My wife and I have three children who have been Empowerment Scholarship Account (ESA) holders. Our children have been in the program for many years due to their special needs qualifications. 

As part of the ESA program, there is an item classification called an Associated Good, which essentially means that items that would not typically be an allowable expense are permitted in order to meet specific special education academic goals. An Associated Good can be allowed based on the recommendation of a certified therapist or other professional. The letter must specify the reason for the Associated Good, particularly the beneficial impact to the student’s education. Our purchases were made in line with guidelines and rules involving an item procured as an Associated Good. 

We had purchased each of our children a child’s electric dune buggy as an Associated Good. These devices were designed for a single child with weight limit not exceed 120 pounds, had a maximum speed of 10 mph and required a 12 hour charge for 45 minutes of run time. They are hardly the first thing that comes to mind when one reads about a "dune buggy.” The Amazon link to what we purchased is below.

ESA not only approved the purchase of two of these through the ClassWallet platform, but actually reimbursed us for the other purchase. Just before they had reimbursed us, we were contacted with an allegation that the purchased items were not approved. We filed an appeal, and ESA reimbursed us. A few months later, the AZ Department of Education's (AZDE) legal department came back claiming that the purchases were not allowable expenses and that we would need to repay the amount for the purchases. 

We filed the appeal and defended ourselves in the Administrative Hearing. At an Administrative Hearing, a Hearing Officer acts in a judicial capacity and rules on the details of the dispute. He hears evidence, reviews facts, and applies the law. The result is a report generated by the hearing officer which entails Findings of Fact and Conclusions of Law. The report proposes a recommendation to the SBE largely based on the legal merit of each party’s argument and evidence. We testified to how the purchases support our children's education. Our therapist testified to how the purchases support our children's education. The hearing officer recommended to the Arizona State Board of Education (SBE) that the purchases be allowed. This was a tremendous relief to us because the SBE had never before ruled against the findings of the hearing officer in favor of AZDE-ESA. In fact, the SBE had before ruled against the findings of the hearing officer in favor of the account holders.

But in our case, the SBE voted in favor of the AZ Department of Education, essentially ignoring the findings of the hearing officer. It had never happened before.

We did not anticipate the way our purchases and the appeal had become politicized. 

You may have seen or heard the news articles about the family who purchased dune buggies. These articles always showed images of full size, side by side, off road vehicles being driven by a teenager or an adult. The reality is that the devices we purchased were designed for a single child with weight limit not exceed 120 pounds, had a maximum speed of 10 mph, and required a 12 hour charge for 45 minutes of run time. (There are two example links at the bottom of the story for your reference.)

So our family had to make a decision. We could either appeal the SBE’s decision in Superior Court or simply pay back the cost of the purchases. The smart thing would be to pay the purchases back and be done, but the right thing was to fight a corrupt, politicized decision by the SBE. Our family decided to appeal in Superior Court. We employed a lawyer and filed in Superior Court. 

Long story short, the judge in Superior Court ruled against us without following new guidance issued by the Arizona Supreme Court and without evaluating the merits of the brief. We have spent thousands in legal fees to prevent the SBE from being able to arbitrarily decide what is allowed and not allowed regardless of the legality or propriety of the arguments being made. The SBE lifted the stays on our children’s ESA accounts, which has prevented them from continuing to pay for tutors, equipment, and therapies until this case is settled.

We have filed to appeal the judge’s findings. This case is no longer about dune buggies or associated goods for special education. This case is about whether or not the SBE and ADE can insist parents repay approved and legal purchases because some individuals on the SBE or at ADE deem it ‘unreasonable.’ 

We are reaching out for your support to continue funding our case against the SBE. 

This case is about preventing a legal precedent where the ADE can decide that a previously approved purchase is no longer an allowed expense and require reimbursement or the suspension of the ESA account. 

This is a case about preventing a legal precedent where the SBE can decide whether or not previously approved and legally allowable expenses can be overturned based on the SBE’s understanding of the ‘reasonableness’ of a purchase. 

This case is about standing up for the ESA account holders who have followed the rules, guidelines and handbook only to have their children’s education jeopardized so that the SBE and ADE can make headlines for their political purposes.

Please donate to help us prevent the SBE and ADE from setting a far reaching and harmful precent that will impact untold numbers of ESA account holders. The funds will be used for legal expenses.

We intend to fight as long as we have the funds and there is a legal pathway.

What was publicized:

https://sosarizona.org/2024edreportseptember1/

What we actually bought: 

https://www.amazon.com/dp/B000VEWWF6?ref_=ppx_hzsearch_conn_dt_b_fed_asin_title_2