Bruce Baker has written a sterling article about the real price of voucher programs. Who pays? Students.
Universal voucher programs like those of Arizona and Florida provide little, if any, educational benefit to students. They attend schools where teachers need not be certified or experienced. Their curriculum is non-existent. Their standards are phony.
The state pays for them not to get an education. The same may be said of home schooling, where in many cases uneducated parents are sharing their lack of an education with their children.
The result of this negligence is that these young people will earn less money over their lifetimes and have limited opportunities because of their mediocre or non-existent education.
The parents and the state are stigmatizing children by giving them a voucher.
The infamous federal report called “A Nation at Risk” warned about “a rising tide of mediocrity.” Today’s vouchers and home schoolers are responsible for “a rising tide of failure.”
Baker writes:
Back in January 2013, I wrote about three Kansas judges who saw right through the state’s claim that deep funding cuts would cause no harm. The Shawnee County District Court panel in Gannon v. State of Kansas (decision, p. 188) put it this way:
Simply, school opportunities do not repeat themselves and when the opportunity for a formal education passes, then for most, it is most likely gone. We all know that the struggle for an income very often – too often – overcomes the time needed to prepare intellectually for a better one.
If the position advanced here is the State’s full position, it is experimenting with our children which have no recourse from a failure of the experiment.
The Kansas experiment was a legislature cutting school budgets and betting that nobody would be hurt. That was bad enough. But at least in Kansas, the children were still in schools. There were still teachers, curricula, and test results that a court could look at.
A decade later, Arizona and Florida are running a different experiment. They hand public money to parents, place few limits on how it is spent, and ask almost nothing about whether the child learned anything. If that experiment fails for a particular child, who answers for it? Who does the 18-year-old sue?
The new experiment: money out, no questions asked
Arizona’s universal Empowerment Scholarship Account (ESA) program, expanded to all students in 2022, now serves more than 100,000 children and is expected to cost over $1 billion a year. Florida followed in 2023 with universal eligibility and a homeschool ESA, the Personalized Education Program (PEP), worth roughly $8,000 per child.
Consider what the statutes actually require of the parent. Under A.R.S. § 15-2402, the Arizona parent signs an agreement to use “a portion” of the money to provide instruction in reading, grammar, mathematics, social studies and science. That is the whole of the academic obligation. Then comes the remarkable part, subsection I: a signed agreement “constitutes school attendance” for purposes of the state’s compulsory attendance law. The contract is the education, as far as the state is concerned.
There is no testing requirement for ESA students in Arizona, no curriculum approval, no portfolio, and no evaluator. Even homeschool guides that are friendly to the program say so plainly. The state checks receipts, not learning.
Florida asks slightly more. PEP families must submit a student learning plan and have the child take a nationally norm-referenced test each year, with results sent to the scholarship funding organization (FLDOE PEP FAQ; Step Up PEP Family Handbook). But what triggers loss of funding is failing to take and submit the test, not the score. A child can test at a first-grade level in tenth grade and the money keeps flowing.
That is the experiment. The state funds the choice, defines the choice as compliance, and measures nothing that would tell anyone whether the child is learning.
What the money has bought
Reporters in both states have spent three years documenting what this money buys. Some of it was approved under the rules. Some was flagged as improper only after the fact. All of it was spent from accounts that exist, by law, to educate a child.
Baker here posts a chart that includes tickets to theme parks, video games, pianos, lingerie, jewelry, gift cards, payments to parents, trampolines, kayaks, appliances, paddle boards, LEGO sets, dolls, stuffed animals, surfboards, treadmills, swing sets, and much more. Open the link to see his chart.
In fairness to the programs’ defenders, Arizona’s education department maintains that most purchases are valid and that misspending is a small share of the total. Florida’s administrator, Step Up For Students, requires a statement of educational benefit for theme park tickets and caps them at $500 a year (WFTV). When Florida legislators tried to tighten the list in 2024, families lobbied against it and the restrictions failed.
