School Choice Advocates Rack Up Major Victories In 2022, With One Setback

Teachers union bosses often got their way during the pandemic when they were able to prevent in-person schooling in many jurisdictions well into 2021, long after vaccines were made widely available. Though it appears, based on developments so far this year, the backlash from both parents and lawmakers who demand more education options is now on.

Advocates for expanded school choice, whose ranks have grown with parents who became politically engaged in response to public schools’ refusal to offer in-person schooling, are now the ones on a winning streak. In fact, the first half of 2022 produced numerous legislative, judicial, and electoral losses for teachers unions and their allies.

Blow To Blaine In Amendment Namesake’s Home State Of Maine

Among the most significant victories for school choice proponents this year came on June 21, when the U.S. Supreme Court ruled that Maine’s education voucher program cannot exclude religious schools as had been the case under state law. That 6-3 decision in Carson v. Makin overturned Maine’s prohibition on the use of state education vouchers, which had been in place since 1982, to pay for tuition at religious private schools.

“Tis an important victory for the constitutional principle that government may not discriminate on the basis of religion,” Ilya Somin, a professor of law at George Mason University, wrote about the Carson v. Makin decision. “It may also help open up valuable opportunities for parents and students, particularly the disadvantaged.”

The decision in Carson v. Makin, coupled with previous court rulings, are contributing to the gradual death of state Blaine amendments, which prohibit state funds from being directed toward religious schools. In the 2020 Espinoza v. Montana Department of Revenue decision, the Supreme Court ruled 5-4 that a state education voucher program cannot exclude religious private schools because they’re affiliated with a religion.

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A June 21 SC SC OTUSblog post on the Carson v. Makin ruling called the decision “the latest in a series of cases in recent years in which the court has sided with parents and religious institutions challenging state policies that barred them from receiving education-related funds that were available for secular, but not religious, recipients.”

The Carson v. Makin ruling is the most recent legal blow to state Blaine amendments. Despite being represented in Congress for 18 years by James G. Blaine, the namesake for the aforementioned amendments, Maine does not have a Blaine Amendment on the books. The overturned Maine law preventing voucher funds from going to religious schools was statutory. With its decision in Carson v. Makin, however, the U.S. Supreme Court “takes a step towards eliminating Blaine Amendments,” wrote Joshua Dunn, a professor of political science at the University of Colorado–Colorado Springs.

While critics of the Carson v. Makin decision argue it inappropriately weakens the separation of church and state, proponents of the decision contend it is a victory for free speech, one that will provide the greatest benefit to children from households of limited means.

“In addition to vindicating an important constitutional principle, Carson v. Makin is a potential boon to poor and disadvantaged children,” Professor Somin adds. “Social science research indicates that the private school choice is often especially valuable to poor and minority children, and that some religious schools — notably Catholic schools — are particularly adept at improving the performance of disadvantaged students.”

Tennessee’s Education Savings Account Program Gets Legal Green Light

Implementation of the Education Savings Account Pilot Program enacted by Tennessee Governor Bill Lee (R) and state legislators in 2019 will finally move forward after the Tennessee Supreme Court ruled on May 18 against a legal challenge to the program. The lawsuit challenging the ESA program, which will make annual education scholarships of approximately $7,000 available to parents in Shelby and Davidson Counties (home to Memphis and Nashville), had been filed by Shelby County and Metro Nashville governments in February 2020.

“The state Supreme Court issued its split decision in a statement noting that a ‘home rule’ provision in the state’s constitution, which lower courts had cited as an obstacle, did not apply to the voucher law,” Chalkbeat Tennessee reported the day the Tennessee Supreme Court ruling was handed down. “The reversal essentially revives Gov. Bill Lee’s education savings account program, the signature legislation of his first year in office and the source of a fierce legal battle for more than two years.”

In response to that May state Supreme Court decision, on July 13 a three-judge panel lifted the two year old injunction that had blocked the ESA program’s launch. The ruling means state officials can begin implementing the ESA program.

“With today’s lifting of the injunction, the department is excited to re-start work to plan for implementation of the ESA program to provide additional options for high-quality education to Tennessee students and families,” said Tennessee Department of Education spokesman Brian Blackley on July 13.

Opponents of Tennessee’s ESA program continue to claim it will harm public schools and reduce their funding. Yet ESA advocates point out such claims are false, since per pupil funding actually increases at a public school when a student uses an ESA to instead attend a private or public charter school. ESA advocates also argue that giving parents a choice doesn’t necessarily mean they’ll pull their kids from the local public school. Parents in Memphis and Nashville will have the option to continue sending their kid to the public school to which their address assigns them, or to use ESA funds for private school tuition and other education related costs.

Though implementation of Tennessee’s ESA program can now move forward, there are still multiple pending lawsuits against the program. In addition to those, Nashville Mayor John Cooper (D) filed a petition in late May with the Tennessee Supreme Court asking for a review and reconsideration of the high court’s 3-2 decision in favor of the ESA program. In the meantime schools are preparing to soon enroll new students with the help of ESA funds.

