San Juan, Puerto Rico—On Friday, the Puerto Rico Supreme Court agreed to immediately hear a case concerning the constitutionality of Puerto Rico’s new Free School Selection Program. The Program, passed into law in March, grants eligible families scholarships to send their child to the private or public school of their choice. The Court of the First Instance of San Juan ruled that the Program was unconstitutional on July 6.

The Program was challenged in court by a teachers’ union, the Asociación de Maestros de Puerto Rico, in April. Helping the Commonwealth defend the program are three families who would be eligible for program scholarships.

“This program would be a very important tool for parents to be able to choose a school that meets the needs of our children,” said Jessica Ñeco, one of the mothers who is defending the Program in court. Ms. Ñeco wants to apply for a scholarship for her daughter. “By creating the Program, the government is telling our children ‘I believe in you, I trust you, you can dream … we are with you.’”

Briefing in the case is due on Friday, an expedited schedule. Should the courts allow the Program to move forward, families will begin applying for Program scholarships for the 2019-2020 school year. Students who have been enrolled in a public school for at least two years are eligible, and the Program is capped at approximately 9,600 students in its first year. The Program prioritizes students who are low-income, disabled, gifted, adopted or in foster homes, victims of bullying or sexual harassment or falling behind in their education.

According to the teachers’ union, the Program violates Article II, Section 5, of the Puerto Rico Constitution, which prohibits public funds from being used “for the support of schools or educational institutions other than those of the state.” In its ruling, the Court of First Instance agreed with the Union. However, the Court also ruled that the families could be a party to the lawsuit in order to help the government defend the Program’s constitutionality.

The families argue the Program is constitutional because it “supports” needy families, not schools, and any benefit to private schools under the Program is merely incidental. The U.S. Supreme Court and several state courts have already upheld similar school choice programs.

Currently, 32 similar school choice programs exist across the country. All of them allow parents to send their child to a private school with a government funded scholarship. “Programs like this exist throughout America, why do we have to be left out?” asked Ms. Ñeco.

The three families are represented by the nonprofit organization the Institute for Justice (IJ) and attorney Salvador Antonetti, former Solicitor General of Puerto Rico.

“These families are fighting to send their children to a school that best fits their individual needs,” said Erica Smith, attorney at IJ. “A good education should not depend on where you live or how much money your parents make.”

IJ is a national nonprofit firm with expertise in the constitutionality of school choice programs. IJ has represented parents and children in over 20 school choice cases across the United States, including twice at the U.S. Supreme Court.