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Niehaus v. Huppenthal

Court of Appeals of Arizona, First Division, Department D

October 1, 2013

SHARON NIEHAUS; ARIZONA SCHOOL BOARDS ASSOCIATION; ARIZONA EDUCATION ASSOCIATION; and ARIZONA ASSOCIATION OF SCHOOL BUSINESS OFFICIALS, Plaintiffs/Appellants,
v.
JOHN HUPPENTHAL, in his capacity as Arizona Superintendent of Public Instruction, Defendant/Appellee. GOLDWATER INSTITUTE; ANDREA WECK ROBERTSON; VICTORIA ZICAFOOSE; and CRYSTAL FOX, Intervenors/Appellees.

Appeal from the Superior Court in Maricopa County Cause No. CV2011-017911 The Honorable Maria del Mar Verdin, Judge.

LaSota & Peters, PLC By Donald M. Peters Arizona Center for Law in the Public Interest By Timothy M. Hogan Phoenix Phoenix, Attorneys for Appellants.

Thomas C. Horne, Arizona Attorney General By Kevin D. Ray Jinju Park Phoenix Jordan T. Ellel Attorneys for Appellee.

Scharf-Norton Center for Constitutional Litigation By Clint Bolick Carrie Ann Sitren Taylor C. Earl Attorneys for Intervenor/Appellee Goldwater Institute.

Institute for Justice Tempe By Timothy D. Keller Paul V. Avelar Attorneys for Parent Intervenors/Appellees

DeConcini McDonald Yetwin & Lacy, P.C., Tucson By Denise M. Bainton, National School Boards Association Virginia By Francisco M. Negrón, Jr. Attorneys for Amicus Curiae

OPINION

JON W. THOMPSON, Judge

¶1 Appellants Sharon Niehaus and other interested organizations (collectively, Niehaus) appeal the trial court's judgment denying their request for injunctive relief and granting judgment to appellee John Huppenthal (Huppenthal), in his capacity as Arizona State Superintendent of Public Instruction. Niehaus challenges the constitutionality of the Arizona Empowerment Scholarship Accounts program (ESA). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2011, the Arizona Legislature passed Senate Bill 1553, establishing the ESA, codified at Arizona Revised Statutes (A.R.S.) sections 15-2401 through -2404, to provide education scholarships to students with disabilities. The purpose of the ESA is "to provide options for the education of students in this state." A.R.S. § 15-2402(A). To qualify, a student must have a recognized disability, and have either attended a public school in the previous year or been the recipient of a scholarship from either a school tuition organization or the ESA. See A.R.S. § 15-2401(5). A qualifying student can receive a scholarship equal to ninety percent of the base support level that otherwise would be provided for state education of the student. A.R.S. § 15-2402(C). The parent of a scholarship student must agree to provide an education for the student in at least "reading, grammar, mathematics, social studies and science, " and agree to "[n]ot enroll the qualified student in a school district or charter school and release the school district from all obligations to educate the qualified student." A.R.S. § 15-2402(1), (2). The parent may then apply the scholarship funds to one or more of eleven permissible uses:

(a) Tuition or fees at a qualified school.
(b) Textbooks required by a qualified school.
(c) Educational therapies or services for the qualified student from a licensed or accredited ...

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