John Huppenthal is Arizona's elected Superintendent of Public Instruction, and is running for re-election this year. So, it was a bit surprising to learn yesterday that he is making robocall pitches to homes in "poor performing school districts", telling them about a state program that could allow students to attend "private school for free." The question is whether such private school promotion- including religious school - violates Huppenthal's responsibilities and fiduciary duties to public schools.
Kudos to Brahm Resnik and KPNX (Channel 12, Phoenix, NBC affiliate) for getting a recording of the robocall and putting together a great investigative report in a very short time. As reported, the Alliance for School Choice ("ASC") is the sponsor of the robocalls.
ASC is a national organization co-founded by John Walton, one of the (late) heirs of the Walmart fortune, and has received $15 Million from the Waltons. ASC has also been part of the Education Task Force for the American Legislative Exchange Council ("ALEC"). That task force developed the model for Arizona's Empowerment Scholarship Account program, which is the program that Supt. Huppenthal was pitching. Current co-chair of the ALEC Education Task Force is a representative from the Arizona-based Goldwater Institute - which Resnik notes was co-responsible for the robocalls.
ALEC's September-October 2013 newsletter does a very good job of describing and praising the Empowerment Scholarship Accounts, noting that Arizona is the only state delivering money that would go to the student's public school district to private schools. 90 percent of the money that would go to the public school instead is given to the student's parents to spend on other education alternatives - including religiously-based private education.
The Arizona Legislature is currently considering measures that would expand that program and make it available to more than just special needs students or those in poorly-performing public school areas.
Huppenthal's initial response to Resnik was that he is the Superintendent of all of the public - that the word public is not intended to describe "public schools" vs. "private schools." He has some basis for that, but the Arizona Constitution and enacted laws also place him in the position of having fiduciary responsibility to the public school system. Here is a bullet point analysis:
1) Article 11, Section 4 of the Arizona Constitution does indeed refer to "public instruction" but also makes him member of - and secretary of - the State Board of Education. (I'm pretty sure private schools still do NOT want to be included in the definition of "public instruction", even as they benefit from state-enacted scholarship funds.) http://1.usa.gov/1jvmsg9
2) Art.11, Sxn.3 says Legislature sets the powers and duties of the Bd of Educ. http://1.usa.gov/1ePijS0
3) A.R.S. Sxn 15-203 sets the primary purpose (1st listed) as "Exercise general supervision over and regulate the conduct of the public school system and adopt any rules and policies it deems necessary to accomplish this purpose." http://1.usa.gov/1bUPUr8
4) A.R.S. Sxn 15-161 specifically forbids Bd of Educ from exercising supervision or control over private schools: "Nothing in this title shall be construed to provide the state board of education or the governing boards of school districts control or supervision over private schools."
5) "Public educational institutions" is defined in a couple of statutes as including charter schools, but NOT private schools.
6) A.R.S. Sxn 15-251 does give the Supt the power/duty to superintend all of the schools - which presumably includes private schools. However, that duty is arguably NOT to students at those schools. Huppenthal's robocall was to benefit private school students. http://1.usa.gov/1dGIrbK
Yeah, Huppenthal SHOULD be concerned about all kids who are members of "the public". BUT, the specific Constitutional responsibility (not even "primary", but the only) he was given by the electors of this state is to "the public school system". His fiduciary responsibility is to that public school system.
(Because of AZCentral's "autoplay" feature, we have un-embedded the video. Please visit this link to view the Channel 12 report.
(Contributed by co-founder and Arizona attorney Paul Weich.)
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