States and cities: the next battlegrounds for education freedom

Last year, the landmark U.S. Supreme Court decision Carson v. Makin said excluding schools from choice programs solely because they teach religion violates the First Amendment’s free exercise clause.

The ruling delivered a definitive resolution to decades of legal battles. It dismantled one of the major barriers private school choice programs have faced in state constitutions: Prohibitions on public funding flowing to religious or “sectarian” schools.

The result is a major shift in the national legal landscape surrounding modern school choice programs. The primary terrain of battle is no longer the federal judiciary, but state and local courts across the country. And school choice supporters are spending less time playing defense, ensuring publicly funded programs that allow students to attend programs of their choice pass constitutional muster. They’re going on offense, targeting the remaining barriers not just to school choice programs, but to education entrepreneurs looking to create new options for students.

Leaders at the forefront of this next generation of legal battles say constant vigilance will remain essential.

“The opposition to parental choice programs will be looking for other avenues to block and interfere with choice programs,” said Shawn Peterson, president of Catholic Education Partners, a national nonprofit organization that advocates for expanded school choice. “In some states, that will certainly mean through the state court route as these courts might be more favorable. I do think, however, that those state courts will have to consider the U.S. Supreme Court’s ruling and what that might mean for eventual appeals.”

That’s one of the arguments attorneys are using against a teachers union-backed lawsuit filed in state court to Alaska’s Correspondence School Allotment Program. The program, which evolved from a 1930s program for rural students, now operates like an education savings account program after the legislature changed the law. ESAs are programs that grant families restricted use accounts to spend on state-approved educational expenses. At issue is the state constitution, which says, “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

Defenders of the program argue that the money goes to families who can choose from a wide variety of options, including programs offered by district schools. Eliminating religious schools from that menu of choices would place the state on a collision course with recent federal precedents.

“If you read the Alaska Constitution in a very broad way to say the Legislature can never give any benefit to families that choose private schools, you are making it so that a group of people who are exercising a fundamental liberty interest that is protected by the U.S. Constitution explicitly in case law can never get benefits from the state in the same way that other groups can, and that’s unconstitutional under the U.S. Constitution,” said Kirby Thomas West, an attorney with Institute for Justice, which is intervening in the case for a group of families who are using the program.

Her employer, which represented families in Carson and an earlier landmark school choice case, Espinoza v. Montana Department of Revenue, recently announced plans to phase out its role in defending the existence of the school choice programs as the challenges of unique state laws shift to those states’ courts.

The nonprofit public interest law firm has joined forces with the advocacy group EdChoice. Institute for Justice leaders say the handoff will free it up to focus on another evolving arena as new state laws allow entrepreneurs to start microschools and other non-traditional forms of education.

“We are seeing the fruits of our labor,” said Michael Bindas, a senior attorney at Institute for Justice who argued Carson v. Makin before the U.S. Supreme Court. He said the firm’s goal when it began in 1991 was to settle the First Amendment issues that opponents were using to quash school choice programs in their states. Meeting those goals helped clear the way for a wave of school choice programs across the country.

Those programs are aiding the growth of new programs that challenge prevailing norms in schooling, and risk inviting wrath of hostile regulators.

“Government does what government does when it’s faced with this type of innovation,” Bindas said. “It either tries to apply old regulations to these new kinds of models, regulations that don’t necessarily fit or adopts new regulations that stifle the innovations that parents and entrepreneurs are engaged in.”

Bindas said the new legal frontier of education regulations fits well with Institute for Justice, which has a long history of defending property rights and economic liberty. He said the issues are varied, which makes the new focus exciting.

“These issues come in all shapes and sizes,” he said. “These are issues that IJ has long litigated. We bring our expertise and deep experience to bear on barriers and new burdens that entrepreneurs are facing.”

That’s welcome news to Don Soifer, CEO of the National Microschooling Center. The nonprofit was founded as a resource to support the model, which took off during the pandemic and now serves between 1 and 2 million students.

Soifer hears stories constantly from the founders of small learning communities about their struggles with local officials trying to enforce regulations that were created years ago to apply to other uses. Some governments classify them as day care centers subject to the state’s child welfare agency.

Others require them to apply for special land use exceptions. One founder attending a Harvard University school choice conference mentioned that one regulation required three restrooms for a program serving only 10 kids.

“Today’s American microschooling movement is very different than the schools of choice that precede it,” Soifer said. “Small learning environments can be designed and operated around the specific needs of individual learners and families. Regulatory frameworks need to continue to adapt to these exciting new opportunities.”

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BY Lisa Buie

Lisa Buie is senior reporter for NextSteps. The daughter of a public school superintendent, she spent more than a dozen years as a reporter and bureau chief at the Tampa Bay Times before joining Shriners Hospitals for Children — Tampa, where she served for nearly five years as marketing and communications manager. She lives with her husband and their teenage son, who has benefited from education choice.