BRIEF: School Choice in the States – May 2021

LEGISLATION

Arizona

The Arizona House Rules Committee voted to advance SB 1452, a bill that would 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.

Florida

Gov. Ron DeSantis signed HB 7045, a bill that expands the state’s voucher, tax-credit scholarship and ESA policies. The bill raises the income thresholds on the state’s tax-credit scholarship and school voucher policies for low- and middle-income students to 375 percent of the federal poverty line, with priority given to lower-income families. It also merges the state’s two educational choice policies for students with special needs—the McKay voucher and the Gardiner Education Savings Account—into a new ESA policy that is a part of the state’s Family Empowerment Scholarship (FES) policy. Eligibility for the also expanded to include students who are dependents of a member of the U.S. Armed Forces and adopted children, and the scholarship values were increased to 100 percent of the state’s per-student allocation for public education. The bill also eliminates the “prior public” attendance requirement for students from families with limited means.

Georgia

Gov. Brian Kemp signed SB 47, a bill that expands eligibility for the state’s voucher for students with special needs and expands the eligible categories of expenditures beyond private school tuition to include tutoring, uniforms, transportation, meals, summer school programs, and physical, speech and occupational therapy. 

Illinois

A bipartisan coalition of 46 Illinois legislators filed HB 4076, a bill that would remove the “sunset clause” from the state’s Invest in Kids tax-credit scholarship policy, which is otherwise set to expire next year. If passed, the scholarship policy would be made permanent. 

Iowa

This month, lawmakers in both chambers approved HF 847, which contains expansions to the School Tuition Organization (STO) Tax Credit and Individual Tuition and Textbook Tax Credit programs. Iowa Gov. Kim Reynolds signed the legislation into law the same day. The STO expansion includes a cap increase from $15 million to $20 million on January 1, 2022 while increasing the tax credit for donors from 65 percent to 75 percent. Additionally, the individual Tuition and Textbook Tax Credit program will see the credit increase from 25 percent of the first $1,000 spent to 25 percent of the first $2,000 spent. This means the credit will increase to a maximum of $500 per student.

Kansas

Gov. Laura Kelly signed HB 2134, a bill that expands eligibility for the state’s tax-credit scholarship policy to include students in grades K-8 from low-income families without any restrictions based on the school to which they are assigned (previously, students had to be assigned to one of the 100 lowest-performing schools in the state). The income eligibility threshold was also raised to 185 percent of the federal poverty line.

Louisiana

By a nearly unanimous (96-1) vote, the Louisiana legislature passed HB 556, a bill that would create an education savings account policy for students who are switching out of a public school or entering kindergarten who are the children of an active-duty member of the U.S. military, had been adopted through the state’s foster care system, or whose parent or guardian had applied for an inter-district public school transfer and had been denied. The bill is currently under consideration by the Louisiana Senate Education Committee.

Maryland

Gov. Larry Hogan signed Maryland’s budget bill, HB 588, which fully funds Maryland’s BOOST voucher program at $10 million. Previously, only $6.5 million had been allocated.

Missouri 

HB 349 has passed both the House and Senate and awaits signature by the governor. If enacted into law, this legislation would establish the Missouri Empowerment Scholarship Account program. This program would create tax credit-funded education savings accounts for eligible students in Missouri. 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. Low-income students are also prioritized when administering accounts. Additionally, a student must live in either a charter county or a city with more than 30,000 inhabitants to qualify. 

SB 86, has also passed both chambers and awaits the governor’s signature. SB 86 contains Missouri Empowerment Scholarship Accounts as detailed in HB 349. However, SB 86 only allows for a $25 million dollar contribution cap.

Montana

Gov. Greg Gianforte signed HB 279, a bill that makes 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.

Nevada

The Nevada legislature passed AB 495, a budget bill that expands the state’s Educational Choice Scholarship program by increasing the amount of tax credits available by nearly $5 million. The bill also makes important technical fixes that will allow scholarship-granting organizations to serve new children. The bill is now awaiting the governor’s signature.

New Hampshire

The content of SB 130, a bill for the establishment of Education Freedom Accounts (EFAs) program was amended into the state budget via a 5-2 vote by the Senate Finance Committee. This proposal, now included in HB 2, allows for families with a household income below 300 percent of the federal poverty level to be eligible for an Education Freedom Account. EFAs 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.

Oklahoma 

Gov. Kevin Stitt signed SB 1080, a bill that expands the state’s tax-credit scholarship policy by raising the total amount of tax credits from $3.5 million to $25 million.

LITIGATION

MAINE

Carson v. Makin

The U.S. Supreme Court is currently considering whether to grant the request of Maine parents, represented by the Institute for Justice, to accept their case against Maine’s law that forbids parents from using town tuitioning funding, a form of vouchers, to access private religious schools—unless those religious schools drop any semblance of religion and operate as secular schools. On May 21, 2021, the state of Maine filed its response in this case. Hopefully, the Court will consider this case during one of the remaining conference days scheduled in June. 

Decision pending. Carson v. Makin, Case No. 20-1088, U.S. Supreme Court (2020).

NEVADA

Legislature of the State of Nevada v. Settelmeyer

On May 3, 2021, the Nevada Supreme Court heard oral arguments in Legislature of the State of Nevada v. Settelmeyer. This case disputes the enactment of legislation that extended a particular business tax and repealed Nevada’s education savings account program (a program that was found constitutional but lacked a proper funding mechanism; thus, it has remained law but has not yet been funded). The bill was passed with a simple majority vote, but opponents argued a two-thirds vote was required by the state constitution.

On May 13, 2021, the Nevada Supreme Court affirmed that the legislature was constitutionally required to pass the legislation repealing the business tax with a two-thirds vote. Sadly, the court severed parts of the bill that were not tax-related (and could have been passed separately with a simple majority vote), and as a result, repeal of Nevada’s once “best in the nation” education savings account was upheld. 

Decision final. Legislature of the State of Nevada v. Settelmeyer, 137 Nev. Adv. Opn. No. 21, Case Number 81924, Nevada Supreme Court (2020).

Flor Morency v. Nevada Dept of Ed

In this case, parents represented by the Institute for Justice sued the state for repealing the escalator clause in the state’s tax-credit scholarship program, which will significantly hamper scholarship funding. The main issue in the case is whether the legislature was constitutionally required to pass the legislation with a two-thirds vote (it did not) or a simple majority, similar to the arguments presented to the court in the Settlelmeyer case (see above).

On May 14, attorneys for Flor Morency filed supplemental authorities, directing the court’s attention to those elements of the Settelmeyer decision that support Morency’s arguments. On May 18, attorneys for the legislature filed their response and on May 19, attorneys for the executive branch filed their response.

Decision pending. Flor Morency v. Nevada Dept of Ed, Case number 81281, Nevada Supreme Court (2020).