Andrew Wimer
Andrew Wimer · November 2, 2023

ARLINGTON, Va.—When it opened its doors in 1991, the Institute for Justice (IJ) set a bold goal: to be the lawyers for the educational choice movement, counseling state legislators in adopting legally sound choice programs and firmly establishing the constitutionality of those programs in the courts of law. In the ensuing three decades, IJ accomplished that goal: It secured a string of legal victories—including four at the U.S. Supreme Court—that resolved the major federal constitutional questions, as well as many of the major state constitutional questions, firmly in favor of choice.

At the same time, EdChoice was building its reputation in the states as the premier organization providing critical research and educational information to stakeholders working to expand school choice throughout the country. In the past two years, the number of students eligible for a private school choice program has increased by 60%, and the number of states with universal or near-universal choice programs has grown from two to 10.

Beginning today, the two organizations will join forces to provide legislative counseling and legal defense of choice under the joint banner of the Partnership for Educational Choice, with the newly founded EdChoice Legal Advocates eventually taking over those responsibilities from IJ.

“IJ and EdChoice have worked together for decades to pass, promote and defend educational choice programs and we are excited about our new partnership to ensure vigorous defense of state programs throughout the country,” said IJ President and Chief Counsel Scott Bullock. “IJ has accomplished what it set out to do three decades ago: establish the constitutionality of educational choice programs and, in turn, make it possible for millions of families across the country to benefit from the opportunity that those programs provide. As we gradually hand the baton of defending choice programs to our friends at EdChoice, IJ will turn its attention to new work in educational freedom: tackling government-imposed barriers that stifle education entrepreneurship and parental freedom.”

As states continue to create new and innovative educational choice programs, the legal battles will continue. But with the federal constitutionality of choice firmly established, those battles are increasingly focusing on state constitutional and statutory claims. EdChoice, with its long history of working in statehouses, is intimately familiar with the types of state-law issues that legislatures must navigate in expanding educational opportunity. Representing families in court is critical to ensuring the programs created in recent years remain available in perpetuity.

“To realize Milton and Rose Friedman’s vision of universal choice, we must not merely create educational freedom programs, but also ensure they withstand legal challenge in state courts,” said EdChoice President and CEO Robert Enlow. “Just as we anticipate a need to help implement school choice, we also anticipate an increased need to represent parents and defend these statutes across the country. By partnering with IJ to launch EdChoice Legal Advocates, we will safeguard the Friedmans’ legacy and preserve choice programs for families.”

IJ was founded at the beginning of a new era of school choice programs, with Milwaukee, Wisconsin establishing the nation’s first publicly funded school choice program for low-income children in 1990. IJ successfully defended the program before the Wisconsin Supreme Court in 1991 and 1998.

A string of IJ victories at the U.S. Supreme Court followed. In Zelman v. Simmons-Harris (2002) and Arizona Christian School Tuition Organization v. Winn (2011), the Court rebuffed federal constitutional challenges to educational choice programs. Victories in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022), meanwhile, ensured that states cannot exclude religious options from choice programs.

EdChoice has created EdChoice Legal Advocates to house its new litigation efforts, and has hired Tom Fisher, former solicitor general of the state of Indiana, to lead the effort. Fisher has argued five times at the U.S. Supreme Court and many more in the Supreme Court of Indiana, including in Meredith v. Pence, in which, along with IJ, he successfully defended the state’s Opportunity Scholarship Program. 

Regarding his new role, Fisher said, “The power and promise of educational freedom for all families has been important to me for many decades. One of my proudest moments as a lawyer was arguing in the Indiana Supreme Court in defense of our choice scholarship law, so when EdChoice asked me to advance the legal defense of educational choice in other states, I was eager to take on the mission.”

IJ Senior Attorney Michael Bindas, who leads IJ’s educational choice practice and argued Carson at the Supreme Court, concluded, “This partnership will be a force multiplier for the education freedom movement, ensuring that legislatively adopted choice programs continue to receive a robust legal defense and that governmentally imposed barriers to education entrepreneurship and parental freedom receive a robust legal challenge. Every child deserves the education that will work best for her, and this partnership will bring us closer to making that a reality.”