A: Yes. Shortly after the first spending accounts (called education savings accounts or ESAs in Arizona) were awarded to applicants in Arizona, several groups including the Arizona School Boards Association and the Arizona Education Association (a teachers union) filed suit to stop the program. Goldwater Institute attorney Clint Bolick represented the Goldwater Institute alongside the Arizona Attorney General’s office and the Institute for Justice in defending the program.
Oral arguments in Niehaus v. Huppenthal were held at the Maricopa County Superior Court on November 28, 2011, and Superior Court Judge Maria Del Mar Verdin issued a ruling on January 25, 2012, that found the spending accounts constitutional. In her opinion, Judge Verdin wrote, “The exercise of parental choice among education options makes the program constitutional.”
On October 1, 2013, the Arizona Court of Appeals also ruled in favor of the accounts. Judge Jon W. Thompson wrote, “The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents. The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs. Parents are required only to educate their children in the areas of reading, grammar, mathematics, social studies, and science.”
On March 21, 2014, the Arizona Supreme Court upheld the appeals court ruling, declaring the program legal in the face of the Blaine Amendment, which exists in nearly 40 states, prohibiting the transfer of government money to a private or parochial school. While the Arizona decision does not guarantee courts in other states will rule in the same way, Niehaus v. Huppenthal provides valuable case law for lawsuits filed against similar policies.
Likewise, in 2016 the Nevada Supreme Court held that Nevada’s universal spending account was constitutional, notwithstanding challenges about funds going to religious schools or for sectarian purposes. However, the court held that it did not adopt an “independent basis” to fund the program outside of the constitutionally protected funding for public schools, and is therefore “without an appropriation to support its operation.”