BRIEF: School Choice in the States – February 2021

LEGISLATION

Federal

The U.S. Senate saw a reintroduction of previous efforts to create a federal tax credit to donors of state-based scholarship-granting organizations (SGOs) that award scholarships as a part of state tax-credit scholarship programs. The bill, S 447, would create an individual federal credit worth up to $4,500 and a corporate credit worth up to $100,000. Lawmakers introduced the companion bill, HR 889, in the House of Representatives. It was referred to the House Ways and Means Committee.

Arizona

The Arizona Senate advanced three bills to expand educational opportunities, including:

• SB 1452 to expand eligibility for Arizona’s Empowerment Scholarship Account program to include students from low-income families or who are assigned to district schools with a high proportion of low-income students. The bill passed the Arizona Senate Education Committee by a vote of 5-3 and is now pending before the full Arizona Senate.
• SB 1041 would increase the total amount of tax credits available via Lexie’s Law, a scholarship program for students who have special needs or were adopted through the state’s foster care system, from $5 million to $20 million.
• SB 1273 would expand the eligible categories of expenditures on which families can use their tax-credit scholarships to include career and technical education, uniforms, science lab materials, standardized tests, and a variety of extra-curricular activities.

Additionally, the Arizona Senate passed SB 1685, which expands educational opportunities within the public system by breaking down barriers between districts.

The slew of bills that would have curtailed educational choice all met their demise when they failed to advance before the crossover deadline.

Arkansas

Legislators in Arkansas filed HB 1371, a bill that would create a new tax-credit funded education savings account program for students from low-income families, the children of active-duty members of the military, students with special needs and children adopted through the state’s foster care system. The bill is currently pending before the Arkansas House Education Committee.

Colorado

Colorado lawmakers introduced HB 1080, the Nonpublic Education and COVID-19 Relief Act. The bill establishes a private school tuition income tax credit worth the lesser of the tuition amount or half of the state’s average per-pupil revenue. The bill additionally establishes a tax credit for those who are homeschooling their children but had been enrolled in a public school prior to the pandemic. That credit would be worth $1,000 per child.

Florida

The Florida Senate Education Committee passed SB 48, a massive 155-page bill that affects many areas of Florida’s education policy, including the state’s educational choice policies. Among other things, the bill would combine the state’s five educational choice programs into two education savings account programs: the McKay-Gardiner ESA for students with special needs and an ESA for low- and middle-income students and students who had been victims of bullying and abuse. The bill is currently pending before the Senate Appropriations Committee, where it has already received the recommendation of the Appropriations Subcommittee on Education.

Georgia

The Georgia House Education Committee passed HB 60, a bill that would create a new education savings account program for students from low-income families, the children of active-duty members of the military, students with special needs, the victims of bullying or abuse and children adopted through the state’s foster care system. The bill is currently pending before the full House.

Idaho

HB 215, the Strong Students Grant and Scholarship Program, passed out of House Education Committee in Idaho and successfully received a second reading on the House floor. This bill would empower students with one-time grants and education savings accounts to use their share of state aid to customize education. HB215 now awaits a third reading on the House floor.

Iowa 

House Study Bills 240, 242 and 243 were introduced mid-February and contain the contents of SF 159, which has passed the Senate Floor and is a priority piece of legislation for Gov. Kim Reynolds. These study bills would create private school scholarships for students zoned to low-ranked schools, increase charter schools, and reduce limitations to open enrollment. Specifically, HSB 243 would create a new education savings account program that would be referred to as Student First Scholarships. All three study bills have passed sub-committee and await the hearings before the House Education Committee.

Kansas

The Kansas Senate passed SB 61, a bill that would modify the eligibility criteria for the state’s tax-credit scholarship policy, shifting from a “failing schools” model to eligibility based on family income. The bill is now pending before the Kansas House Education Committee, which recently passed HB 2068, a companion bill to SB 61.

Maryland

The Maryland House introduced and heard HB 939, the Student Education Grant Program. This bill would provide students unable to attend in-person classes during the 2021–22 school year due to pandemic-related closures to apply for a grant to attend an “open” private school. The grants would be run by Maryland’s department of education. The bill is in the Ways and Means Committee.

Lawmakers also introduced and read HB 1113. The bill would create Maryland’s first education savings account program for public school students as well as military dependents to customize their K–12 education at private schools, with tutors, homeschool expenses, textbooks, online learning programs and licensed therapists.

