BRIEF: School Choice in the States – August 2020

LEGISLATION

Virginia

Virginia lawmakers have filed three bills to expand educational choice during the pandemic or similar health crises:

• SB 5020 would require any district school operating on a “reduced schedule” to deposit any “unused funds” (i.e., savings from being closed down) into specially established education savings accounts for each student. The ESAs could be used for tuition, tutoring, curriculum and related materials, educational therapies, transportation, and more.

• HB 5056 would permit local school boards to create education savings accounts for students during a “public health emergency” during which district schools are closed for at least one week. The ESAs could be used for tuition, tutoring, curriculum and related materials, educational therapies, transportation, and more.

• HB 5129 would create a “refundable” income tax credit for pandemic-related education expenses. The credit would be worth 50 percent of expenses up to a maximum of $4,500.

LITIGATION

Maryland

On August 10, the U.S. District Court in the District of Maryland granted the State’s request to compel Bethel Christian Academy “to produce documentation relating to its decision not to admit any applicant, for a reason other than failure to pass the admissions examination.” The court also denied the State’s request to compel Bethel Christian Academy to identify “all people who expressed interest who ultimately did not enroll” at the school. Discovery in the case will continue into mid-October 2020. Bethel Ministries, Inc v. Salmon, Case 1:19-cv-01853-SAG.

Nevada

On July 31, the Nevada Supreme Court granted a Writ of Mandamus, ordering the lower courts to accept attorneys at the Legislative Council Bureau as counsel for Democratic legislative leaders only in Settelmeyer vs Cannizaro Case No. 190C-00127-1B-II, a case brought by Republican legislators charging that the state constitution required a two-thirds vote for legislation enacted last session that repealed the state’s best-in-the-country education savings account program. The bill, which included extension of a major business tax, was passed with a simple majority vote. The case will now proceed to the lower court for litigation on the merits.

North Carolina

1. On September 1, plaintiffs and defendants reached agreement for increased education funding of $427 million for one year, as part of the years-long adequacy funding litigation commonly known as “Leandro”, whose actual current case name is Hoke County Bd of Ed v. State, County of Wake General Court of Justice, case no. 95-CVS-1158. A compliance report is scheduled to be issued December 15, 2020 detailing progress in following this agreement confirmed by the court.

2. On July 27, the North Carolina Association of Educators and others filed a lawsuit, Kelly v. State, County of Wake General Court of Justice, Case No. 20 CVS 8346, challenging North Carolina’s Opportunity Scholarship voucher, on an “as applied” basis. It is alleged that the program has no standards or accountability, discriminates based on religion, discriminates based on sexual orientation, gender identity and transgender status, and needs not provide any secular education notwithstanding the program’s receipt of millions of tax dollars.

This same voucher program was previously litigated in Hart v. State, 767 S.E.2d 55 (2015). In that case, the court found the voucher program did not violate any constitutional provision, and furthermore stated, “To the extent that plaintiffs disagree with the General Assembly’s educational policy decision as expressed in the Opportunity Scholarship Program, their remedy is with the legislature, not the courts.” Perhaps those bringing the current litigation should revisit those words from the North Carolina Supreme Court.

South Carolina

On August 28, EdChoice filed an amicus brief at the South Carolina Supreme Court in support of Gov. McMaster and the SAFE Grants program, in Adams v. McMaster, Appellate Case No. 2020-001069. SAFE Grants program will provide scholarships to help children in low to middle income families access private education and to help children currently in private schools to be able to afford to remain in those schools. SAFE Grants are funded through a federal CARES Act grant to Gov. McMaster (and other governors under the Governor’s Emergency Education Relief (GEER) Fund), who has set-aside up to $32 million for these scholarships. No existing state or local education funds will be used. Plaintiffs allege that the governor has no constitutional authority for this action, or to distribute funds to be used at religious schools. Oral arguments will be heard by the South Carolina Supreme Court on September 18, 2020.

Tennessee

On August 5, the Tennessee Court of Appeals heard oral arguments in The Metropolitan Government of Nashville and Davidson County et. al. v. Tennessee Department of Education et. al., Case number M2020-00683-COA-R9-CV. This case pits the communities of Memphis and Metro Nashville against the state and its recently enacted voucher, the Tennessee ESA Pilot program. Memphis and Metro Nashville allege that the legislature violated Tennessee Constitution’s Home Rule clause, which prohibits the legislature from targeting “a particular county” with specific legislation. EdChoice filed an amicus brief in support of the ESA Pilot, and ExcelinEd joined this brief. Decision pending.

U.S. Department of Education

When the U.S. Dept of Education adopted an interim rule requiring distribution of federal CARES Act funding to include private schools, the Department was sued by several states, municipalities, and the NAACP in three separate lawsuits to block the interim rule. The interim rule in question is, “CARES Act Programs; Equitable Services to Students and Teachers in Non-Public Schools, 85 Fed. Reg. 39,479 (codified at 34 C.F.R. § 76.665).” https://www.federalregister.gov/documents/2020/07/01/2020-14224/cares-act-programs-equitable-services-to-students-and-teachers-in-non-public-schools

The lawsuits allege that the Department had no legal authority to make such a rule for distributing CARES Act funds to private schools.

The first lawsuit was filed by Michigan plus California, Hawaii, Maine, Maryland, New Mexico, Pennsylvania, and Wisconsin; the District of Columbia; and the New York City Department of Education, Chicago Public Schools, the Cleveland Municipal School District Board of Education, and the San Francisco Unified School District on July 15 in the US District Court for the Northern District of California. Michigan v. DeVos, Case No. 20-cv-04717. In defense of Secretary DeVos, on July 29, the Wisconsin Institute for Law & Liberty (WILL) filed an amicus brief joined by EdChoice and 37 state and national groups.

The second lawsuit was filed by the State of Washington on July 20. State of Washington v. DeVos, U.S. District Court for the Western District of Washington at Seattle, Case No. 20-cv-1119-BJR. On August 6, WILL once again filed an amicus brief in defense of Secretary DeVos, joined by EdChoice and 37 state and national groups.

The third lawsuit was filed by the NAACP, Southern Poverty Law Center, Denver County School District, Pasadena Unified School District and Stamford Public Schools on July 22. NAACP v. DeVos, U.S. District Court for the District of Columbia, Case No. 20-cv-01996. On August 24, WILL once again filed an amicus brief in defense of Secretary DeVos, joined by EdChoice and 41 state and national groups.

On August 21, the court in State of Washington v. DeVos issued a preliminary injunction against Secretary DeVos, prohibiting enforcement of the Department’s interim rule.

On August 26, the court in Michigan v. DeVos issued a preliminary injunction against Secretary DeVos, prohibiting enforcement of the Department’s interim rule.

Appeals to the Ninth Circuit Court of Appeals is expected in State of Washington v. DeVos and Michigan v. DeVos.

A ruling in NAACP v. DeVos is pending.