AZ AG Backpedals From Bungled Attack On ESA Families, But Leaves Parents Holding The Bill

Sometimes bullies talk a tough game until someone stands up to them. In this case, it was the office of Arizona Attorney General Kris Mayes, whose legal threats this summer brought the purchase of kids’ books and school supplies to a screeching halt for thousands of families on the Empowerment Scholarship Account (ESA) program.

Books and supplies, that is, like “Brown Bear, Brown Bear, What Do You See?”, “Where the Red Fern Grows,” and educational diagrams of the periodic table of elements, the U.S. Constitution, and the constellations—purchased by ESA moms only to be rejected as disallowed purchases under AG Mayes’ new administrative decree.

As a result of AG Mayes’ handiwork, the purchase of books, workbooks, flashcards and other “supplementary materials” previously deemed so self-evidently educational by the State Board of Education as to be approved by default were all suddenly blocked unless parents could demonstrate that the materials were specifically called for in a particular pre-established “curriculum” document.

But within 24 hours of the Goldwater Institute filing a lawsuit on behalf of two moms challenging AG Mayes’ illegal decree, in an apparent backtrack, the Attorney General’s office immediately began trying to rewrite history.

In a statement first provided to media in response to the lawsuit, the Attorney General’s spokesman declared, “The Attorney General has simply stated what is required by law,” adding, “The law doesn’t prevent parents from purchasing paper and pencils, but it does require that materials purchased with ESA funds be used for a child’s education.” (emphasis added).

That might sound like a reasonable enough proposition. But there’s just one problem: it’s not the position the Attorney General had staked out in her demand letter to ESA program administrators in July that her office used to grind families’ book purchases to a halt.  Rather, it’s almost a carbon copy of the rules previously put forward by the State Board of Education that AG Mayes’ office had chosen to openly defy in that office’s demand letter.

Indeed, in her legal volley this summer, the Attorney General had demanded that the Department of Education “promptly cease approving supplementary material expenses without the requisite documentation of a curriculum nexus,” no matter how self-evidently educational the materials are.

Yet when called out on the fact that no such “curriculum nexus” mandate exists for these items in the law—and that state lawmakers had expressly added language allowing the purchase of supplementary materials outside of pre-established curricula—the Attorney General’s office pivoted to imply their position is merely that ESA materials should be purchased for an educational purpose.

In other words, the Attorney General’s seemingly newfound reasonableness in public messaging is the very opposite of the absurd demands her office made this summer. In fact, it looks a lot more like the arguments of parents and the Goldwater Institute.

To make this even clearer, consider that in her summer letter, AG Mayes’ office declared that even “approval of textbooks without documentation [that] the item is required” by a specific curriculum or reading list is illegal and “constitutes payment of funds without authorization of law” (emphasis added).

Demanding pointless paperwork for textbooks demonstrates that AG Mayes’ decree had nothing to do with seeking to ensure these resources are educational—and everything to do with contriving obstacles to parents.

Pretending otherwise now is either a smokescreen meant to cloud the absurdity of the Attorney General’s actual position, or else a subtle retreat from her prior one.

And speaking of smokescreens, the remainder of AG Mayes’ public statement likewise declared:

“With instances of voucher dollars being spent on things like ski passes, luxury car driving lessons, and grand pianos, it’s clear that providing documentation on spending is essential to prevent the misuse of taxpayer funds.”

This might also sound fairly reasonable at first glance—except that the State Board of Education already required additional curricular documentation for materials “that are not generally known to be educational items.”

This issue arose because AG Mayes threatened ESA administrators with legal liability unless they imposed the same demands on the list of obviously educational materials approved in the State Board of Education’s ESA Handbook: things like “books,” “workbooks,” “writing utensils,” “atlases/maps/globes,” “calculators,” “flash cards”, etc.

These materials are what Attorney General Mayes’ intervention is now blocking en masse—unless parents can cite a specific pre-established curriculum calling for the individual book title or resource.

In other words, the Attorney General’s office still demands that flashcards and other self-evidently educational materials be allowed only if a parent can produce an arbitrary piece of paper calling for their specific use.

The Attorney General’s attempted public deflection away from this fact demonstrates the absurdity of her summer demands.  Perhaps she really does believe that families should have to justify their purchases of books like “Brown Bear Brown Bear, What do You See?” and “Little People Who Became Great” to wiser government bureaucrats. But for the rest of us, such restrictions are clearly nonsensical and—under state law, illegal.

The Attorney General is supposed to uphold state law, not torture it to impose her policy preferences. We encourage the Attorney General to withdraw her summer demand letter, or else acknowledge flatly that her position is that families should have to justify why they picked “Brown Bear Brown Bear, What Do You See?” to read to their own children.

Matt Beienburg is the Director of Education Policy at the Goldwater Institute. He also serves as Director of the Institute’s Van Sittert Center for Constitutional Advocacy.