Minnesota

SF 570 was introduced by a bipartisan group of Minnesota state senators. The bill would increase the eligibility of the state’s  K–12 Education Credit by tying the income guideline to the federal free and reduced-price lunch guidelines. The bill was read and referred to the Senate Taxes Committee. A companion bill in the Minnesota Senate, SF 1251, would increase the income limit by a more gradual amount, allow a higher credit limit for computer hardware and software used for education, and add monthly Internet costs as an allowable expense.

HF 776, creating the Equity and Opportunity Tax Credit, was introduced in the Minnesota House. The bill would provide for a 70 percent tax credit to corporate and individual donors to foundations benefitting public and charter schools, providing private school scholarships, as well as providing education transportation grants. Students qualifying for free and reduced-price lunch and students with special needs would be eligible for private school scholarships.

HF 1528, the Education Savings Accounts for Students Act, was introduced and referred to the state’s House Education Policy Committee. The bill would create Minnesota’s first ESA, which would be available on a first-come, first-served basis for all Minnesota public and charter school students. The companion bill in the Minnesota Senate is SF 1525.

Missouri

HB349 has passed the Missouri House of Representatives by a vote of 82-71. If passed by the Senate and enacted into law, this legislation would establish the Missouri Empowerment Scholarship Account program. This program would create a tax credit-funded education savings account program. Funded through charitable contributions, HB 349 has a $50 million dollar contribution cap.  Students are eligible for a Missouri Empowerment Scholarship Account if they attended public school full-time for at least one semester in the last year, previously participated in the program, are eligible to begin kindergarten, or are the children of active-duty military members.

Montana

The Montana House Education Committee passed HB 329, a bill to create an education savings account policy for students with special needs. Additionally, the committee heard testimony on HB 279, a bill that would make several modifications to the state’s tax-credit scholarship program, including raising the per-donor tax credit cap from $150 to $200,000 and expanding the “escalator” on the total tax credit cap from 10 percent to 20 percent.

New Hampshire

Introduced on Feb. 6, SB 130, if passed would create the Education Freedom Accounts (EFAs) program. This nearly universal education savings account proposal would let families use a portion of the state funding (on average $4,600 per account) to pay for a variety of educational expenses. Uses include private school tuition, tutoring, textbooks, educational therapy and more. The next step for SB 130 will be a hearing and vote in the Senate Education Committee.

North Carolina

HB 32 passed first reading in North Carolina. If passed it would expand eligibility of the low-income voucher program, Opportunity Scholarship, to include children entering kindergarten, first, and second grade. The bill would also change the scholarship amount from a maximum amount of $4,200 to 70 percent of the average state per-pupil allocation, and for those children coming from a household that qualifies for free and reduced-price lunch, 80 percent of the average state per-pupil allocation. The bill would also allow up to $500,000 from the Opportunity Scholarship Grant Fund Reserve to be expended on a nonprofit representing parents and families for outreach and scholarship education. The bill would also make changes to the Personal Education Student Accounts for children with disabilities, a special needs ESA program in the state. The bill would change scholarship amounts from a maximum of $9,000 to the state’s formula allocation of a child with disabilities plus 85 percent of the average state per-pupil allocation. The bill would also create a reserve fund for the Personal Education Student Accounts.

SB 36, introduced Feb. 1 and signed into law by the Governor on Feb. 10, created an additional appropriation for the Personal Education Savings Account program for those students with disabilities impacted by COVID-19. The Personal Education Savings Account program, enacted in 2017 is the state’s third school choice program. It serves students with special needs and can be used in conjunction with the state’s other two voucher programs.

Oklahoma

The Oklahoma Senate Education Committee and Senate Appropriations Committee both passed SB 222, a bill that would create a new voucher for students who have been the victims of bullying or abuse. The bill is pending before the full Oklahoma Senate.

Oregon

Lawmakers introduced SB 788 in the Oregon Senate. The bill would create an income tax credit worth up to $1,000 for homeschool expenses, backdated to the 2020 tax year and running until 2026. The credit would be limited for families earning less than $120,000 ($75,000 for single tax filers).

South Carolina 

H 3976 was introduced and referred to the Committee on Ways and Means on Feb. 24. The bill, if passed, would create the state’s first education savings account program. To be eligible for the program, students would need to reside in the state, be 5 years of age on or before September first of the school year, and have an annual adjusted gross family income of 200 percent or less of the federal poverty guideline. Students that participated in South Carolina Early Reading Development in Education program, or students who previously received an Educational Credit for Exceptional Needs Children scholarship would also be eligible. The program would be limited to 5,000 students in grades K–3 in year one, with expansion each year in the cap on the numbers of students participating and the eligible grade levels. The value of the scholarship would be equivalent to the state average of state funding per-pupil in public schools for the current fiscal year as determined by the Revenue and Fiscal Affairs Office.

