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.
| State | What was bought | Allowed or flagged? | Source |
|---|---|---|---|
| Arizona | Disney parks, Disney stores and Disney+ subscriptions — at least $21,000 across 100+ accounts; trip-related expenses in 44 states and 13 countries | Disney and personal travel are not allowed; spent anyway | 12News |
| Arizona | A one-carat diamond necklace, lingerie, jet ski rentals, gaming consoles, a designer purse, Air Jordans — among ~84,000 flagged purchases, Dec. 2024–Oct. 2025 | Flagged “unallowed” by the state’s own audit | ABC15 |
| Arizona | A $7,500 gaming PC, $2,000 in Roblox currency, $2,000 in Visa gift cards, and $73,000 parents paid themselves to tutor their own kids | Flagged; $9.1 million total in questioned spending | ABC15 |
| Arizona | Broadway shows (some tied to New York trips), Disney on Ice, Harlem Globetrotters | Event tickets largely allowed | 12News |
| Arizona | 100+ Arizona Snowbowl ski passes (~$19,000), a ~$4,000 piano, freeze-dryers, tower gardens, ninja-warrior gyms and trampoline parks | Largely approved; the state called the piano allowable | ABC15; Arizona Republic |
| Arizona | Kayaks, espresso machines, high-end LEGO sets (at least $7.2 million in LEGO overall) | Allowed as “supplemental materials” until the AG intervened | 12News |
| Florida | Theme park admission (Disney World, SeaWorld, Universal, Legoland), TVs up to 55 inches, paddleboards, kayaks, surfboards, treadmills | Explicitly allowed in the purchasing guide | Tampa Bay Times; Orlando Weekly |
| Florida | Swing sets, foosball and air hockey tables, trampolines, dolls, stuffed animals; parents in private groups planning an $800 LEGO set as a Christmas gift | Allowed items; the gift use was parents’ own description | Popular Information |
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.
Tallying the damages
If she could get into court, what would she claim? The Kansas panel named the core harm: the opportunity does not repeat itself, and for most people, once it passes, it is gone. The U.S. Supreme Court said much the same in Plyler v. Doe (1982): the inability to read and write “will handicap the individual deprived of a basic education each and every day of his life.”
Start with what can be counted. Using 2025 Bureau of Labor Statistics data on earnings by educational attainment (full-time workers, age 25+):
| Highest attainment | Median weekly earnings | Annual (×52) | Annual gap vs. no diploma | Gap over a 40-year career (undiscounted) | Unemployment rate |
|---|---|---|---|---|---|
| Less than high school diploma | $770 | $40,040 | — | — | 6.1% |
| High school diploma | $966 | $50,232 | $10,192 | ~$408,000 | 4.3% |
| Some college, no degree | $1,062 | $55,224 | $15,184 | ~$607,000 | 3.8% |
| Bachelor’s degree | $1,578 | $82,056 | $42,016 | ~$1.68 million | 2.8% |
These figures understate her loss. The “less than high school” group includes people with ten or eleven years of real schooling who can read, write and do arithmetic. She has none of that. And the earnings figures cover only those working full time. Her higher odds of unemployment, part-time work and no work at all are not in the table.
Then add what is harder to price:
- No credential. Without a recognized diploma or transcript, she must first earn an equivalency credential before she can enroll in most colleges or apprenticeships. That means years of remedial work as an adult, while also trying to earn a living, exactly the trap the Kansas panel described.
- Foreclosed paths. Military enlistment, many licensed trades, and most postsecondary programs screen on a diploma or basic skills she does not have.
- Lost literacy and numeracy. Learning to read as an adult is possible but far harder, and adult literacy services are thinly funded.
- Civic and personal costs. Reading a lease, a ballot, a prescription label or a court notice.
- The money itself. At roughly $7,000–$10,000 a year in Arizona and about $8,000 in Florida, a K–12 career in the program represents on the order of $100,000 in public funds spent in her name. Whatever went to theme parks and televisions was money the state set aside for her education and allowed someone else to spend.
And under the current statutes, the state has no obligation to notice any of this until she shows up, at 18 or 25, needing an adult education program that the same legislatures have every incentive to underfund.
Closing: whose choice?
Voucher advocates frame all of this as parental choice, and most parents in these programs surely are trying to educate their kids. But a choice program that funds a parent’s decision, defines that decision as legal attendance, and never checks whether the child learned anything has made a choice of its own. It has chosen not to know.
The Kansas judges understood that the burden of a failed policy experiment falls on the children, who did not consent to it and cannot undo it. Arizona and Florida have built that lesson into statute in reverse. If the experiment fails a particular child, the law offers her almost nothing: no duty anyone owed, no standard anyone missed, no defendant she can realistically sue.
At a minimum, a state that funds a child’s education should be able to tell that child, at 18, what it bought. Right now, Arizona can tell her how much it spent at Disneyland.
Policy brief
The full policy brief, No Recourse: Universal Education Savings Accounts, Public Money, and the Students They Leave Uneducated, includes a side-by-side comparison of the Arizona and Florida program requirements and six recommendations for legislators.
