Arizona's school privatization battle heats up: Will the voters get to decide?

Republicans' massive school voucher plan may yet be defeated (again) — but the challenge is stiffer this time

By Kathryn Joyce

Investigative Reporter

Published September 20, 2022 6:30AM (EDT)

Arizona teachers march toward the State Capitol as part of a rally for higher wages and better funding on April 26, 2018, in Phoenix. (Ralph Freso/Getty Images)
Arizona teachers march toward the State Capitol as part of a rally for higher wages and better funding on April 26, 2018, in Phoenix. (Ralph Freso/Getty Images)

A fight over the future of the most sweeping school voucher program in the country has heated up in Arizona over the last few weeks, as public school advocates race to gather enough signatures to trigger a ballot referendum aimed at overturning a voucher law recently passed by the state's Republican-dominated legislature. The referendum campaign, which faces a crucial deadline this Friday, has drawn intense opposition from Arizona conservatives. This has included funding for multiple anti-referendum websites, roadside protests starring Republican legislators and, over the last two weeks, conflicts between activists both on social media and in the streets. 

At the end of June, Arizona Gov. Doug Ducey signed a law that immediately created the most expansive school privatization plan in the country, opening up a pre-existing program that gave vouchers to several categories of qualified students to any family in the state. The Empowerment Scholarship Accounts (ESAs) program was first launched in 2011, ostensibly to help high-needs students whose parents had opted out of public school access specialized educational programs with tuition vouchers for private schools, including religious schools, and other educational expenses. In subsequent years, the program was steadily broadened to include other groups — like students in F-rated schools, in foster care, on Native American reservations or in military families — until this spring, when Arizona legislators responded to Ducey's request to "expand school choice any way we can" by opening the ESA option to any student in the state. 

Under the new law, any Arizona parent who opts their children out of public school will receive a debit card with an average balance of just under $7,000, which they can use to spend on almost any educational needs they choose, from private school tuition to homeschooling expenses to buying computers to hiring private teachers for "microschools." Public education advocates immediately warned that such a huge transfer of public funds to private hands could be the death knell for public schools, which would likely have to make untenable cuts to teaching staff and school programs.

Since applications for ESAs opened in mid-August, the Arizona Department of Education says that close to 10,000 parents have signed up, nearly doubling the roughly 12,000 Arizona students who were already using the program last year. But as of last week, Capitol Media Services reported that 75% of the new applications were for students not currently enrolled in public schools, prompting Arizona superintendent of public instruction Kathy Hoffman to charge that the ESA expansion was becoming "a taxpayer-funded coupon for the wealthy," effectively subsidizing the cost of private school tuition for parents who could already afford to pay. 

From the inception of Arizona's ESAs, critics have charged that they're little more than a workaround to funnel public tax dollars to private schools. The idea was born after a court found in 2009 that two earlier Arizona school voucher programs were unconstitutional, violating the state's prohibition on using public money for private education. In 2011, under the guidance of the Goldwater Institute, a conservative think tank, the state launched an ingenious alternative: sending state funds directly to parents, who spend the money as they see fit. The ESA option then became a nationwide model, copied in numerous other states and increasingly seen by conservative education reform activists as "the purest form of school choice." When Ducey signed the universal ESA law in late June, conservatives around the country immediately declared Arizona the new "gold standard" for "school choice" and called on all red-state governors to follow its lead.

To a large extent, history is repeating itself. In 2017, Arizona's legislature first attempted to open the ESA program to all 1.1 million Arizona students, but a year later the law was overturned after public school advocates launched a citizens' initiative referendum campaign and put the issue on the general election ballot. Voters rejected the law nearly two to one, with 65% voting against it. 

Flash forward to summer 2022, as the new law prompted the launch of a similar referendum campaign, led by the public school advocacy group Save Our Schools Arizona (SOS Arizona). If the group and its allies can gather 118,823 signatures — an amount equivalent to 5% of the gubernatorial vote in 2018 — within 90 days of the law's passage, the voucher expansion will be enjoined (in other words, put on pause) until the referendum appears on the ballot in 2024. 

But the challenge seems greater this time around. The signature threshold is significantly higher than the 76,000 required for the 2018 referendum, and Ducey's decision to wait 10 days to sign the ESA expansion into law meant the referendum campaign has had only 80 days to gather the required signatures. Recent legislation and trends at the state Supreme Court have also made the process of getting those signatures approved a riskier bet. Once the signatures are turned in on this Friday, they will come under intense scrutiny from groups supporting the ESA expansion, including the Goldwater Institute and the American Federation for Children (AFC), one of Betsy DeVos' most active "school choice" organizations. 

