School Choice & Charters

Private School Choice Faces New Challenges as State Lawsuits Pile Up

By Mark Lieberman — November 16, 2023 6 min read
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Critics of the rapidly growing array of private school choice policies are increasingly turning to state courts to register their objections on constitutional grounds.

In the last month, private school choice critics in South Carolina and Wisconsin have filed lawsuits seeking to overturn new or recently expanded programs that allow parents to spend public dollars on private education. Dozens of districts in Ohio this year have signed onto a lawsuit asking a court to declare the state’s voucher program unconstitutional. And in Texas, districts have argued that a newly revised statewide accountability system for grading schools on an A-F scale is part of an unlawful scheme to promote privatize school choice, which has been a priority of Republican Gov. Greg Abbott.

These cases are playing out amid heated debates nationwide over the lines between public and private K-12 schooling. Many Republican-led states this year have established or expanded programs that offer state aid to families that don’t want their children to attend public schools. And more could be coming: Tennessee lawmakers signaled this month they intend to push for universal private school choice early next year.

Tens of thousands of students in states like Arizona, Iowa, and Florida are taking advantage of these expanded, state-funded private education subsidies, many of which are now available to all students who apply for them. A handful of states have devoted more than 10 percent of their education budgets to such programs, according to an analysis by the Edunomics Lab at Georgetown University.

But many public school advocates, and district leaders themselves, believe these programs will dent public school budgets and devote public resources to schools that can legally discriminate on the basis of race, sexual orientation, and disability.

Lawsuits over voucher programs aren’t new. Nevada in 2016 shuttered its education savings account program after state supreme court judges ruled that its funding mechanism violated the state’s constitution. The implementation of West Virginia’s Hope Scholarship, an education savings account program passed in 2021 through which families receive a set amount of money they can use on private school tuition or other education expenses, was delayed while a lawsuit challenging it played out. More recently, the Kentucky supreme court ruled unanimously in 2022 that state-funded tax-credit scholarships for private education were unconstitutional.

Still, these efforts are far from guaranteed to be successful. Just this week, a New Hampshire judge dismissed a legal challenge to the state’s education savings account offering. Several courts in Tennessee have rejected an ongoing lawsuit over the state’s voucher program serving students in its most populous counties.

The emerging crop of new cases is aiming to catch up to the relatively new and broader approach state lawmakers have taken in crafting private school choice programs that serve a much bigger share of the student body, said Robert Kim, executive director of the Education Law Center, a legal advocacy nonprofit that is providing counsel for the plaintiffs behind several lawsuits against voucher programs.

These cases are currently playing out on a state-by-state basis, with subtle differences from one to the next. But that may not always be true. Earlier this year, the Washington Post published an investigative article detailing far-right political operatives’ ambitions to secure a U.S. Supreme Court ruling in favor of parents’ right to state-funded vouchers nationwide.

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A case along those lines has yet to materialize, but it’s on the radar of voucher opponents.

“The courts in education rights cases have recognized that public schools are critical civic institutions to preserve a democratic system of government,” Kim said. “With the expansion of these vouchers, it truly is not hyperbole in my opinion to say we’re now confronting this existential threat to public education in the U.S., but also to our entire democracy.”

Here’s a rundown of a handful of states to watch.

South Carolina

South Carolina’s lawsuit represents the concerns of public school parents as well as organizations including the South Carolina Education Association and the state chapter of the NAACP.

The complaint argues that the state’s new universal education savings account program violates the state’s constitutional prohibition on using public funds for the direct benefit of private schools. The lawsuit also contends that it’s unconstitutional for the state to require the head of the state education department to administer a private school choice program.

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The state supreme court rejected a previous attempt to launch a new school voucher program in 2020. But the highly conservative majority that’s been appointed to the court in the intervening years could take a different stance.

Wisconsin

The lead plaintiffs in this case are seven parents, including Julie Underwood, a former dean of the University of Wisconsin School of Education. Underwood contends her two grandchildren will have a subpar educational experience in public schools because of the loss of funds that results from the state’s increased investment in vouchers.

Roughly a dozen prominent education scholars filed an amicus brief this week arguing that the Wisconsin Supreme Court should take up the case immediately, rather than let it wind its way through the lower courts first.

The lawsuit challenges four state programs in total: one that provides vouchers for private-school tuition to students in Milwaukee; a statewide voucher program that was established in 2013; a voucher program for students with special needs; and the state’s program authorizing charter schools.

Suzanne Eckes, a professor of education law, policy, and practice at the University of Wisconsin-Madison, said she signed the brief because she believes voucher programs have “exploded” in the state relative to their humble origins serving only a small slice of the state’s students. She’s hoping legal developments like this one will persuade lawmakers in other states to be wary of passing further laws that could later be deemed unconstitutional.

“It may give them pause to at least wait to see how these issues play out because we don’t have a definitive contemporary current decision on some of these challenges,” Eckes said.

Supporters of the Wisconsin lawsuit may get a more sympathetic audience now than they would have a year ago. Voters earlier this year flipped control of the state supreme court from conservatives to liberals.

Ohio

A coalition of school districts suing the state over its voucher program, for which lawmakers recently expanded eligibility to all students in the state, has grown over the last year from 100 to 250.

The case drew scrutiny earlier this year when state lawmakers directed the state auditor to survey every district on whether it had invested funds in participating in the lawsuit. District leaders decried the inquiry as attempted intimidation. Most said they had not spent any money to be part of the lawsuit.

Texas

The ongoing lawsuit in Texas is distinct from the others in this article. Texas is the largest, Republican-controlled state without a private school choice program. Republican Gov. Greg Abbott has been pushing lawmakers to enact a program for education savings accounts, but the legislature hasn’t formed consensus around a policy.

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Accountability Why These Districts Are Suing to Stop Release of A-F School Ratings
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The legal fight in Texas instead concerns the state education department’s accountability metrics for districts. In public comments about the lawsuit, district leaders allege that the state earlier this year changed its criteria for its A-F grading system for districts in an attempt to discredit public schools and promote Abbott’s political push for vouchers as an alternative.

Some district leaders believe their new grades will be lower than their old ones because the standards are now higher. They’ve secured a temporary halt on the release of the grades for the current school year.

One Texas superintendent told Education Week in September that the new accountability system could help the governor make the case for expanding private school choice in the state. “Our students and our teachers have worked so hard, and it’s completely being discounted and disregarded,” he said.

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