Protecting Educational Freedom for Military Families in Arizona 

This month, EdChoice Legal Advocates filed an amicus brief with the Arizona Supreme Court in Protect Education Accountability Now Committee, et al. v. State of Arizona, et al., urging the Court to reverse a lower court’s injunction of a ballot measure that would protect military families’ access to ESA accounts. 

Protecting military families’ access to educational choice is important because of the unique difficulties they face. Families who serve may move frequently, which deprives their children of a stable education environment. They lack the freedom to move to better school districts because their location is assigned by the military. They need flexibility to find the right educational environment for their children, and Arizona voters may reasonably decide that any potential barriers should be entirely removed. 

The measure at issue, HCR 2048, creates a constitutional right for children from military families to access scholarship funds guaranteed to them by the state. It enforces that right by invalidating any measure that would take those funds away. 

The trial court concluded that the measure violated Arizona’s Separate Amendment Rule, which prohibits combining multiple amendments into a single vote. The trial court held that HCR 2048’s enforcement mechanism went further than necessary to protect military families and, as a result, was a different amendment than the right for military families. 

EdLA’s brief argues that the trial court’s conclusion departs from the Arizona Supreme Court’s established precedent. Under Kerby v. Luhrs and subsequent cases, the relevant question is whether provisions of a proposed constitutional amendment are sufficiently related to a common purpose or principle, not whether all the provisions are narrowly tailored. HCR 2048 meets that standard: its provisions work together toward the same objective of protecting educational scholarship opportunities for military families. The trial court effectively applied a different test, analyzing whether each provision is necessary to accomplish the others rather than whether they are interrelated.  

The ability to adopt broad remedies to enforce constitutional rights matters here because voters, not courts or legislators, are exercising the power to amend the Constitution. While branches of government use narrow remedies out of respect for the separation of powers, voters are the source of governmental authority rather than a branch of it and may freely alter the government when amending the Constitution. Courts should not impose additional restrictions on the amending power that the Constitution itself does not require. 

Hopefully the Arizona Supreme Court will reverse the lower court’s decision, protecting voters’ authority over their constitution.  

Read the amicus brief here.