EdChoice and Institute for Justice Launch Partnership to Represent Parents in Court

In just two years, the number of states with universal private school choice programs has grown from zero to 10, and the number of students eligible for such programs has increased by 60 percent. Today, approximately 20 million students nationwide may participate in a choice program of their family’s choosing.

Despite these victories, tremendous battles lie ahead as opponents of choice use any means necessary to preserve the public-school monopoly. Each new state affording students educational freedom is another target for opponents in court.

To safeguard choice programs for families, EdChoice is engaging in the litigation battle directly, creating EdChoice Legal Advocates (EdLA) to house these new efforts. EdLA will partner with the Institute for Justice to represent families and their right to educational choice in court, eventually fully assuming education litigation duties from IJ.

“To realize Milton and Rose Friedman’s vision of universal choice, we must not merely create educational freedom programs, but also ensure they withstand legal challenge in state courts,” said EdChoice President and CEO Robert Enlow. “Just as we anticipate a need to help implement school choice, we also anticipate an increased need to represent parents and defend these statutes across the country. By partnering with IJ and launching EdChoice Legal Advocates, we will safeguard the Friedmans’ legacy and preserve choice programs for families.”

When IJ opened its doors in 1991, it set out to resolve two major constitutional questions concerning educational choice: Is choice permissible under the federal Constitution? And, if so, can Blaine Amendments be used to deny choice? IJ has secured a body of Supreme Court precedent that resolves both questions decidedly in favor of choice, accomplishing what it set out to do.

“IJ and EdChoice have worked together for decades to pass, promote and defend educational choice programs and we are excited about our new partnership to ensure vigorous defense of state programs throughout the country,” said IJ President and Chief Counsel Scott Bullock. “IJ has accomplished what it set out to do three decades ago: establish the constitutionality of educational choice programs and, in turn, make it possible for millions of families across the country to benefit from the opportunity that those programs provide. As we gradually hand the baton of defending choice programs to our friends at EdChoice, IJ will turn its attention to new work in the education freedom movement: tackling government-imposed barriers that stifle education entrepreneurship and parental freedom.”

In recent years, the battle over school choice has increasingly moved from federal to state courts, with more lawsuits focused on state constitutional and statutory claims.

While many such claims invoke state-specific laws, the central legal defense of school choice remains the same: Legislatures may empower parents to decide how to spend their children’s education funds.

For 27 years, EdChoice has educated key stakeholders and influencers about the methods and merits of empowering parents to choose any educational option for their children. Its national reputation as a leader in advancing educational freedom in the states, combined with its strong nationwide partnerships, make EdChoice a natural fit for this work.

EdChoice has hired Thomas M. Fisher, longtime solicitor general of Indiana, to lead EdLA. Fisher, one of the top appellate litigators in the country, has argued five times at the Supreme Court of the United States and has developed a wealth of experience in federal and state courts. He represented the State of Indiana in its successful defense of the Choice Scholarship Program in the seminal state constitutional case Meredith v. Pence, which resulted in a unanimous opinion upholding vouchers in Indiana.

“The power and promise of educational freedom for all families has been important to me for many decades,” Fisher said. “One of my proudest moments as a lawyer was arguing in the Indiana Supreme Court in defense of our choice scholarship law, so when EdChoice asked me to advance the legal defense of educational choice in other states, I was eager to take on the mission.”

Over the course of this four-year partnership, IJ will transition its defense of school choice programs to EdChoice’s new litigation arm, EdChoice Legal Advocates (EdLA). During the first two years, EdLA and IJ lawyers will appear as co-counsel in defending against court challenges to educational choice programs. They will also work together to review proposed state legislation bearing on educational choice for constitutional and other legal compliance. In the second two years, IJ will wind down its involvement on both fronts as EdChoice assumes full responsibility for bill review and legal defense while consulting with IJ lawyers as necessary.

The EdChoice Legal Defense & Education Center, led by EdChoice Vice President of Legal Affairs and Director of LDEC Leslie Hiner, will continue to educate and advise policymakers, parents, and others about what makes for a constitutional educational choice law, so that new legislation is defensible in court.

Educational freedom does not favor one ideology over another. It gives parents, no matter their beliefs or circumstances, the ability to choose the best education for their children. IJ and EdChoice, having collaborated for decades, continue to build and defend a robust education marketplace meeting the diverse needs of families.

For more information on this joint project, including summaries of existing educational choice cases, visit: foredchoice.org.