Legally Speaking: Protecting School Choice from Litigation
It’s no secret that legal action is one of the biggest threats to school choice programs. In addition to constant pushback during the legislative process, our opponents will stop at nothing to prevent new programs from becoming operational even after they’ve become law, preventing families from being able to access what in many instances is a lifeline out of schools that don’t meet their needs.
That’s why we established the EdChoice Legal Defense and Education Center (LDEC) in 2018. We recently added a second staff member to the LDEC team, and we wanted you to have an opportunity to learn a little bit more about the lawyers who work tirelessly to educate policymakers about the legality of school choice and protect programs from legal challenges.
We thought the best way to introduce our team to you would be a Q&A format where you can learn not just about their legal backgrounds, but also their passion for the issue and how they got involved in educational choice in the first place. Turn the page to meet the lawyers of LDEC!
MEET THE LDEC TEAM
Lauren Hodge
Tell us a little bit about yourself and how you came to work for EdChoice and LDEC.
I have always been drawn to the connection between law and advocacy. LDEC is unlike any other group in this space providing legal solutions, amicus brief support, and enabling advocates with actionable solutions. It is an exciting and fast paced job that asks different legal questions every day. I love that I get to work across the nation with state and federal law. Prior to joining LDEC, I worked for EdChoice on the state team. This has provided a unique viewpoint into the necessity of legal work. I understand what states are struggling with, the solutions they are seeking, and how to empower local partners to seek solutions that serve children and families across the nation. I joined EdChoice with a litigation background. LDEC enables me to work at the juncture of law and advocacy where solutions can meaningfully impact lives.
What’s your favorite part of your job?
I love the variety of law we get to work within. No two days are ever the same—you can be researching a state constitution one day and then be in the regulations and rulemaking process the next. It is exceptionally fulfilling to always be learning and providing advice and solutions.
What do you see as the biggest legal threat to school choice?
Division. Espinoza provided a landmark victory empowering states that choose to adopt school choice programs. While this victory has empowered states across the nation, that means new and novel arguments are being made. The school choice movement will need to remain unified and consistent as we answer these new arguments. United we stand. Divided we fall.
What do you wish more people knew about the intersection of school choice and law?
It’s not just Constitutional law! While that is certainly a large cornerstone of school choice, rules, regulations, state law, and education finance reform all play pivotal roles and cannot be overlooked! Like a puzzle, school choice and the law must connect many pieces to create a complete picture.
If you could give one piece of advice to families out there, what would it be?
Keep going! We would not be here without the bravery of families demanding and organizing for more options. Your action today will change the world tomorrow!
Leslie Hiner
Tell us a little bit about yourself and how you came to work for EdChoice and LDEC.
When now-CEO Robert Enlow asked me to work for the Friedman Foundation for Educational Choice (now EdChoice) in 2008, it was easy to accept his offer; I had been an advocate of school choice, personally and professionally, since the mid-1980s. Although it was bittersweet to leave my position as chief of staff to the Speaker of the Indiana House of Representatives, work that I loved, it seemed like I had been preparing my entire adult life to work at EdChoice.
I became a school choice advocate when, as a young lawyer, a new client asked me to represent her in a post-divorce hearing. Her ex-husband insisted that government (public school boards that draw school district boundary lines) should decide where their daughter would go to school; the mother, my client, said no way. She refused to remove their daughter from the private school operated by their church, where their daughter had been receiving a great education.
We won the case after a five day trial focused on one question: who is the proper person or entity to decide where and how a child should be educated. Answer: the parent.
The school my client’s daughter would have attended was troubled by violence; had my client’s daughter been forced to leave a safe school where she was deeply valued, and where people spoke the language of her faith, she would have suffered greatly in a violence-prone school where the lessons and language of faith were non-existent. This experience was transformational for me.
What’s your favorite part of your job?
My priority is to help all children receive a funded option to access any school or educational resource that will allow them to experience the joy of learning, to thrive. This can only happen when adults recognize their responsibility to future generations to make educational opportunities available. Forming meaningful relationships with people around the world who share this priority is by far the most enriching part of my work. Meeting children whose lives changed from failure and despair to success and joy as a result of finding, and being able to access, a school that fits them is unbelievably fulfilling.
When people ask me why I left a job I loved to work at EdChoice, my answer is simple: I cannot turn my back on children who so desperately need and deserve a chance to live successful and happy adult lives. I’ve met children who lived in crack houses, never scored higher than a “D” in elementary school, who were bullied, dirty, and kicked out of school for being “bad” on a regular basis. At a tender age, these children believed that they were complete failures and “bad.” Heartbreaking. When those same children received scholarships to attend small private schools of faith where their lives were valued as children of God, these children learned that they were not “bad”; they had the capacity to learn. When they told me how lucky they were to find out that they could learn, that they wouldn’t be compelled to sell crack like the adults in their lives, their pure joy warmed my heart. These children ordered my steps—to remove government barriers to education so that all children can find their joy.
