BRIEF: School Choice in the States – January 2021
LEGISLATION
Federal
Lawmakers introduced HR 499, a bill seeking to amend the Elementary and Secondary Education Act to allow military dependent children to establish federally funded education savings accounts. The bill was referred to the House of Representatives Committee on Education and Labor.
The U.S. Senate saw early private school choice action as well. S. 43 would provide a federal tax credit for contributions to state-based scholarship-granting organizations providing for tax-credit scholarships. The bill was referred to the Senate Committee on Finance.
Lastly, congress members supporting the Washington D.C. Admissions Act (HR 51) have included in the latest bill introduced Jan. 4 a provision allowing for the continuation of the D.C. Opportunity Scholarship Program in the event that Washington would earn statehood as a federally recognized commonwealth.
Arizona
Arizona’s legislative session began with a flurry of activity, including several bills both to advance and to curtail educational choice. The bills to advance choice include:
• 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 1513 would expand eligibility for Arizona’s Empowerment Scholarship Account program to include children of military veterans, first responders, and health care workers.
• HB 2503 would expand eligibility for Arizona’s Empowerment Scholarship Account program to include students who had been the victims of bullying or abuse.
• SB 1401 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.
Other Arizona legislators filed a slew of bills that would curtail educational choice, including SB 1098, HB 2146, HB 2147, HB 2148, HB 2327, HB 2283, HB 2536, HB 2538, and HB 2566. Among other things, these bills would cut eligibility for educational choice programs, reduce their funding, and add restrictions on scholarship organizations that would make it harder for them to serve students. It appears that none of these bills will receive a committee hearing.
Florida
Legislators in Florida filed 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. By a vote of 6 to 4, the Florida Senate Education Committee passed SB 48.
Georgia
Legislators in Georgia filed 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.
Additionally, legislators filed HB 939, a bill that removes the sunset on the recent expansion of the state’s tax-credit scholarship policy.
Idaho
HB 62 would establish education savings accounts under the Empower Parents in Education Act. The average grant amount is estimated to be $4,200. Students would be eligible if they 1) qualify for the federal free and reduced-price lunch program, 2) need special education services under the Idaho Code, 3) are considered “at-risk” under the Idaho Code or 4) are English language learners as defined by the Idaho Code. All four eligibility criteria are part of a point system used to determine overall eligibility under the program. The next step for this piece of legislation is to be assigned and heard in committee.
Indiana
HB 1005 was introduced in January. The bill would expand the eligibility of the state school voucher program—the Choice Scholarship Program—and establishes a new education savings account program for children with special needs and children from military and foster care families. The bill will have a hearing in the Indiana House today. The Indiana Senate will also hear two bills today: SB 412 (an ESA bill for special needs families) and SB 413 (a various education matters bill, which includes charter language, voucher language and accountability).
Iowa
SF 159 was introduced on Jan. 25 and is a priority piece of legislation for Gov. Kim Reynolds. The bill would create private school scholarships for students zoned to low-ranked schools, increase charter schools, and reduce limitations to open enrollment. Specifically, it would create a new education savings account program, referred to as the Student First Scholarship Program, and would serve children in school districts designated for “comprehensive support” under the Every Student Succeeds Act (ESSA). As of this writing, SF 159 made it through the committee process and a Senate floor vote of 26-21. Next step will be the House Education Committee.
Kansas
Legislators in Kansas filed HB 2119, a bill that would create an education savings account for children from low-income families.
Additionally, legislators filed HB 2068 and SB 61, companion bills 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 Kansas House Education Committee heard testimony on the House version of bill and the full committee is expected to vote soon.
Kentucky
HB 149 and SB 25 were both introduced on Jan. 12. Both bills if enacted would establish tax credit-funded education savings accounts referred to as “Education Opportunity Accounts (EOAs).” EOAs can be used for tuition, tutoring, textbooks, curriculum and more. An eligible student would be a resident of Kentucky whose household income is not more than 200 percent of FRL, the free or reduced-price lunch program, or who is a member of a household with a student who is currently receiving an EOA. The next step for both pieces of legislation is to be heard in their respectively assigned committees.
Minnesota
Minnesota lawmakers introduced legislation that would affect the state’s two individual tax-based school choice programs. HF 153 would increase the amount of Minnesota’s Education Deduction by $1,000 for students in K–6 and $1,400 for high schoolers. Additionally, the bill would annually increase the deduction value by an inflation indicator, a measure the program is currently without. The bill was referred to the House Taxes Committee.
Additionally, two bills (HF 308 and SF 260) were introduced which seek to create the Equity and Opportunity in Education Tax Credit, a tax-credit scholarship program for students from households earning up to 200 percent of the free and reduced-price lunch level or who have special needs. Tax credits would be available for individual and corporate donors to scholarship foundations providing education transportation grants as well as private school scholarships.
Missouri
SB 55, and HB 349 have been introduced. If passed, both pieces of legislation could establish the Missouri Empowerment Scholarship Account program. This program would create a tax credit-funded education savings account program. Funded through charitable contributions, SB 55 is capped at $100 million in total contributions, while HB 349 introduces 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
Legislators in Montana filed 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.
Nebraska
Legislators in Nebraska filed LB 364, a bill that would create a tax-credit scholarship policy for children from low-income families. The bill is currently pending before the Revenue Committee.
New Hampshire
Introduced on Jan. 13, HB 20, 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. These uses include private school tuition, tutoring, textbooks, educational therapy, and more. The next step for HB 20 will be a hearing and vote in the House Education Committee.
North Carolina
HB 32 has been filed in North Carolina. If passed it would expand eligibility of the low-income voucher program, the Opportunity Scholarship, to include children entering kindergarten, first, and now second grade. The bill would also change the scholarship amount from a maximum 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 Savings 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.