“Just a week after the injunction was lifted, more than 40 independent schools answered the call and announced their intent to enroll students using the ESA program this August,” said Shaka Mitchell, director for state strategy & advocacy at American Federation for Children. “Despite the school boards fighting to stop the ESA program and delay educational opportunity, they ultimately lost. And the record is clear – children and parents continue to win both in the statehouse and the courthouse.”

Glenn Youngkin Restores Previously Slashed School Choice Funding

Virginia Governor Glenn Youngkin’s (R) first seven months in office have produced wins on a number of policy fronts, one of those being education. The final spending package signed into law by Youngkin in June, which included $400 million in annual tax relief, was shaped by the first term governor, who made 38 amendments to the budget lawmakers initially passed.

Among Youngkin’s amendments was one that reversed a reduction in funding for Virginia’s Education Improvement Scholarship Tax Credit (EISTCP) program. That move by Youngkin saved Virginia’s school choice program from being reduced to less than half its previous size.

“EISTCP provides scholarships to Virginia families with a household income up to 300% of the federal poverty guideline (400% for students with special needs) for use at private schools,” explained former Virginia education secretary Gerard Robinson. “EISTCP expands the freedom that families have to choose a school. EISTCP is not perfect, nor is it a choice for all families. Nevertheless, it remains an educational beacon of hope in Virginia.”

“We’re also restoring educational freedom by protecting the education scholarship tax credits which expand parental choice,” Youngkin said of his budget amendment, which state lawmakers ultimately concurred with and included in the final budget.

Iowa Governor Successfully Primaries Opponents Of School Choice

The victories for school choice proponents in 2022 have been accomplished judicially, legislatively and, as Iowa recently demonstrated, also electorally. Six incumbent Republican legislators lost their primary in June, with Governor Kim Reynolds (R) working to beat all but one of those defeated incumbents. The ousted incumbents were targeted for being obstacles to enactment of the education savings account program proposed by Governor Reynolds.

“I’ve been very clear that it’s critical we have a strong public school system,” Reynolds said during a June 7 radio interview, adding that “parents deserve the choice of what environment is best suited for their children to thrive.”

Given Governor Reynolds’ successful involvement in select primaries, it’s likely that, if reelected this November, she’ll have a statehouse that is more inclined to pass her school choice legislation in 2023. “Ultimately, we’re going to make sure that every parent has a choice in their child’s education,” Reynolds told the Iowa GOP State Convention held after the June primary.

“Obviously we want to continue to work with the governor to get something achieved,” Iowa House Speaker Pat Grassley (R) told reporters about the ESA bill championed by Reynolds. “That’s been a big priority of hers moving toward next session, and we’ll work on that in the off season.”

Opponents of expanded school choice, meanwhile, have downplayed the ouster of half a dozen teachers union allies from the Iowa Legislature. “We do not believe Republican primary turnout, influenced by more than a quarter million dollars in campaign contributions from out-of-state, pro-voucher organizations demonstrates Iowans’ priorities,” said Melissa Peterson, legislative and policy director of the Iowa State Education Association.

Good News For School Choice Proponents Out Of Both Carolinas

The revised state budget enacted by Governor Roy Cooper (D) and the GOP-led General Assembly in late June provided a financial boost to North Carolina’s Opportunity Scholarship Program. The program, enacted in 2013, provides education vouchers to parents in low- and middle-income households, who can use those funds to pay for private school tuition for their kid, along with tutoring, books, and other education-related costs.

The revised budget Governor Cooper signed on June 30 will put an additional $56 million into the Opportunity Scholarship Program’s reserve fund. The new budget also increases the number of families eligible for education vouchers by lifting the income threshold.

“The spending plan also raises the income limit to qualify from 175% of the federal free- and reduced- lunch program amount to 200%,” David Bass reported in the Carolina Journal. “The change means that a family of four could qualify for the scholarship earning up to $102,676 per year, while the previous upper limit was $89,842.”

This is the second victory for school choice advocates in North Carolina in less than a year. That’s because the initial version of the biennial state budget approved last November already increased the value of scholarships available to students in the voucher program. The budget signed into law by Governor Cooper on November 18 raised the maximum opportunity scholarship from $4,200 to $5,900 annually per student. The maximum voucher will rise to $6,168 for the 2022-2023 school year in North Carolina as a result of adjustments in the methodology for scholarship’s calculation.

Next door in South Carolina, meanwhile, school choice advocates were disappointed earlier this year when state lawmakers failed to pass legislation to create an education scholarship account program in the Palmetto State. That legislative defeat in the spring, however, was followed by a victory this summer for supporters of expanded school choice in South Carolina.

On June 28, Ellen Weaver, president and CEO of the Palmetto Promise Institute, a South Carolina-based think tank, won the Republican primary runoff to be the GOP nominee for state education superintendent. Weaver, a champion of expanded school choice, defeated Kathy Maness, who leads the state teachers union and opposes ESAs and other reforms that expand school choice.

