BRIEF: School Choice in the States – May 2020




In March, Congress passed The CARES Act, a multi-billion dollar COVID-19 relief stimulus bill that provided emergency relief block grants to states. These funds continued to be processed by states and school districts. In May, U.S. Department of Education guidance enabled governors to appropriate the law’s Education Stabilization Funds to best fit the needs of states’ schools and students, both public and private. The department informed states and districts that the funds from the law’s School Emergency Relief Fund were to be distributed equitably to all schools, including private schools, based on states’ and school districts’ Title I allocations. States and school districts interpreted the guidance and laws differently, resulting in private schools and students in some states failing to receive designated funding.


The Arizona Supreme Court and the federal Ninth Circuit Court of Appeals both rejected lawsuits by Save Our Schools Arizona and other groups seeking to gather signatures for ballot propositions to have access to an online signature-gathering platform. State law requires that signatures for ballot propositions be collected in person. After the court rulings, Save Our Schools Arizona suspended its campaign to severely limit access to Arizona’s Empowerment Scholarship Accounts.


Maryland enacted its annual budget in early May. The budget appropriated $6 million for the state’s BOOST voucher program while adding additional non-discrimination measures for participating private schools.


We continue to wait for the U.S. Supreme Court decision in Espinoza vs Montana Department of Revenue. That decision should be forthcoming before July.


On May 5, the Eighth Judicial District of Clark County ruled against parents and upheld the constitutionality of the legislature’s act to remove the escalator clause in the state’s tax-credit scholarship program. Parents brought the case against the state in Flor Morency vs. State of Nevada Dept of Education, Case No. A-19-800267-C.

On May 29, parents, represented by the Institute for Justice, filed a notice of intent to appeal the ruling. Pending.

North Carolina

SB 857 was filed on May 26. If passed, it would create a tax credit for individuals using private and homeschooling options for children. To be eligible, an individual would have had to receive a federal impact payment under the CARES Act and experienced a decrease in adjusted gross income by at least 10 percent. The tax credit would be worth up to $2,500 per dependent child for private schools, and $500 per dependent for homeschooling.

HB 1126 was filed on May 14. If passed, it would change the requirements for the opportunity scholarship program. The Opportunity Scholarship program was passed in 2013 as a low-income voucher opportunity for children in North Carolina. HB 1126 seeks, in part, to have selected students take a “common examination” as determined by North Carolina’s Authority overseeing the program. This examination would be used, in part, to review the program.

HB 1129 was filed on May 14. It proposes an additional appropriation of $1.5 million in recurring funds for the Department of Public Instruction to expand the Advanced Teaching Roles program, and $600,000 in recurring funds for the Department of Public Instruction for the establishment and operation of the Office of Equity Oversight. The bill, if passed, would also abolish the Opportunity Scholarship program in North Carolina. This low-income voucher served more than 12,000 students in 2020. Families can use the Opportunity Scholarship to pay for tuition, transportation equipment and other necessary private school expenses. To be eligible for the program, a student must come from a household with an income that does not exceed 133 percent of FRL. Students must also have attended public school during the previous semester. Kindergartners, first graders, foster children, dependents of full-time active military members and children that have been adopted in the past year qualify for vouchers without having to attend a public school.

On May 5, North Carolina saw the filing of SB 711. If passed, the bill would expand eligibility of the Opportunity Scholarship to all children eligible to attend a North Carolina public school. This would omit the existing requirement that students must have attended a public school previously, or be in entering kindergarten, first grade, foster children, adopted in the last year, or dependents of full-time active military members.


On May 14, Bill Phillis, executive director of the Ohio Coalition for Equity & Adequacy of School Funding, made a public announcement that his group, with support from both teachers’ unions in the state, will file litigation challenging the constitutionality of Ohio’s EdChoice voucher. They argue that the program serving fewer than 25,000 students is dismantling the public education system with more than 1.6 million students.


On May 4, the Tennessee Chancery Court of Davidson County granted Davidson and Shelby Counties’ motion for summary judgment in The Metropolitan Government of Nashville and Davidson County vs. Tennessee Department of Education. The court held that the Tennessee ESA Pilot program is unconstitutional based on the home rule provision in Tennessee’s constitution prohibiting legislation limited to a particular county without a local vote. Remaining legal issues (regarding the Tennessee constitution’s provisions on education, Equal Protection, and Appropriation of Public Moneys, and the BEP statute) raised in the accompanying case, Roxanne McEwen vs. Bill Lee, were reserved by the Chancery Court for later consideration.

On May 13, the court denied the state and parent intervenors’ request to stay the ruling pending further litigation, which would have allowed the parents who met the application deadline to receive voucher funding for their children.

On May 19, the Tennessee appellate court accepted the case on interlocutory appeal and also denied the state and parent intervenors’ request to stay the adverse ruling of the Chancery Court. The case number is now M2020-00683-COA-R9-CV.

This case is currently scheduled for oral argument on August 5. However, a motion was submitted to the Tennessee Supreme Court asking that court to remove the case from the Appellate Court and consider the case at the Supreme Court directly. That motion is pending.