North Dakota
Legislators in North Dakota filed two bills to advance educational choice. HB 1369 is a bill that would create an Education Empowerment Account from which families of students enrolled in private schools could apply to cover tuition and other educational expenses. The bill is currently pending before the House Education Committee.
Additionally, the House Finance Committee passed HB 1281, a bill that would create a $500 personal-use tax credit for families whose children are enrolled in a private school. The bill is pending before the full North Dakota Senate.
Oklahoma
Oklahoma legislators filed several bills to advance educational choice, including:
• HB 1851, a bill that would create a tax-credit scholarship policy for children assigned to low-performing schools.
• HB 1982 a bill that would expand the availability of tax credits for donations to scholarship organizations that aid students from low- and middle-income families. The bill is pending before the Appropriations and Budget Finance – Revenue and Taxation Subcommittee.
• 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 Senate Education Committee.
Additionally, legislators filed HB 1846, a bill that would restrict the eligibility for the state’s tax-credit scholarship policy.
Oregon
In the Oregon Senate, lawmakers introduced two education savings account (ESA) bills. SB 693, establishing the Oregon Empowerment Scholarship Program, would allow for public school students with special needs, from low-income families, or who are wards of the state to receive their state per-pupil education funding to be used for a variety of services, including private school tuition. SB 658 would provide for a similar wide-ranging ESA for all Oregon K–12 students. In the Oregon House, HB 2711 would establish a universal voucher program for students to use at private schools. Its companion bill is SB 516, which restricts eligibility to students currently enrolled in low-performing schools.
Utah
Legislators in Utah filed SB 107, a bill that would create a new voucher for students whose assigned schools are closed for in-person learning. An amended version of the bill passed the Senate Education Committee and the full Utah Senate.
Virginia
Legislators in Virginia filed two bills to advance educational choice. HB 2225 was a bill that would have create an education savings account policy for students with special needs and the children of active-duty military personnel. The House Subcommittee for Pre-K-12 Education recommended laying the bill on the table. SB 1433 is a bill that would create a new voucher for students whose assigned schools are closed for in-person learning. The bill is currently pending before the Senate Education Committee.
Washington
The Washington Senate saw the introduction of its first school choice bill of the 2021 session. SB 5200 would establish a tax-credit scholarship program for students with special needs as well as those in foster care. The bill is currently pending before the Senate Education Committee.
LITIGATION
Maryland
On Jan. 28, the U.S. District Court for the District of Maryland, Northern Division, granted the litigants’ request for an extension of time to complete discovery. Discovery and requests for admission are due by May 7, 2021, and all pretrial motions must be filed by June 25, 2021—which is two years exactly since the date this litigation began.
Bethel Ministries, Inc v. Salmon, Case 1:19-cv-01853-SAG.
Nevada (2 cases)
Case 1. On Jan. 21, the Nevada Supreme Court scheduled oral arguments for March 1, 2021, in the Nevada case challenging the state’s repeal of the escalator clause for their tax-credit scholarship program, which threatens the future of this program. Oral arguments will be by videoconference or teleconference, if necessary.
Flor Morency vs. State of Nevada Dept of Education, Nevada Supreme Court, Case No. 81281.
Case 2. On Jan. 6, Republican Senators filed a response to the state’s motion to dismiss their case challenging enactment of a bill that repealed the state’s Education Savings Account program, along with other actions related to taxes. On Jan. 14, 21 and 22, the Nevada Supreme Court granted extensions of time to file a response, to the state legislature, the state of Nevada, and the Nevada departments of motor vehicles and tax, respectively. Their briefs will be due Jan. 27 and Feb. 4.
Settelmeyer v State of Nevada, Case No. 19-OC-00127-1B
Vermont (2 cases)
Case 1. On Jan. 22, the U.S. Court of Appeals for the Second Circuit granted an emergency injunction in favor of parents. A.H., a minor child, sued the state of Vermont for refusing to provide town tuitioning (a form of voucher) for A.H. to attend a religious private school. The Court said there is a high likelihood that A.H. will prevail in his case, and thus granted an emergency injunction against the state, ordering the state to stop excluding A.H. from the town tuitioning program solely because the school A.H. chose to attend is a religious school. This is a “Post-Espinoza” case, seeking to enforce the U.S. Supreme Court’s ruling last summer in Espinoza v. Montana Dept of Revenue, 591 U.S. __ , 140 S.Ct. 2246 (2020), which affirmed that parents cannot be denied the opportunity to choose any school, religious or secular, in school choice programs.
On Jan. 29, A.H. filed an appeal requesting that the preliminary injunction, narrowly tailored under the law, be reviewed, particularly with respect to the state’s initial refusal to follow the court’s order based on state constitutional issues related to religious use of the voucher, which is different from excluding a child from the town tuitioning program based on the religious status of the child’s chosen school. Pending before the US Court of Appeals for the Second Circuit.
A.H. v. French, 2nd Circuit Ct of Appeals, Case 21-87.
Case 2. On Dec. 21, 2020, Deborah Bucknam of Vermont and the Liberty Justice Center filed litigation in Vermont Superior Court, Orleans Division at Newport, Vermont, alleging that Vermont’s town tuitioning program violates the state constitutional requirement that all children be afforded equal educational opportunity. Children in towns without schools may receive tuition to attend secular private schools, but children in other towns may only receive tuition to attend public schools. This unequal treatment on its face creates a discriminatory system based on the fortuity of a child’s residence. Plaintiff parents are asking the court to hold that town tuitioning must allow any child to receive tuition to attend public or private schools, including religious schools; that the constitutionally recognized common benefit of town tuitioning must be available to all children. Pending. Vitale v. State, Vermont Superior Court Orleans Division, Docket 215-12-200SCV.