Tennessee

SB 936 and HB 1559 were introduced on Feb. 10. If passed they would eliminate the Tennessee Education Savings Account Pilot Program. This program, enacted in 2019, was the state’s first voucher and second private school choice program. The state-funded voucher is available to students from low- and middle-income households in Memphis and Nashville who are switching out of a public district or charter school or are eligible for the first time to enroll in a Tennessee school. The program was immediately sued and is in pending litigation, and therefore has not been operationalized to date.

HB 837 and SB 1252 were filed on Feb. 9. If passed, this bill would create the Opportunity Scholarships Program which would provide students in grade K–12 attending a school in a Local Education Agency, or LEA, designated by the department as a Tennessee rapid growth school district to attend a participating private school of choice. This voucher style program would provide the a scholarship to eligible students of either the cost of tuition and fees charged by the participating school or the amount representing the per-pupil state and local funds generated and required through the basic education program for the Tennessee rapid growth school district. HB 837 was assigned to the Education Instruction Subcommittee on Feb. 20. SB 1252 passed on second consideration and was referred to Senate Education Committee on Feb. 22.

West Virginia

HB 2013 was introduced on Feb. 10. If passed it would create the state’s first school choice program in the form of an education savings account. The bill, if passed, would create an education savings account valued at around $4,600. All children enrolled in public school grades 1–12 would be eligible, and all children eligible to enter kindergarten would be able to participate in the program. An amendment was adopted that would increase eligibility to all children in West Virginia beginning in 2026. The bill is currently before the House Finance Committee after passing the House but being recommitted to House Finance.

Wyoming

Legislators in Wyoming introduced HB 106, a bill that would allow families to be reimbursed by the state for some of their educational expenses, including private school tuition and fees, tutoring, curricular materials and some supplemental materials and activities. The bill is currently pending before the House Education Committee.

LITIGATON

Maine

On Feb. 4, Michael Bindas of the Institute for Justice filed a petition for writ of certiorari with the U.S. Supreme Court in Carson v. Makin, a case that originated out of Maine. The EdChoice Legal Defense & Education Center will file an amicus brief in support of this case on March 11.

This case was brought by parents in Maine who wish to choose a religious school for their children’s education under Maine’s town tuitioning program. Parents were permitted to choose religious schools through town tuitioning from the beginning of the program in 1873 until 1980, when an attorney general suggested that including religious schools may be contrary to the U.S. Constitution (Maine has no Blaine Amendment), and legislators changed the law to exclude religious schools. The Court distinguished the U.S. Supreme Court ruling earlier this year in Espinoza vs Montana Dept of Revenue. The First Circuit said that while Espinoza prohibits states from blocking religious schools as parent choices because those schools are religious, Maine does not block religious schools based on their status as religious schools, but rather, on whether the private schools will use tuition funding received from parents for religious purposes.

Carson v. Makin, Case No. 20-1088, US Supreme Court  @eM3scKtMf7QzXkL#

Maryland

On Jan. 28, the U.S. District Court in the District of Maryland granted the parties’ joint motion to extend deadlines for discovery and filing pretrial motions, again. The new deadline to gather documents to be used in court at trial is May 7, 2021; the new deadline to file pretrial motions is June 25, 2021. The court warned that no further extensions of time will be granted.

Bethel Ministries, Inc v. Salmon, Case 1:19-cv-01853-SAG.

Tennessee

On Feb. 4, the Tennessee Supreme Court accepted the state’s appeal of The Metropolitan Government of Nashville and Davidson County et. al. vs. Tennessee Department of Education et. al. The State seeks to overturn the Court of Appeals ruling that the Tennessee ESA Pilot program is local in effect, applicable only to Davidson and Shelby Counties in their governmental capacities, and as such, is unconstitutional under the Tennessee Constitution Article XI, Section 9, Home Rule provision, which protects local control over local legislation. The EdChoice Legal Defense & Education Center will file an amicus brief in support of this case, together with ExcelinEd, on March 8, 2021.

On Feb. 22, the Tennessee Supreme Court denied intervening parents’ motion to lift a lower court’s permanent injunction barring implementation of the Tennessee ESA Pilot program. The injunction will remain in effect until after a final ruling in the case by the Tennessee Supreme Court.