By Howard Fischer
Mail | Twitter: @azcapmedia

PHOENIX — The state’s top prosecutor is warning parents that pulling their children out of public schools to take advantage of the new universal voucher program could make them the victims of bias, with no legal recourse.

In a statement Monday, Attorney General Kris Mayes said various state and federal laws that prohibit discrimination on the basis of race, religion, national origin and sex, including sexual orientation and gender identity, may not apply in private and parochial schools. And that, she said, would leave parents without legal recourse.

Mayes, a foe of universal vouchers, also made specific mention of federal laws that guarantee students with disabilities a free and appropriate education as well as those that ensure parents have access to their child’s educational records. She said these, too, do not protect students in private schools.

The release drew immediate fire from state schools chief Tom Horne who said Mayes is misleading parents.

He said the voucher system — formally known as empowerment scholarship accounts — provides private schools with the same amount of money for special education students and those with disabilities as they would get at a public school.

Horne acknowledged that, unlike public schools, their private counterparts are not required to accept those students in the first place. He said, though, if they accept them they are making a commitment to meet their special needs.

In the meantime, he said, no one’s rights are being trampled.

“It’s nonsense to say they’re giving up their rights because they may not be admitted,” he said. In essence, Horne said, it’s a waiver.

“They’re not going to give up that right unless they are admitted,” he said.

And if the school doesn’t live up to its promises?

“The parents are the judges of whether a school is doing an appropriate job,” he said, and retain their ability to move their child elsewhere.

As to broader issues of discrimination, Horne said Mayes may be correct. He said a religious school that is sponsored by a church cannot be made to teach beliefs that are contrary to doctrine.

But Horne, himself a former state attorney general, said he believes that any school, private or otherwise, that refuses to admit students solely because of their race would still find itself in legal trouble.

Mayes’ release also drew derision from Republican Abe Hamadeh who narrowly lost the race for attorney general last year and who still is trying to get court to overturn the election results.

“This is propaganda from the illegitimate Mayes who is trying to intimidate parents from participating in empowerment scholarship accounts,” he said in a statement.

But Richie Taylor, Mayes’ press aide, said it is simply an effort to inform parents who, until now, have had no reason to familiarize themselves with vouchers.

The original program started out as way program to help students whose special needs could not be met in public schools.

A challenge to its legality was rejected by the Arizona Supreme Court in 2011. The justices said it does not violate constitutional provisions barring aid to private and parochial schools because the money goes not from the state to the schools but instead to the parents who choose how to spend it.

Since then, the Republican-controlled Legislature has enacted a series of expansions to where vouchers are now available to foster children, children of those in the military, students living on reservations, and students attending any school rated D or F.

Parents who home school also are eligible for state funds.

The latest uproar follows the decision by the Republican-controlled Legislature last year to open the voucher program to any of the 1.1 million students in public schools. That has led to claims by Gov. Katie Hobbs and Democrat lawmakers that the program siphons off dollars from public education and will cost hundreds of millions of dollar more than estimated.

With GOP lawmakers unmoved and no apparent legal recourse, foes like Mayes have turned their attention to how the program is set up and how it is administered.

Her press release Monday is designed to give parents some second thoughts before moving their children — particularly those with special needs — out of public schools.

“Families should not be denied admission or kicked out of private schools because of a child’s disability,” Mayes said in her statement. “To make matters worse, private schools often refuse to share the educational records behind those decisions.”

And Mayes said that federal laws governing the rights of parents and children in these matters don’t apply to private schools.

“It’s important for Arizona families to be aware of the rights they give up when they leave the public school system,” she said.

Horne said all that ignores the fact that it was the students with special needs who became the first voucher recipients more than a decade ago. He said that shows private schools are willing and able to provide for their educational needs.

Still, Horne acknowledged, the law does allow private schools to “cherry pick,” deciding which students it wants to accept and which it turns away, an option that does not exist for public schools. The schools chief sidestepped the question of whether that is proper.

“That’s a legislative question,” he said.

“My job is to implement what the Legislature did,” Horne said. “And they decided to go the way they went.”

That still leaves the issue of whether, beyond a student’s disability, a school can discriminate — one that both Mayes and Horne concede may not be clear cut.

“Students who face discrimination based on a protected class other than disability may be covered under state and federal public accommodation anti-discrimination laws,” said Mayes press aide Richie Taylor.

But he also said that parochial schools and religious institutions may be exempt.

“Protections under these circumstances are face specific, based on the type of educational institution, the allegations of discrimination, and the specific protected class at issue,” Taylor said.

Horne said it was a legislative decision to put language in the law which says that schools that accept vouchers do not need to alter their creed, practices, admissions policy or curriculum. But he said he does not believe that gives these schools carte blanche to do what they want.

“I would think if they said, ‘No Black students need apply’ we would find a way to say they are violating the civil rights law,” Horne said.