BRIEF: School Choice in the States – September 2020

LEGISLATION

D.C.

H.R. 8337, the Continuing Appropriations Act, 2021, and Other Extensions Act, passed Congress. A broad appropriations bill, it extends the D.C. Opportunity Scholarship Program an additional year from its previous five-year appropriation.

Federal

Lawmakers introduced S.B. 4775, the Delivering Relief to America’s Families, Schools, and Small Businesses Act. Included in its text is a provision for Education Freedom Scholarships, a federal tax-credit scholarship for which donors would be able to contribute up to 10 percent of their federal taxable income to state scholarship-granting organizations while receiving a federal tax credit.

LITIGATION

New Hampshire

On September 2, the Institute for Justice filed the first “post-Espinoza” lawsuit, seeking to enforce the June 30 U.S. Supreme Court ruling in Espinoza vs. Montana Department of Education in Vermont. The Espinoza ruling requires states with school choice programs to not exclude religiously-affiliated nonpublic schools as choices for parents participating in the programs; New Hampshire’s town tuitioning voucher program currently does not allow parents to choose religiously-affiliated nonpublic schools. Griffin vs. New Hampshire Dept of Education, Merrimack Superior Court, Docket #217-2020-CV-00480.

Ohio

On September 24, the Supreme Court of Ohio dismissed a Writ of Mandamus complaint which attempted to enforce the state legislature’s January 31, 2020, expansion of the EdChoice voucher program. The Court ruled that the passage of time rendering the sought-after vouchers unavailable to parents who challenged the state, and intervening legislation that amended and limited the January 31 legislation, “rendered this cause moot.” State ex rel. Citizens for Community Values, Inc. v. DeWine, Slip Opinion No. 2020-Ohio-4547.

South Carolina

On September 18, the Supreme Court of South Carolina heard oral arguments in Adams vs. McMaster, Appellate Case No. 2020-001069. This case challenges the Governor’s use of CARES Act Education Stabilization Funds distributed to the state through the Governors Emergency Education Relief Fund. South Carolina intends to use the funds for SAFE Grants, a program allowing parents to access funds for a variety of educational resources, including tuition for their children at nonpublic schools. Those challenging the SAFE Grants program allege that funds are given by the state directly to nonpublic schools, in violation of the South Carolina Constitution. The state argues that funds are given as a direct benefit to parents and their children, while those challenging the program also argue that the CARES Act does not allow distribution of funds to individuals. A decision is expected soon.

On October 5, chairmen of the U.S. House of Representatives Committee on Education and Labor and the Select Subcommittee on the Coronavirus Crisis submitted a request to US Department of Education Secretary Betsy DeVos, asking the Secretary to review the South Carolina SAFE Grants program to determine whether it complies with the language of the CARES Act, and to submit numerous documents to those committees no later than October 16.

Tennessee

On September 29, the Tennessee Court of Appeals ruled that Davidson and Shelby Counties had standing to sue the state, challenging the Tennessee ESA Pilot program. The court further ruled that the program is local in effect and applicable to these two counties in their governmental capacities. As such, Tennessee’s Constitution Article XI, Section 9, which protects local control over local legislation, applies. Therefore, because the state legislature failed to allow for local referendums or votes of county commissioners to affirm or deny the legislature’s vote to enact the ESA Pilot program in their counties, as Article XI, Section 9 requires, the Tennessee ESA Pilot program is unconstitutional. An appeal to the Tennessee Supreme Court is expected. The Metropolitan Government of Nashville and Davidson County et. al. vs. Tennessee Department of Education et. al., Tennessee Court of Appeals, Case number M2020-00683-COA-R9-CV.

Vermont

On September 9, the Institute for Justice filed the second “post-Espinoza” lawsuit, seeking to enforce the June 30 US Supreme Court ruling in Espinoza vs. Montana Department of Education in Vermont. The Espinoza ruling requires states with school choice programs to not exclude religiously-affiliated nonpublic schools as choices for parents participating in the programs; Vermont’s town tuitioning voucher program currently does not allow parents to choose religiously-affiliated nonpublic schools. Valente vs. French, Case #5:20-cv-00135-gwc. The Court will hear arguments on a motion for summary judgment on November 5.

U.S. Department of Education

On September 4, the US District Court for the District of Columbia granted summary judgment to the NAACP against the U.S. Department of Education’s interim final rule regarding distribution of CARES Act Education Stabilization Funds through the ESSER (Elementary and Secondary School Emergency Relief) provision, which would have allowed a greater portion of those funds to be distributed to nonpublic schools. The Court stated, “…the Department’s interim final rule, which conflicts with the unambiguous text of the statute, is void.” The CARES Act specifies that funds be distributed, “…in  the  same  proportion  as  each  State  received  under  part  A  of  title I of the ESEA of 1965 in the most recent fiscal year.” The US Department of Education will not appeal this ruling. NAACP vs. DeVos, US District Court for the District of Columbia, Case No. 20-cv-01996.