"They're already signaling massive legal battles," said SOS Arizona director Beth Lewis, who said that petitions are frequently challenged over not just issues like duplicate signatures but also incomplete addresses for signees and smudged notary markings. 

The final weeks of petition gathering have turned openly hostile, as right-wing groups have launched a massive "Decline to Sign" campaign and volunteers say they've been surrounded, harassed and followed for blocks on end.

In the meantime, the final weeks of petition gathering have turned hostile, as groups backed by the Goldwater Institute and AFC have launched a massive "Decline to Sign" campaign, holding protests at petition gathering spots, urging supporters to call businesses near petition sites to complain that "this is hurting our children's education" and videotaping both petition circulators and voters who sign, posting clips of those interactions online. In this atmosphere, petition volunteers say they've been surrounded, harassed and followed for blocks on end, while pro-ESA protesters say they've been insulted or sworn at by referendum supporters. 

While Lewis said there wasn't "any organized opposition" to the petition process in 2017, this year, "It's like a war zone at some of these events." 

The pro-ESA protesters also enjoy the support of numerous prominent Republicans. In a late July Facebook video, Arizona's Republican gubernatorial nominee, Kari Lake, stood with "Decline to Sign" advocates, directing voters, "Do not sign any petitions right now, especially if they're from SOS Arizona." In mid-August, the campaign was featured on Steve Bannon's podcast, as the former Trump strategist declared that Arizona's ESA program would "change education throughout the country." 

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This past weekend, four Arizona Republican legislators made appearances at an anti-referendum roadside protest in Tempe, an affluent suburb just outside Phoenix. Among them were state House majority leader Ben Toma, who authored the House version of the ESA bill; state Sen. Wendy Rogers, who drew national condemnation and a legislative censure last spring after addressing a white nationalist conference, where she called for hanging political enemies; and state Sen. Warren Petersen, one of only two other senators to vote against Rogers' censure and who was himself featured in ads for an affiliated far-right event in April (although he ultimately did not attend). 

The Goldwater Institute and American Federation for Children have also funded two websites affiliated with the protest movement. Several weeks ago the former group sent a letter to the Arizona attorney general calling for an investigation into state school district employees who attended the annual law conference of the Arizona School Boards Association, because they claimed the event would include a group that was gathering signatures for the referendum. 

In August, the state Supreme Court rejected a citizens' initiative that would have expanded voting rights and, notably, would have limited the state legislature's ability to overturn federal election results.

In the years following the decisive 2018 ballot referendum on the previous universal-voucher law, the Republican-dominated legislature has repeatedly attempted to pass new restrictions on the citizens' initiative process, such as requiring that petition gatherers gain a certain percentage of signatures from each county in the state. While some of those measures have failed, Lewis says the state's Supreme Court — which was expanded by Gov. Ducey, who has now appointed five of its seven justices — has used numerous justifications to reject referendum measures. 

Most recently, in August the court rejected a citizens' initiative that would have expanded voting rights and limited the state legislature's ability to overturn federal election results — a notable issue, given the contentious role Arizona played after the 2020 presidential election. (Joe Biden won the state narrowly, and even a Republican-sponsored "audit" failed to find any evidence of fraud.) While backers of the Arizona Free and Fair Elections Act referendum campaign initially turned in double the number of signatures needed, more than half of those signatures were subsequently invalidated by Arizona courts, using what opponents described as opaque "political math." Ultimately, the state Supreme Court ruled that the petitioners fell about 1,500 signatures short, and the initiative will not be on the general ballot. 

"Now that math is legal precedent, which is terrifying, because it doesn't follow any actual logic," said Lewis. 

Nicky Indicavitch, a mother of five who is SOS Arizona's statewide outreach director, said that the vitriolic nature of anti-initiative protests had shocked her. "What throws me off about the aggressive nature of the counter-protesters is: This simply puts the issue on the ballot for voters to decide," she said. "To have such a strong response to the possibility that voters would have a say in something I find shocking. It makes you think that the counter-protesters understand that [the voucher law] is not going to be supported by Arizonans, and they recognize their only opportunity to get rid of this referendum is to stop it from being on the ballot." 

By Kathryn Joyce

Kathryn Joyce was an investigative reporter at Salon, and the author of two books: "The Child Catchers: Rescue, Trafficking and the New Gospel of Adoption" and "Quiverfull: Inside the Christian Patriarchy Movement."

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Arizona Doug Ducey Education Public Schools Reporting Republicans School Vouchers