September 21, 2020

In August’s Liberty & Law, we reported on IJ’s landmark U.S. Supreme Court victory, Espinoza v. Montana Department of Revenue. Vindicating arguments IJ has been making for decades, the Court decisively removed the biggest single legal obstacle to educational choice. This victory could not have been better timed. America’s education system faces a once-in-a-generation disruption, and the need for alternatives to the status quo—and the lengths to which entrenched interests are prepared to go to fight them—has never been clearer.

To see the legal aspects of this drama playing out in real time, look no further than the latest additions to IJ’s educational choice docket.

We immediately filed post-Espinoza cases in New Hampshire and Vermont to strike down discriminatory statutes and replace bad precedent with the standard set forth in Espinoza—and give families in both states more schooling options. New Hampshire and Vermont each have town “tuitioning” programs, through which local districts that don’t operate public schools give parents the money to send their children to private schools. But in both places, the state prohibits families from using their tuition dollars at religious schools. As the Supreme Court affirmed in Espinoza, states cannot favor or disfavor religious options in choice programs, and IJ filed suit so that parents can use their tuitioning funds at the schools of their choice this school year.

In North Carolina, we moved to intervene and save the Opportunity Scholarship Program (OSP), which serves 12,000 low-income families, from renewed attack by teachers’ unions and their allies. Back in 2015, IJ defeated two separate challenges to the then-fledgling program and won a victory at the North Carolina Supreme Court. This summer, the unions dusted off their old lawsuit, gave it a minor facelift, and refiled it. Their claim? The OSP does not offer enough non-religious options or a guarantee of educational progress to the students who voluntarily participate. Their proposed solution to allegedly insufficient choice and accountability? Kill the program and remove all choice and accountability.

In South Carolina, we filed a friend-of-the-court brief at the state Supreme Court, arguing that its new one-time scholarship grants to parents do not violate the state constitution. If our opponents’ arguments prevail, the new scholarships might not be the only casualty. There would be dire implications for well-established higher education programs as well, and a bad decision could erect new legal barriers to the enactment of future educational choice programs.

On top of these new cases, we continue ongoing litigation in Maine, Nevada, and Tennessee. We are prepared to intervene if and when new cases are filed in any of several other states and are monitoring the rapidly developing situations all over the country to ensure that parents have as many options available to them as possible.

As the COVID-19 pandemic continues to leave families scrambling to find ways to safely give their children a good education, IJ is working tirelessly to support and expand options that meet their needs—and to protect existing opportunities from new attacks.

Melanie Hildreth is IJ’s vice president for external relations.

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