Back To School & Back To Work: IJ Launches Education Entrepreneurship Project

For parents and kids across the country, September is a time of transition as summer vacation ends and a new academic year begins. This September was a time of transition for IJ, too, as we embarked on a bold new Education Entrepreneurship Project, shifting our focus from defending educational choice programs to defending the rights of education entrepreneurs. 

Since IJ opened its doors 35 years ago, we have fought daily to ensure that parents can access the best educational opportunities for their children’s unique educational needs. For most of our history, that meant helping state legislators craft legally sound educational choice programs, then defending those programs in court when they were almost invariably challenged by the teachers’ unions and their cronies. 

Supreme Court Success And Innovation In Education

We were remarkably successful in that work: In four trips to the U.S. Supreme Court, we made clear not only that educational choice programs are permissible under the federal Constitution, but also that opponents of choice cannot weaponize discriminatory state constitutional provisions to take away the opportunity that choice programs provide.

The last of those trips to the Supreme Court happened to coincide with the COVID-19 pandemic, when parental frustration with the public school system was boiling over. The failures of the public education establishment had stoked an overwhelming demand for new educational options. 

Thankfully, entrepreneurs rose to the occasion, developing unique and innovative models of education that continue to grow in popularity: microschools, hybrid schools, learning pods, and the like. Meanwhile, the education savings account and other school choice programs we’d defended helped parents access these new options for their children.

Although government was happy to tolerate these new forms of education while its own school system was in utter disarray, when things started to normalize, it again began doing what government instinctively does: regulating. It began cramming these new models of education into old regulatory boxes or enacting new laws specifically aimed at these new models. In either case, the result was the same: a stifling of education innovation. 

A Period Of Transition

As IJ witnessed this troubling trend, and as entrepreneurs and parents increasingly reached out to us for help, we decided the time was right to change gears with our education work. In fall 2023, we partnered with our longtime friend and ally EdChoice to help that organization open a litigation shop. As described in previous issues of Liberty & Law, EdChoice would gradually take over IJ’s historic role of defending legislatively enacted educational choice programs. That, in turn, would free IJ to shift our focus to tackling legislatively enacted barriers to education entrepreneurship.

The Education Entrepreneurship Project is the culmination of that transition. The project is committed to protecting the right of entrepreneurs to offer meaningful alternatives to the public school system—and the right of parents to access those alternatives for their children. By dismantling barriers to innovation, flexibility, and creativity in private education, the project will ensure that every parent can find the education that will best meet his or her child’s unique, individual needs.

Those regulatory barriers, unfortunately, come in all forms and from all levels of government, including: 

• Zoning laws that restrict private educational uses of private property. 
• Fire code provisions that saddle tiny microschools with building requirements designed for schools with hundreds of students. 
• Statutes that prevent homeschooling families from banding together to form co-ops or learning pods. 
• Childcare licensing laws that treat innovative hybrid homeschool programs as though they are daycare facilities.
• Teacher licensing laws that hamper a private school’s ability to hire unquestionably qualified teachers, simply because they don’t have the state’s preferred “credential.” 
• Over-the-top compulsory education laws that regulate down to the minute what instruction a private school or homeschooling parent must provide. 

The list goes on.

The Education Entrepreneurship Project will bring the full force of IJ—litigation, grassroots activism, strategic research, communications, and more—to bear on these and other barriers that government needlessly erects for those who simply want to provide the best possible educational opportunities for children. 

Reviving Century-Old Precedent

One of the project’s overarching goals is to reinvigorate a trio of cases from the 1920s—Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige—in which the U.S. Supreme Court provided robust constitutional protection for the right of parents to direct the education of their children and the right of private education providers to offer their services to willing families. 

Although these cases are today considered part of the Court’s canon, the Court has rarely relied on them in the century since they were decided. This dearth of Supreme Court precedent has left the lower courts utterly confused about the scope of protection that the cases provide, especially in an education environment so different from that of 1920s America. Government, meanwhile, has been happy to exploit that confusion, finding within it free rein to foist arbitrary, prohibitive, and crippling regulatory requirements on private education providers. 

IJ’s Education Entrepreneurship Project will pursue cutting-edge cases to ensure that Meyer, Pierce, and Farrington are restored to their rightful place as bulwarks of the rights of education entrepreneurs and the parents who seek their services. In that way, constitutional principles articulated a century ago provide powerful tools for safeguarding today’s and tomorrow’s most innovative approaches to learning.

As noted above, we’ve already made four education-related trips to the U.S. Supreme Court. We look forward to making a fifth, sixth, or however many more it takes to secure robust constitutional protection for parents and education entrepreneurs. 

Of course, the ultimate objective is not to secure that protection for its own sake. Rather, it is to ensure that America can have a truly diverse, pluralistic education marketplace in which every parent can find the education that will work best for his or her children.