BRIEF: School Choice in the States, July 2019


District of Columbia

The Council of the District of Columbia completed and submitted to Congress its budget request act for the new fiscal year. In it, D.C. lawmakers requested $40 million for the program that houses the D.C. Opportunity Scholarship Program. That program is now funded at $15 million and must be reauthorized by Congress.


In Espinoza v Montana Dept. of Revenue, Docket No. 18-1195, the U.S. Supreme Court granted Petitioners (parents represented by the Institute of Justice) and Respondent (State of Montana, Dept. of Revenue) extensions of time to file their merits brief in this very important case. Arising out of Montana, the question to be decided by the high court is whether it is a violation of the Religion Clauses or Equal Protection Clause of the U.S. Constitution to invalidate “a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.” Petitioners brief will be filed Sept. 11; Respondents reply brief will be filed Nov. 8, 2019. The high court has not yet scheduled the case for oral argument, however it is likely to appear on the court’s calendar in the early months of 2020.


Litigation was filed in July that may breathe new life into Nevada’s best-in-the-nation education savings account program, which was repealed earlier this summer. The repeal language was part of a bill that also extended Nevada’s Modified Business Tax (MBT), a tax on business that was scheduled to end. There was great controversy over passage of this bill, not only because it ended their school choice program but also because the bill passed by majority vote. Nevada’s constitution requires a two-thirds vote for bills generating revenue; arguably, continuing the MBT will generate revenue for the state that it otherwise would not have collected.

On July 18, several state senators (comprising the entire Nevada State Senate Republic Caucus) and three Nevada businesses subject to the state’s Modified Business Tax filed litigation against the state in Settlemeyer v State of Nevada, First Judicial District Ct in the State of Nevada, In and For Carson City, case No. 190C00127 1B, Dept II (July 19, 2019).

It is no secret that Nevada’s Republican state senators support school choice. If the bill repealing the program is found to be unconstitutional because it also raised revenue, requiring a two-thirds vote that did not occur, it’s possible that the repeal of their education savings account program would be invalid. As a result, the program would remain in the law, but would also remain unfunded. For now.


Gov. Mike DeWine signed a budget that includes several expansions of the Buckeye State’s voucher programs. Beginning in the 2020–21 school year, eligibility for the EdChoice voucher will expand to all low-income students in grades K-12. Currently this program is open to students in K–5 and has been adding one grade per year. The budget also appropriated an additional $50 million to support this expansion. The bill also increases the cap on total vouchers available for low-income students and students assigned to “failing” schools by 5 percent, if the number of applicants exceeds 90 percent of the allowable vouchers (currently 60,000) in the prior year. The budget appropriates an additional $5.9 million each year over the next biennium to the Cleveland voucher program. The bill also loosens the burdensome state test mandate by allowing private schools that accept voucher students to offer alternative assessments.