Niehaus v. Huppenthal

Summary Question

Does Arizona’s Education Savings Account (ESA) violate the Aid and Religion Clauses of the Arizona Constitution, and unconstitutionally condition a benefit on the waiver of a constitutional right.

Summary Answer

NO. The Court stated, "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.” Echoing the U.S. Supreme Court’s language in Zelman v. Simmons-Harris, the court said, “Any aid to religious schools would be a result of the genuine and independent private choices of the parents."

Litigation

Challenging Arizona’s “Empowerment Scholarship Accounts,” the nation’s first education savings account program, enacted in 2011.

Opposed to educational choice program: Arizona Association of School Business Officials, Arizona Center for Law in the Public Interest, Arizona Education Association, Arizona School Boards Association, National School Boards Association.

In support: Arizona Attorney General Horne and Superintendent of Public Instruction Huppenthal, Goldwater Institute, Institute for Justice, Scharf-Norton Center for Constitutional Litigation.

Outcomes

On October 1, 2013, the court of Appeals of Arizona First Division ruled that Arizona’s education savings account (ESA) law did not violate the state constitution, finding that ESAs are neutral toward religion. On March 21, 2014, the Arizona Supreme Court declined to review the case. Although a prior 2009 decision by the Arizona Supreme Court in Cain v. Horne 202 P.3d 1178 (Ariz. 2009) (en banc) found vouchers to be unconstitutional in Arizona, the appellate court distinguished ESAs, opining that they do not violate the state constitution because funding can be used for a variety of educational resources in addition to private school tuition, and because they are neutral toward religion.

Why it Matters

This important ruling set the stage for broader educational choice in Arizona, and it raised interest in ESAs across the country. Although the Arizona Supreme Court ruling in Cain v. Horn, finding vouchers to be unconstitutional, still stands, Arizona families have a new way to access state funding for private school tuition and other educational resources.

Effects

Arizona’s ESA currently serves over 76,000 students. As a result of the development of this new educational choice program in Arizona and the subsequent ruling upholding the program, ESAs have been adopted in Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Louisiana, Mississippi, Montana, New Hampshire, North Carolina, South Carolina, Tennessee, Utah, West Virginia, and Wyoming.