have been spent on their children in a government-funded school.
However, ADE has adopted a series of rules, found primarily (but not exclusively) in its ESA Handbook, by which it governs the ESA program. These rules restrict the rights of parents and impose a series of limitations on participating parents that deprives them of choices, financially hinders both the parents and children, undermines the program, and violates Arizona law.