Ducey may seek ESA changes due to recent controversies

By: - August 20, 2019 4:13 pm

Doug Ducey at FreePac, hosted by FreedomWorks, in 2012. Photo by Gage Skidmore | Flickr/CC BY-SA 2.0

In the midst of several recent controversies and a PR campaign against the new Democratic superintendent of public instruction by a prominent school choice advocacy group, Gov. Doug Ducey is signalling that he’ll push for changes next year to Arizona’s K-12 school voucher program.

During the 2019 legislative session, Ducey made clear that he wants to make permanent a temporary fix he signed that allowed a group of students from the Navajo Nation to use the Empowerment Scholarship Program to attend a private school just over the state line in New Mexico. While speaking to reporters on Aug. 13, the governor hinted that more changes may be coming.

“The first thing I want to see, the young people, and these are people that are in a certain circumstance – autistic, living in a tribal nation, a military child – that their ESAs are protected, and their parents who have been using these ESAs have access to those ESAs,” Ducey said.

The governor’s comments come as Superintendent of Public Instruction Kathy Hoffman, a Democrat who took office in January, finds herself under fire from some Republican lawmakers and the American Federation for Children, a national school choice advocacy organization that recently expanded its presence in Arizona.

Based on recent news stories, it’s clear that improvements are needed in the implementation of the ESA program, and possibly in the laws that govern them, said Ducey spokesman Patrick Ptak. Asked which incidents he was referring to, Ptak said the administration means all of them.

“Our focus is ensuring families and kids have access to the education they deserve. We’re going to continue engaging with constituents, the department of education and legislators to identify opportunities for improvement to the current program,” Ptak told the Arizona Mirror.

“All the stories” covers a lot of ground these days, most of them publicized by the American Federation for Children, a school choice organization that recently expanded its footprint in Arizona by hiring former GOP lawmaker Steve Smith to be its first state director.

AFC has produced several videos lambasting Hoffman for alleged problems in the ESA program. It criticized her for refusing to allow a group of Navajo students to use their vouchers at a private school just over the state line in New Mexico, even though such expenditures are clearly prohibited by state law. It took aim at Hoffman again after her department refused to give an ESA to the stepson of woman serving at Ft. Huachuca, which the Department of Education later reversed. And it raked her over the coals for repeatedly missing a 45-day statutory deadline for processing ESA applications, even though the problem had existed for years under Hoffman’s Republican predecessor, which she attributed to legislative underfunding.

Full-time student requirement leads to rejection

The most recent controversy involves a Phoenix family whose homeschooled child was mistakenly approved for an ESA, which the department rescinded five months later.

Mike and Jennifer Retel sought an ESA for their seven-year-old son in late 2018, Emerson, who has speech development issues. Jennifer Retel, a former first grade teacher, homeschools Emerson and her other children. During the last school year, Emerson also attended Eagleridge Enrichment Center, a part-time program in the Mesa Public Schools system that provides art classes and other electives to homeschooled students. 

Students can qualify for a voucher for meeting a number of criteria. ESAs are available to students with disabilities, those attending schools with D or F grades, Native Americans living on reservations, children of active-duty members of the armed forces and students whose siblings receive vouchers.

But first-time ESA recipients also must be full-time public school students. And because Eagleridge is only a part-time program – attendees can qualify as 0.25 or 0.5 of a full-time student, but not more – the Department of Education rejected the Retels’ application for Emerson.

The Retels reapplied and questioned why Emerson was rejected when other Eagleridge students were receiving ESAs. In February, the department changed course and approved the application. The Retels quickly applied for ESAs for three of their four other children, who also attend Eagleridge.

It wasn’t until early July, nearly five months later, that the department informed the Retels that Emerson’s approval was being rescinded. After another month of back-and-forth communications with the department, the attorney general’s office informed the family in early August that Emerson didn’t qualify.

Richie Taylor, a spokesman for the Department of Education, said the department made a mistake when it approved Emerson’s application and failed to see that Mesa Public Schools coded him as a part-time student. He said the department took so long to realize its error because the application was for the next school year, and it didn’t begin processing such applications until after lawmakers approved a budget, which sets the amount of money ESA students receive. 

The department realized the mistake when it processed the applications for Emerson’s siblings, Taylor said. 

Mike Retel said he questioned the initial rejection of Emerson’s ESA application based on his understanding that nearly 30 other students qualified for the program based on their enrollment at Eagleridge. 

Heidi Hurst, a spokeswoman for Mesa Public Schools, said that’s not the case. For most families, Eagleridge is a public school whose services are provided free of charge to homeschooled students. But for ESA students, it’s an educational service they can purchase. Hurst said the 27 students Mike Retel referred to were ESA students who were using their voucher money to attend Eagleridge, not students who qualified based on their enrollment in the enrichment program. 

Hurst said Mesa Public Schools is unaware of any Eagleridge students qualifying for an ESA based on their enrollment in the program. Taylor said the district mistakenly coded some Eagleridge attendees as full-time students, though he said he’s unaware of any who qualified for vouchers because of it. Hurst said the district miscoded one student as full-time, but the situation was rectified and she’s unaware of the student qualifying for the ESA program. 

The Retels plan to appeal the Department of Education’s decision. Given that they were led to believe for five months that Emerson had qualified for a voucher and that the family had planned around that assumption, Mike Retel said it’s only fair that the department honor the commitment it made. 

