BRIEF: School Choice in the States, December 2017


As a part of its tax reform bill, Congress expanded the federal 529 college savings account program to permit withdrawals of up to $10,000 annually to cover tuition at elementary and secondary schools. Family and friends can make contributions to beneficiaries’ 529 accounts, and any earnings that the accounts accumulate over time are non-taxable.



On December 4, 2017, the Board of Education of the Douglas County Colorado school district voted to rescind the voucher program previously enacted by the board in March of 2011. Their voucher program began in 2011, but was halted by court order pending final ruling of the Colorado Supreme Court, and that order was never lifted. The Douglas County school board also directed their attorneys to ask the Colorado Supreme Court to dismiss the ongoing voucher litigation. Although the Colorado Supreme Court ruled in June of 2015 against the Douglas County voucher program, on June 27, 2017, the U.S. Supreme Court vacated that decision. (Doyle v. Taxpayers for Public Education, U.S. 582 __ (2017), 15-556.) They further\ instructed the Colorado Supreme Court to reconsider its decision in light of the U.S. Supreme Court ruling in Trinity Lutheran v. Comer, the June 26, 2017 decision allowing a church with a school playground to participate in a widely available public benefit program. Attorneys for the Douglas County school district and board, private citizen plaintiffs, the Colorado board of education and department of education filed a joint motion on December 13, 2017, asking the Colorado Supreme Court to dismiss the case as moot, and asked the court to vacate prior rulings of the lower courts, including the appellate court’s ruling in favor of vouchers, which ruling is now in effect (after the Supreme Court’s ruling was vacated). The Institute for Justice, representing parents who claimed vouchers for their children in 2011 or who otherwise support the voucher program, indicated they would file a motion opposing the dismissal of the case and opposing the vacating of prior court decisions. For additional information, see our post, “A Frank Description of What Really Happened with Douglas County, Colorado’s School Voucher Program.



On December 13, 2017, Florida’s First District Court of Appeal, ruling on Citizens for Strong Schools v. Florida State Board of Education, rejected claims that the state’s constitutional provision for uniform, efficient, safe, secure, high-quality public schools was violated as a direct result of inadequate funding and Florida’s school choice programs. The District court agreed with the trial court’s May 2016 opinion finding that Florida’s system of free public schools satisfies constitutional requirements, and opined that plaintiffs’ claims “either raise political questions not subject to judicial review or were correctly rejected on the merits.” Both the trial and appellate courts opined that Florida’s McKay voucher for children with disabilities does not negatively impact public school funding or quality but rather offers an educational benefit for children. The court also reminded plaintiffs that the Florida Supreme Court previously ruled they had no standing to sue against the tax-credit scholarship program and that the school choice program did not divert state funding or have any detrimental effect on Florida’s system of public schools. (Citizens for Strong Schools v. Florida State Board of Education, No. 1D16-2862 (Fla. Dist. Ct. App. Dec. 13, 2017).)



Wisconsin legislators filed a bill to create education savings accounts (ESAs) for low-income students who score in the top 5 percent of any test mandated by the state or have been identified “by an education official” as being gifted and talented “if a student demonstrates evidence of high-performance capability in intellectual, creative, artistic, leadership or specific academic areas and needs services or activities not ordinarily provided in a regular school program.” The state would annually distribute $1,000 into the accounts to pay for tuition, tutors, textbooks and more. If enacted, the Gifted and Talented ESA would be the first of its kind in the nation