What do you see as the biggest legal threat to school choice?
Religious animus. This scourge has plagued our country since its first days. School choice is constitutional and denying a parent the right to choose a religiously affiliated school violates the Free Exercise Clause of the First Amendment; the U.S. Supreme Court has been more than clear on this point. Notwithstanding the clarity of the Court’s decisions, opponents continue to challenge school choice because parents might choose religious schools and children may be “exposed” to religion in those schools—as if saying a prayer before lunch might obstruct a child’s ability to learn math. This is wrong.
In Zelman v. Simmons-Harris (2002), the U.S. Supreme court held that, at that point when a family is given control over their child’s K-12 education funding, the state is no longer involved. The parent’s subsequent choice of a private school, whether religiously affiliated or secular, is attributable to the parent, not the state. Zelman affirmed that vouchers do not fund private schools of any type; they fund a child’s education.
The Court in Espinoza v. Montana Dept. of Revenue (2020) upheld Zelman and opined that provisions in state constitutions blocking a parent from choosing a religiously affiliated private school in a school choice program run afoul of the federal constitution’s First Amendment. The Court’s ruling was crystal clear—in school choice programs, it is a violation of the Free Exercise Clause to deny a parent the option to choose a religiously affiliated private school. Notwithstanding popular animus against religion, the right of each of us to freely exercise our religious faith has been upheld in school choice programs.
What do you wish more people knew about the intersection of school choice and law?
School choice is constitutional. State statutes, plus State Supreme Court and U.S. Supreme Court decisions are crystal clear about school choice, particularly concerning how vouchers are funded.
States fund each child’s elementary and secondary education. Funding is only provided for a child who attends a government operated school unless the state has adopted a school choice program. When that happens, the state continues to fund the child’s education and agrees that a child’s parent can choose whether the child should use that funding to attend a government or privately operated school, or be educated with a variety of public and private educational resources. Funding from the state is a direct benefit to the child, regardless where the child receives academic instruction leading to graduation that is required by the state. The state funds a child’s education. The state does NOT fund privately operated schools or any other education provider.
When a parent is given control of a child’s education funds from the state, the lawful link between the state and that money is broken—whatever educational option is chosen by the parent is a true, independent choice of the parent; the state does not participate in that decision except to make sure that education providers/schools meet normal state standards for being an education provider.
If you could give one piece of advice to families out there, what would it be?
Keep an open mind. Ask a lot of questions and expect/demand truthful and complete answers about how your child is being educated. Have the courage to demand excellence for your child’s education. Make it your business to know what your child is learning and experiencing at school.
Your child belongs to you. The authority to educate your child rests with you; a school has authority to provide education but never forget that a school has that authority only because you, as parent, have given that authority to the school—whether by living in or moving into a particular school district or by choosing a particular publicly or privately operated school. Never let anyone tell you that your child’s education is best left to the “experts”; even if your child has a teacher that you love and trust, find out exactly what happens in your child’s classroom—what your child is taught, how your child is treated, what is expected of your child.
In 1925, the U.S. Supreme Court affirmed the authority of parents over their children’s education in Pierce v. Society of Sisters, 268 U.S.510 (1925):
“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
I agree!
ABOUT THE LEGAL DEFENSE AND EDUCATION CENTER
Formally established in 2018, the Legal Defense and Training Center (LDEC) built on EdChoice’s
history of providing legal expertise to policymakers, media outlets and the legal community. LDEC
works in partnership with state and national allies to identify and remove legal barriers to universal
school choice and provide ongoing legal assistance to the school choice movement.
LDEC services include:
- Legal Reviews: Provide legal review and guidance regarding bill drafts and constitutional questions at the state and federal level; address and clarify tax issues that affect school choice programs.
- Legal Assistance: Work alongside other pro-school choice organizations to file amicus briefs and provide research and messaging advice.
- Legal Education: Speak at legal events across the country as well as to lay audiences about the importance and constitutionality of school choice.
Your support for LDEC’s work allows us to have continued success in courts across the nation, including landmark cases at the Supreme Court, like our victory last year in Espinoza v. Montana. This ruling means that clauses in state constitutions that prohibit direct or indirect aid to religious or sectarian schools or institutions conflict with the Free Exercise Clause of the U.S. Constitution. In other words, school choice programs cannot exclude religious schools. Our work to defend school choice programs is vital to our mission of school choice for all students and is made possible only with the help of our donors and partners.