Maness tried to downplay her defeat with the same argument used by school choice opponents who lost their primaries in Iowa earlier in the month, blaming “out of state PAC money.” Weaver will go on to face Democratic nominee Laura Ellis in the November general election.

“This education race is really about two different directions for education in South Carolina,” Weaver said in the lead up to her primary victory. “And we have a clear choice in this election between someone who has been part of the status quo for decades and more of the same or new leadership, fresh ideas and courageous vision, which is what I am offering to the people at this stage.”

Arizona Enacts Gold Standard Education Savings Account

On June 24, one week before 2022’s halfway point, the Arizona Legislature passed HB 2458, legislation that expands access to Empowerment Scholarship Accounts, the state’s ESA program. With enactment of HB 2458, all K-12 students in Arizona, irrespective of household income, are now eligible for an ESA. Governor Doug Ducey (R) signed the bill into law on July 7, making Arizona the first state in the U.S. to offer a universal education voucher program.

“Our kids will no longer be locked in under-performing schools. Today, we’re unlocking a whole new world of opportunity for them and their parents,” Governor Ducey said at the bill signing. “With this legislation, Arizona cements itself as the top state for school choice and as the first state in the nation to offer all families the option to choose the school setting that works best for them. Every family in Arizona should have access to a high-quality education with dedicated teachers. This is truly a win for all K-12 students.”

Republicans have one-seat majorities in the Arizona House and Senate. That means legislative leadership had little margin for error in shepherding through the bill to create the nation’s first universal ESA program.

“In Arizona, we fund students, not systems, because we know one size does not fit all students,” said House Majority Leader Ben Toma (R). “It was my privilege to sponsor the most expansive school choice law in the nation, opening Empowerment Scholarship Account eligibility to all school-age children without restriction. I appreciate Governor Ducey for his strong support to help Arizona become the first state with a truly universal ESA program, delivering educational freedom to more than 1.1 million students.”

As in Tennessee and other states that have created similar ESA programs, critics contend the availability of ESAs in Arizona will harm public schools, often with claims that public school funding will be cut. The Goldwater Institute, an Arizona-based think tank that pioneered the concept of ESAs, points out such assertions are false, noting that “the ESA program simply ensures that each student’s funding follows the student, just like it already does each time a student leaves a public school for a different public school using the state’s open enrollment option.”

“Moreover,” Goldwater adds, “the ESA program costs roughly $6,400 for a typical student, compared to the more than $11,000 that state and local taxpayers spend on each public school student (not even counting the cost of federal spending on top of that). Each time a student leaves a public school for an ESA, over $600 is immediately added back to the public school system, even though it no longer serves that child—which means there is more money for public school students on a per-pupil basis thanks to the ESA program.”

Though 2022 has been filled with major victories for school choice proponents, it hasn’t been without setbacks. On July 6, for example, Kanawha Circuit Judge Joanna Tabit ruled West Virginia’s ESA program to be unconstitutional and blocked the program from moving forward.

West Virginia lawmakers and Governor Jim Justice (R) passed legislation in 2021 creating what was, until the passage of the new reform in Arizona this year, the nation’s most expansive ESA program. The circuit court decision against that ESA program is not the end of the matter, as the ruling will be appealed to the West Virginia Supreme Court.

“I am disappointed with this ruling. We will appeal because this is an important law that provides parents greater freedom to choose how they educate their children,” said West Virginia Attorney General Patrick Morrisey (R). “Our kids deserve the best educational options — we will fight for our kids and the hard-working families of our state to retain this law and uphold its constitutionality.”

School choice proponents hope West Virginia Supreme Court justices will ultimately issue the same verdict as their counterparts on the Tennessee high court, overturning the lower court’s ruling and allowing the ESA program to proceed. Such an outcome would be celebrated by parents of the more than 3,000 students who have already applied for an ESA in West Virginia.

As in West Virginia, opponents of the new Arizona ESA program are seeking to prevent it from being implemented. Save Our Schools (SOS) of Arizona recently announced they’re working to refer the ESA expansion to the ballot. If SOS collects 119,000 valid signatures by September 25, the ESA expansion will be delayed until the referendum is voted on in 2024.

ESA opponents believe “if families get a taste of education choice, they won’t want to give it up,” writes Corey DeAngelis, a senior fellow at the American Federation for Children. “It’s easier to prevent them from exercising the ability to choose at the outset than to try to take that choice away later.”

A wealth of research indicates school choice produces better education outcomes and can do so at a lower cost to taxpayers. What’s more, empowering parents with greater school choice is seen by many as a way to diffuse the tension that stems from having such an ideologically polarized, and increasingly so, U.S. populace.

Both red and blue states increasingly seek to impose one-size-fits-all state-sponsored dogma through their public education systems,” Professor Somin points out. “School choice that includes a wide range of religious and secular options allows dissenters to go their own way and creates valuable competition that parents can take advantage of.”

32 new or expanded school choice policies were enacted in 19 states last year. There are many reasons to expect that trend to continue into 2023 and beyond.