by (in alphabetical order) John Garrett Clawson, Reynaldo de la Garza, Victoria Keller, Sarah Pollock, Laurie Roberts, 

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ESAs are often confused with vouchers. The primary distinction is that vouchers can only be used for tuition, while ESAs can be used for a variety of educational expenses. Another distinction is that vouchers transfer tuition from the government to the student's chosen school, while ESA funds are controlled by parents through a government-funded debit card.

Legal issues

States that have passed legislation adopting ESAs include Arizona, Florida, Mississippi, Nevada and Tennessee (EdChoice, 2016). Legislation is typically challenged on a constitutional basis; 40 states have made amendments to or included provisions in their constitutions that prohibit public funding of "religious worship, exercise or instruction" (DeForrest, 2003). Referred to collectively as "Blaine Amendments," in reference to the original failed amendment to the United States Constitution, they are part of the legal landscape in all states that currently have ESAs, with the exception of Tennessee. Plaintiffs argue that because money diverted from public schools to fund ESAs can be spent on tuition at religious private schools, such laws are unconstitutional in states that have such a stipulation in their constitution. Similar forms of school choice, such as vouchers, have also been challenged on this basis in a larger number of states (Burke & Butcher, 2016; Healy & Rich, 2015).

The Heritage Foundation, a conservative think-tank, has been a proponent of ESAs with the specific understanding that they provide a work-around to a given state's "Blaine Amendment." They noted in a recent report titled "Education Savings Accounts: Advancing Choice in States with Blaine Amendments" that:

"The defining feature of ESAs—that parents can make multiple choices for their children’s education—helped them survive a Blaine-based legal challenge in Arizona where the state supreme court had deemed a voucher program unconstitutional. In the 2013 Arizona Court of Appeals’ unanimous opinion, Judge Jon Thompson wrote that '[t]he 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. Any aid to religious schools would be a result of the genuine and independent private choices of the parents.'" (Burke & Butcher, 2016)

At the present time, legislation passed in Arizona, Florida, Mississippi, and Tennessee has been been upheld by each of those statesthose states' supreme courts. However, in in September 2016, The Nevada Supreme Court struck down the state’s education savings account law, ruling that while the premise of using taxpayer money for private education is constitutional, the method used to fund the ESA program is not. The court held that the Legislature’s discretion to encourage other methods of education is not limited by the state Constitution. Moreover, the Court indicated that funds placed in education savings accounts belong to parents and are not “public funds”; therefore, ESAs are not in violation of the Constitution’s prohibition against using public money for sectarian purposes. This has been hailed as a victory by proponents of the legislation. However, justices said that the Legislature cannot divert money specifically authorized for public schools to private educational programs (like tuition at parochial schools). Thus, the Court held that the use of the Distributive School Account funding for ESAs undermines the Nevada Constitution’s mandate to fund public education. Proponents believe that this constitutional issue can be resolved through legislation revising the flow of money into ESAs. In light of this, the the state’s Republican governor has indicated that he will prioritize the issue of ESA funding in the 2017 Legislature when it convenes in February. 

Evidence

ESAs are a new reform, and little direct evaluation of their effects currently exists. Indirect evidence, however, can be gleaned from evaluations of voucher programs. While ESAs often have fewer restrictions on eligible expenditures than do voucher programs (which are typically limited exclusively to tuition), early evidence from Arizona's Empowerment Scholarship Program has found that two-thirds of ESA disbursements are being spent on tuition. In a universal ESA program like the one proposed in Texas, it seems likely that an even larger share would be spent on tuition, so that the effects of ESAs would be similar to those of tuition-only vouchers.

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O'Dell, Rob, and Yvonne W. Sanchez. "State Money Helping Wealthier Arizona Kids Go to Private Schools." The Arizona Republic. Last modified July 7, 2016. http://www.azcentral.com/story/news/arizona/politics/education/2016/02/23/state-money-helping-wealthier-arizona-kids-go-private-schools/80303730/.

“School Choice in America,” EdChoice, last modified Oct. 28, 2016, http://www.edchoice.org/school-choice/school-choice-in-america.

S.B. 1178, Texas 84th Cong. (2015).

S.B. 2695, Mississippi 114th Cong. (2015).

S.B. 302, Nevada 302nd Cong. (2015).

S.B. 431, Tennessee 431st Cong. (2015).

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