Had they received their voucher money for Emerson, the Retels said they would have used it for private speech lessons. The Retels are still homeschooling Emerson, though he no longer attends Eagleridge because the family is still trying to appeal the rejection of his ESA application. Mike Retel said it will be difficult for his single-income family to pay for Emerson’s speech therapy.

Based on the approval of his ESA application, Mike Retel said the Department of Education should grandfather him into the program “until the legislature can do something about the 100-day requirement.”

“Special needs children, some of them don’t do very well in the public school system. Some of them do,” he said. “In some situations, it would be nice if we didn’t have the 100-day rule so we wouldn’t put kids in a position to fail at the public school if it’s not the right environment for them.”

In the meantime, Mike and Jennifer Retel have been active on Twitter urging Hoffman to restore Emerson’s ESA and seeking help from other public officials, including Ducey. 

Ducey criticizes ‘bureaucracy’ for rejection

The Ducey administration’s official Twitter account responded to the Retels, saying it’s “important that bureaucracy doesn’t get in the way of Arizona children having access to a great education that best fits their needs.”

“We are looking into these problems and we’re hopeful we can work with the Department of Education, and the legislature if necessary, toward a resolution,” the administration wrote. 

Ptak didn’t elaborate on what changes the governor might seek. The only way for Emerson or similarly situated students to qualify for ESAs would be to reduce or eliminate the requirement that recipients be full-time students.

Ducey has already signalled one substantive change he’ll push for in the 2020 legislative session.

During the last session, lawmakers made a temporary change to state law allowing Navajo students to use their ESAs at a private school within two miles of the Arizona state line. State law expressly prohibits the use of voucher money to pay for tuition at out-of-state schools, and the Department of Education instructed the parents to not use the money at Hilltop Christian School and ordered them to repay money that had already been spent on tuition.

In his signing statement, Ducey said he wants to make the change permanent for Native American students. His office hasn’t opined on whether he’ll seek to allow other ESA students to do the same. The Department of Education recently rejected a request by a family in Colorado City to continue using voucher money at a private school that relocated to the neighboring community of Hilldale, Utah. 

The department has discussed the Retels’ situation with the Ducey administration, Taylor said, and the administration has asked to be informed of any updates regarding the family’s appeal. 

Lack of funds hampers oversight

Taylor said the Department of Education looks forward to discussing how to improve the management of the ESA program with the governor’s office, legislature and other stakeholders. Ultimately, he said, the issue is one of financial resources.

“We want those already on the program, and those wanting to apply, to receive the excellent customer service they deserve. However, based on current program administration funding and staffing levels, it is very difficult for the department to meet the needs of ESA students and families,” Taylor said.

State law allows for up to 5 percent of the program’s total funding to go toward administration, with 80 percent of administrative funding going to the Department of Education and the rest going to the state Treasurer’s Office.

Republican lawmakers who have otherwise championed the ESA program have never provided the full 5 percent for its funding, and pro-school choice groups like AFC and Goldwater Institute, which wrote the original voucher law, have never made that funding an issue. 

Hoffman and her predecessor, Republican Diane Douglas, have both publicly called for the full funding.

Ducey left the door open to pushing for additional funding, but was noncommittal.

“We’re heading into a budget cycle here in January. I’m curious as to what the needs are. But people that are inside the system should have access to it. And that’s something that’s important to me and it’s important to these parents as well,” the governor said. “I want to understand the numbers and the budget. It’s in negotiation.”

Smith, the former lawmaker who now serves as AFC’s state director for Arizona, said one problem his organization would like to see addressed is “vagueness” in what kinds of expenditures are permitted in the ESA program, a standard that can change with superintendents. In one recent case, he said the Department of Education referred a parent to the attorney general for alleged fraud after using voucher money for a kind of hearing therapy that it had previously approved.

“That’s the vagueness of so much in that program where parents just go off what’s historically been done,” Smith said. “We would just like some certainty, as would the parents.”

Expansion will spark resistance

Any real or perceived expansion of the ESA system is almost certain to be met with fierce resistance. 

In 2017, ESA advocates achieved a longtime goal when the legislature and Ducey approved a law expanding the program to all students. Opponents quickly sprang into action, and blocked the law from going into effect by collecting enough signatures to refer it to the November 2018 ballot via citizen referendum. Voters overwhelmingly rejected the expansion.

Save Our Schools Arizona, the grassroots organization that led the signature-gathering campaign against the expansion law, is still committed to opposing other expansions of the ESA program. Spokeswoman Dawn Penich-Thacker said SOS Arizona will be on the lookout again next year, including for efforts to allow the use of ESA money at schools outside of Arizona.

While advocates say there’s no reason ESA students shouldn’t be able to use voucher money at schools that are in their cross-border communities just because they’re on the other side of the state line, Penich-Thacker is suspicious that such a policy will be a slippery slope, and cited “town tuitioning” policies in other states that allow voucher recipients to use their money at out-of-state schools.

“We know from the ESA history that it is incremental expansion. So, today it’s Navajo kids going into a neighboring state. And next year it will be Arizona tax dollars going wherever they want it to go,” Penich-Thacker said.

If ESA supporters really want to help the program, she said, they should advocate for the Department of Education to receive full funding to administer it.

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Jeremy Duda
Jeremy Duda

Associate Editor Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”