New NextSteps feature tracks education choice challenges

Welcome to docketED, your guide to the intersection of school choice, the courts and the constitution. 

If 2023 was the year of school choice for supporters, 2024 is shaping up to be the year of the legislative workaround. 

With the federal constitutional issues settled, a new game plan brought legal battles closer to home. Opponents are zeroing in on approval processes, funding mechanisms and state constitutions.  

Some of these efforts, like an Arkansas court challenge of new ESA legislation, failed. Two Kentucky court rulings blocked scholarship programs and charter schools. Other lawsuits, such as in South Carolina and Alaska, are still being decided. 

“Opponents are willing to use any tools in their toolkit to defeat school choice,” said Tom Fisher, vice president and director of litigation for EdChoice 

The school choice advocacy group recently joined with the national public-interest law firm Institute for Justice to form the Partnership for Educational Choice, with plans to eventually hand off to Fisher’s team all state-level existential threats.  

Fisher said he isn’t surprised to see tactics that opponents used in the Arkansas lawsuit, which accused the lawmakers of failing to follow proper legislative procedure, spread to other states.  

With the focus on state courts, choice-friendly lawmakers are adopting tactics that they hope will remove constitutional hurdles and sidestep costly litigation that often gets tangled up in politics. 

  • Kentucky Rep. Josh Calloway, R-Irvington, introduced House Bill 208. The measure would ask voters on the November ballot if they want to amend the Commonwealth’s constitution to “give families of limited financial means more educational choices.” If voters approve, the legislature would be able to provide directly from state funds “a portion of the educational costs for parents of students outside of that common school system.” This would allow new education alternatives to overcome recent legal setbacks.
  • To avoid Kentucky’s fate, South Carolina House members are considering repealing constitutional language stating that “no money shall be paid from public funds nor shall credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.” Choice defenders argue that their new ESA program directly benefits students, not schools and passes constitutional muster.Carson v. Makin may have gutted so-called Blaine Amendments, but South Carolina lawmakers want to take their state’s restriction off the books to make sure it won’t rear its head again. In 2020, the state Supreme Court cited the provision when it ruled against the governor’s attempt to establish a private school scholarship program using COVID-relief money. Palmetto State lawmakers are also considering a different program with fewer legal vulnerabilities: S285 would establish a tax-credit scholarship program funded by private donors.
  • In Nebraska, Sen. Mary Lou Linehan, the Cornhusker State’s Little Engine that Could, is fighting on two fronts to protect a 2023 choice program after a union-backed group gathered enough signatures to put the program before the voters. Linehan is sponsoring a bill that would establish a $25 million scholarship program funded by state money that could replace last year’s tax-credit bill and render the referendum moot. She also filed a complaint with the secretary of state to take the referendum off the ballot, saying it interfered with the legislature’s authority over tax law. The secretary denied the complaint, and Linehan is considering a lawsuit. 

  The big national legal fights are won. Choice supporters in statehouses have little time for victory laps as they begin the messy work of making state constitutions align with the principles outlined by the federal judiciary and navigating new options through state-level constitutional quirks that remain likely to keep the movement busy for years to come. 

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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.