But “small share” is the wrong frame. Arizona auto-approved purchases under $2,000 — over a million requests and $124 million — to clear a backlog, with plans to audit later. Of 18,000 parents flagged for $10.3 million in banned purchases, only six were referred for prosecution. And every audit is an audit of purchases. None asks the only question that matters to the child: was anyone teaching me to read?
The legal question: who does the 18-year-old sue?
Imagine a young woman turning 18 in Phoenix or Orlando. For a decade, her ESA paid for theme park passes, a television, a trampoline and a lot of LEGO. Nobody ever taught her to read beyond a primer. She has no transcript and no diploma. The state that funded all of it called her “in attendance” the entire time. What are her options?
I’m not a lawyer, and what follows is a policy researcher’s tour of the doctrinal terrain, not legal advice. But the terrain is not encouraging.
1. Sue the parent. Arizona abolished parental immunity in Broadbent v. Broadbent (1995), replacing it with a “reasonable and prudent parent” standard. Florida has never gone that far. So in Arizona, at least, a negligence claim against a parent is not barred at the door. But she would then run into the doctrine of educational malpractice. Since Peter W. v. San Francisco Unified School District (1976), courts have refused to recognize a duty of care for academic outcomes. They cite the lack of a workable standard of care, uncertain causation, and the burden on schools. If courts won’t hold trained, licensed educators to a duty to teach a child to read, a court is unlikely to impose one on a parent the legislature expressly freed from any measurable standard.
A narrower theory may be stronger: misappropriation. The Arizona statute says ESA money may be used “only” for the expenses of the qualified student. A diamond necklace or a family Disneyland trip is not that. A custodial-account or constructive-trust theory, treating the parent as having diverted money held for the child’s benefit, at least fits the facts. But that recovers the misspent dollars, not the lost education. And a judgment against a parent with no assets is worth little.
2. Sue the vendor. The private school, the online program, the tutoring center or the “ESA-approved” camp are private actors. A contract or consumer-fraud claim might reach a vendor that took money and delivered nothing. But a vendor that delivered exactly what was purchased (a ski pass, a paddleboard) did nothing wrong. And educational malpractice bars claims that the instruction itself was inadequate.
3. Sue the state, under the federal Constitution. This is where the Kansas panel’s warning bites hardest. San Antonio v. Rodriguez (1973) held there is no fundamental federal right to education. DeShaney v. Winnebago County(1989) held the Due Process Clause generally imposes no duty on the state to protect a child from harm inflicted by a private actor, including a parent. The one federal appellate ruling to recognize a right to a basic minimum education, Gary B. v. Whitmer (6th Cir. 2020), was vacated when the full court took it up after the case settled. She might argue that the state created the danger by funding the deprivation and deeming it lawful attendance. That theory is untested in this setting.
4. Sue the state, under the state constitution. Both states have education clauses. Florida’s is among the strongest in the country, declaring education a “paramount duty” and requiring a “high quality system of free public schools.” In Bush v. Holmes (2006), the Florida Supreme Court struck down a voucher program for diverting public funds to private schools outside that uniform system. But in Citizens for Strong Schools v. State Board of Education (2019), a divided court held that “high quality” offered no judicially manageable standard. More fundamentally, state adequacy litigation produces prospective, system-wide remedies. It is not a damages action for an individual who already aged out.
5. Ask the state to step in. Ordinarily, a child receiving no education might trigger truancy enforcement or an educational neglect inquiry. In Arizona, that door is closed by statute: the signed ESA agreement constitutes school attendance under § 15-2402(I). When the state does catch misspending, its remedy is to suspend the account or send it to collections. Any money recovered goes back to the state, not to the child whose education it was meant to buy.
So the honest answer to the legal question is: almost none. The 18-year-old is, in the Kansas panel’s words, a subject of an experiment with no recourse from its failure. The difference is that in Kansas, the state was cutting the budget of institutions still obligated to teach her. In Arizona and Florida, the state has written itself out of that obligation and handed the obligation, and the money, to someone the law does not hold to any measurable standard.
Please open the link and finish reading this excellent critique.
