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School choice goes to court: The year’s most important lawsuits

By   /   December 23, 2014  /   News  /   No Comments

By Watchdog Staff

As inevitably as night follows day, lawsuits follow the establishment or expansion of school choice programs.

This year proved no exception.

The reason is simple, according to C.J. Szafir, education policy director for the Wisconsin Institute for Law and Liberty.

“Because opponents of school choice continue to lose at the ballot box, a common tactic they have resorted to is trying to tie it up with litigation in courtrooms,” Szafir explained.  

School choice was on trial in courtrooms across the country this year — from Florida and Arizona to New Hampshire and both Washingtons, D.C. and the state.   

Here’s a look at the year’s most important cases.


Florida’s tax-credit scholarship program currently affords about 70,000 economically disadvantaged school children, mostly minorities, the opportunity to attend private school.

It’s a way out for parents dissatisfied with their assigned public schools, and lawmakers are on board because no tax dollars are directly involved. Individuals or corporations donate to qualified education nonprofits, which in turn write tuition checks, in exchange for tax credits.

But after years of incremental growth, status quo interests finally threw down the gauntlet.

The Florida Education Association, the state teachers’ union, filed two separate lawsuits this year aimed at undermining the popular school choice initiative. One, to outright kill the program, and another to void its recent expansion.

The FEA contends the scholarship expansion was wrongfully passed with a new measure designed to help disabled students. More than 1,200 students with severe disabilities have enrolled in this program, which helps parents afford therapies and educational services outside the public school system.

AP file photo

SCHOLARSHIP PROGRAM CHALLENGED: A teachers union is challenging the legality of a scholarship program that helps students with special needs.

According to the lawsuit, the Legislature violated a technical requirement known as the “single subject” rule.

In response, proponents say “education” was the single subject.

A state circuit court judge threw out the FEA’s complaint in October, ruling the union hadn’t suffered any tangible harm. But it quickly amended its case and refiled. The lawsuit is still ongoing.

“It’s disappointing that they want to continue the lawsuit,” Patrick Gibbons, spokesman for Step Up for Students, a tax-credit scholarship nonprofit, told Watchdog.

“It’s just disappointing that they’re going to continue to prolong uncertainty for families who want different options that weren’t available until this year,” said Gibbons, a former teacher.


A tax-credit scholarship program in Alabama that allows students in failing schools to attend private schools is being challenged on constitutional grounds.

A judge ruled against the Alabama Accountability Act earlier this year, saying it violated the state’s constitutions restrictions on providing public funds to charitable and religious institutions.

Attorneys representing parents who support the program appealed the decision to the Alabama Supreme Court.

This is the third lawsuit challenging the act. The first two were dismissed.

Bert Gall, an attorney at the Institute for Justice, said if the ruling is overturned, it will help bring about an end to the status quo which traps students in underperforming schools.

“Alabama desperately needs school choice,” he said. “(Parents) view the Accountability Act as nothing short of a godsend.”

Opponents say the tax credits are an improper use of state funds and have concerns about the manner in which the law was passed.

A decision could be made before the end of the year.

Washington, D.C.

A group of charter schools is suing the D.C. government for violating federal law, claiming they receive $2,000 less per pupil than the public school district.

The D.C. Association of Chartered Public Schools and two charter schools, Eagle Academy and Washington Latin Public Charter School, filed the complaint in federal court in July.

The schools claim the disproportionate funding is a violation of federal equal spending laws and this has led to them being shortchanged by more than $770 million over the past eight years.

The issue has implications beyond school equality, with opponents saying it’s a violation of D.C.’s Home Rule Act.

Under the 1973 act, Congress gave control of local issues, like education, to the D.C. City Council.

The city has asked the court to dismiss the case, saying equal funding is a local issue and the council has the right to amend federal statute.

North Carolina

In North Carolina, two lawsuits are challenging the constitutionality of the state’s Opportunity Scholarship Program.

The program was established in 2013 to help low-income families afford private school tuition if they believe public schools are failing their children. An eligible family can receive up to $4,200 per student.

One of the lawsuits is sponsored by the North Carolina Association of Educators and the North Carolina Justice Center, along with 25 North Carolinians. The other is from 71 school boards and the North Carolina School Boards Association.

Both cases are currently under consideration by the North Carolina Supreme Court.

Wikimedia Commons photo

THE GOOD, THE BAD AND THE STILL UNDECIDED: School choice programs faced many legal challenges in 2014. The results were mixed.

