May 14, 2021

This is shaping up to be a banner year for educational choice legislation. The pandemic has laid bare the problems with a public school monopoly and a one-size-fits-all approach to education. Parents are demanding alternatives, and legislators are responding. 

But getting new programs enacted is only the first step in bringing greater educational opportunity to America’s kids. The second step is defending those programs when they are challenged in court. So IJ’s educational choice litigators have been ramping up to defend 2021’s new programs, even as we continue to defend existing programs and the promise of a better education they provide.

In March, the fight took us to the Nevada Supreme Court, where IJ Attorney Josh House argued against an attempt to neuter Nevada’s Educational Choice Scholarship Program—a tax-credit scholarship program for low- and middle-income students. At issue is the Nevada Legislature’s 2019 repeal, without the constitutionally required supermajority, of an “escalator” provision that gradually grows the program, allowing it to meet increasing costs and serve new children. The argument was lively, with an active bench, and Josh handled it with aplomb. We expect a decision this spring.

In early May, meanwhile, it was off to North Carolina, where IJ is beating back an attempt by educational choice opponents to strike down the Opportunity Scholarship Program for low-income families. Opponents of the program perversely—and bizarrely—argue that by affording parents the option of selecting a school that accords with their religious convictions, the program violates the religious convictions of educational choice opponents. IJ Attorney Ari Bargil argued for dismissal of the lawsuit, and we expect a decision soon.

And in early June, IJ is headed to the Tennessee Supreme Court to defend that state’s Education Savings Account Pilot Program. The program is under attack by local government and public education interests, who would sooner see low-income students remain trapped in underperforming public schools than receive a lifeline out of them. IJ’s team, led by Senior Attorney Arif Panju, is determined not to let that happen.

Were all this activity not enough, IJ is also busy challenging the exclusion of religious options from tuitioning programs in Maine, New Hampshire, and Vermont. These programs allow students from towns that do not maintain a public school to attend another town’s public school or a private school of their choice. Families who think a religious school is the best fit for their children, however, are out of luck.  

That’s a lot of litigation, and we expect to see even more as programs enacted this year are challenged. Defending parents’ rights to direct their children’s education is hard work, but we have the experience, optimism, and grit to prevail again now, just as we have for 30 years.

To learn more on how you could design an educational choice program, check out A Guide to Designing Educational Choice Programs.

Michael Bindas is an IJ senior attorney.

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