The plaintiffs claim the program will divert much-needed funds from public schools, which would violate the state’s constitutional obligation to provide free and adequate public education for its residents.

Supporters of the program say it could actually save the state money because of the high per-pupil cost to educate a student in public school.

The program’s supporters have some powerful political allies, including U.S. Senator-elect Thom Tillis and leaders from both the state Senate and Assembly.

“I think it made a big difference in North Carolina that the legislative leadership intervened in the case,” said Dick Komer, senior attorney at the Institute for Justice.

Earlier this month, the state supreme court decided the program can continue to accept applications.

The court’s final decision on the program’s constitutionality could come as early as February.


A law allowing 40 charter schools to open in Washington is being challenged by the Washington Education Association, the League of Women Voters, El Centro de la Raza and the Washington Association of School Administrators.

The WEA says the charter law violates the state’s constitution because it redirects funds away from public schools, and gives them to schools that aren’t accountable to the public.

“Charter schools will be educating public school students,” Liv Finne of the Washington Policy Center, which is not involved in the suit, told in November 2013.  “Charter schools are just another program within the programming of public schooling.”

The case is currently before the Washington State Supreme Court.

Interestingly, Finne found that several of the plaintiffs, including the WEA and the League of Women’s Voters, have contributed to the judges re-election campaigns.

Four justices received the maximum contributions this year and three received the maximum in 2012 from the WEA.


In Douglas County, Colorado, a new approach to school choice is facing a problem that is anything but new. Unwilling to wait for the state to introduce school choice, the Douglas County School Board created its own program in 2011.

Under the board’s program, a student who had attended public school for at least a year could receive a scholarship worth 75 percent of whatever the district had spent the previous year on a student at that grade level. The program would be limited to 500 students, and the families of those students could spend the scholarship money to pay tuition at any private school of their choice.

To no one’s surprise, a lawsuit was immediately filed.

The lawsuit by the ACLU and Americans United for Separation of Church and State is based on the same objection to be found in just about every lawsuit that has ever been launched to try to stop a school choice program.

According to the ACLU, the program will illegally use “public funds to subsidize religious institutions,” since parents will be able to use scholarship money to pay tuition at religious-affiliated private schools.

So far, the courts in Colorado haven’t agreed with the ACLU, but the program has remained on hold until the issue is finally decided.

The case is currently before the Colorado Supreme Court.

Jim Bender, president of School Choice Wisconsin, sees the case as having an impact well beyond Colorado’s borders.

“It’s very important because the Douglas County approach represents a potential avenue on a local level to expand school choice that more states and more local districts may want to go down, if the program is upheld,” Bender said.


A law that allows students with disabilities to use public funds to attend a state-accredited, private school of their choice that is specifically suited to their needs is under fire.

A group led by public school administrators sued the State Department of Education claiming the Lindsay Nicole Henry Scholarships for Students with Disabilities Program Act violates Oklahoma laws that prohibit aid to religious schools.

“This is blatant religious discrimination,” said Eric Baxter. senior counsel of the Becket Fund for Religious Liberty, which represents parents who support the program in the suit.

“The law originally required the school district to issue a scholarship check to the parents, but the school districts flouted the law and refused,” Baxter said. “After the law was amended for the checks to come directly from the State Department of Education, several school districts — in September 2011 — sued the parents of children with disabilities for using the scholarships. The Becket Fund defended the parents in that lawsuit, which was ultimately dismissed by the Oklahoma Supreme Court in November 2012.”

But in August 2014, an Oklahoma judge ruled the program was unlawful if the scholarships were taken to schools that incorporate their religious teachings into their school program, although he upheld scholarships going to secular schools or even religiously affiliated schools as long as they are “religious in name only.”

Although the district court deemed scholarships going to certain religious schools unconstitutional, the judge stayed his ruling pending review by the Oklahoma Supreme Court, Baxter said.

The court has indicated it will decide the case, but hasn’t scheduled a hearing.

“It is possible that a decision could issue without a hearing in early 2015,” Baxter said.


The future of more than 13,000 students hangs in the balance in Fulton County Superior Court as Georgia’s tax-credit scholarship program is being challenged as unconstitutional.

Enacted in 2006, the program offers scholarships for children to attend private school and is funded by voluntary donations from private citizens, who receive a tax credit.

“Georgia’s school choice program has already helped over 13,000 children this year attend the schools their parents deemed to best fit their needs,” said Tim Keller, the lead attorney on the case for the Institute of Justice. “It is entirely constitutional and we are confident the Court will dismiss the lawsuit.”

The Institute for Justice, a nonprofit, libertarian public interest law firm based in Virginia, is defending the program on behalf of four families whose children rely on it.

“Each year, the scholarship program helps more than 13,000 Georgia students attend a school that best fits their needs,” Keller said. “Giving parents a choice in how to educate their children isn’t unconstitutional. Rather, giving opportunity and choice should be the goal of good government.”

The plaintiffs, backed by the Southern Education Foundation, contend families can choose to use the scholarships at religious schools and therefore the program violates the state’s constitution, which prohibits public funds being used “in aid of” religious entities.

“The program does not use one cent of public funds,” said Institute for Justice attorney Erica Smith. “It relies entirely on the voluntary donations of private citizens.”

Seven courts, including the U.S. Supreme Court, have already rejected the argument that tax credits are public funds and no court has found to the contrary, Keller said.

“I do not know when to expect a ruling (in the current case),” Keller said. “For now, the program remains up and running and as popular as ever. I expect that the $58 million cap on donations to scholarship organizations will be met early next year. In 2014, the cap was met by the end of January.”


Typically, a lawsuit over school choice is an attempt to limit or eliminate choice, but a Wisconsin lawsuit seeks to make sure a choice program really is available to every student.

Under Wisconsin’s Open Enrollment Law, parents can move their child to a public school in a different district if they are dissatisfied with the schools in their local district.

But Open Enrollment isn’t equally “open” for all students.

image courtesy of the state of Wisconsin

MAKING SURE OPEN ENROLLMENT IS OPEN TO ALL: A lawsuit is seeking to help special needs students access Wisconsin’s open enrollment program.

“There’s an additional set of limitations imposed on families of children with special needs that’s interfering with their ability to exercise the freedom of choice available to everybody else,” Wisconsin Institute for Law and Liberty President Rick Esenberg told

School districts are allowed to set special quotas for the number of special needs students, separate from the number of other students they agree to accept each year.

Districts can also reject the application of any special needs kid, if they claim accepting those kid would create an “undue financial burden.”

“There should never be any undue financial burden the way the system works,” Esenberg contends.

Any additional cost incurred by a district accepting a special needs student is supposed to paid by the district from which the student transferred.

In November, WILL filed suit on behalf of three families of special needs students claiming the uneven treatment of such student attempting to use Open Enrollment violates the Americans with Disabilities Act.

The goal of the lawsuit is simple, according to Esenberg.

“We’d like to come to a resolution where these families have the same freedoms that everyone else has to try to move their children to a public school that will better serve their needs.”

New Hampshire

In a significant win for school choice, the Supreme Court of New Hampshire ruled in favor of the state’s tax-credit scholarship program.

The ACLU, the ACLU of New Hampshire and the Americans United for Separation of Church and State challenged the program, arguing that public funds cannot be allowed to go to religious schools. They argued doing so would violate New Hampshire’s Blaine Amendment.

The court found these funds were not public dollars, but rather private funds as they came voluntarily from corporations. Under the tax credit law, corporations get a tax credit of 85 percent of the amount they donated to organizations that provide private scholarships to low-income families.

The decision was a “great victory for parents and students who want to choose the education that best meets their needs,”said Jason Bedrick, a policy analyst with the Cato Institute’s Center for Educational Freedom.

Bedrick sees the decision as an indication of how courts in other states faced with similar cases will rule.

“I expect that the Florida Supreme Court will reach a similar decision in the next few years, in line with the U.S. Supreme Court and state supreme courts in New Hampshire and Arizona,” Bedrick said.


Another big win for school choice this year happened in Arizona.

In March, an Arizona Supreme Court decision ended legal challenges to the state’s education savings account program..

Families can use education savings accounts to pay for tuition, tutors, books, education therapy and other education needs.

“It was very significant in that it was the first ESA win in the country,” said Jonathan Butcher, education director at the Goldwater Institute.

The state’s appeals court ruled in favor of the program in 2013, saying it wasn’t like voucher programs, which were ruled unconstitutional in 2009. The Supreme Court refused to hear the appeal, allowing the program to continue.

Advocates for the savings accounts argued that unlike vouchers, which are usually scholarships to private schools, ESA’s give parents multiple options.

“We were able to make the case that parents are not compelled to spend in one place,” explained Butcher.

William Patrick, Mary C. Tillotson, Bre Payton, Moriah Costa, Evan Grossman and Paul Brennan contributed to this story.