BRIEF: School Choice in the States – November 2020


New Jersey

Lawmakers introduced a couple of coronavirus-related relief measures for families conducting remote learning in the form of state income tax benefits. SB 3104 provides a 25 percent tax credit for qualified education and child care expenses, the former of which includes materials necessary to support remote instruction. AB 4946 is the New Jersey Assembly companion bill.


Last month, the Ohio House and Senate passed and Gov. Mike DeWine signed SB 89, a bill that expands eligibility for Ohio’s Income-Based Scholarship Program from 200 percent of the federal poverty line to 250 percent, or about $65,500 for a family of four. The bill also changes the eligibility for the state’s EdChoice Scholarships, which had been based on whether a student was assigned to a low-performing public school. Now students are eligible if they are assigned to a school in which at least 20 percent of the student body made up of Title 1 (low-income) students, and its academic performance was ranked in the lowest 20 percent statewide for the previous two school years.



On Nov. 2, plaintiffs Republican senators and several businesses filed a cross-appeal in Settelmeyer v State of Nevada, urging the Nevada Supreme Court to hear this case wherein Nevada’s ESA is threatened by repealThis followed the defendant State Legislature’s appeal to the Nevada Supreme Court that was filed on October 13.

Preciously, on Oct. 7, the First Judicial Court for the State of Nevada in and for Carson City ruled in favor of Republican state senators and several Nevada businesses in Settelmeyer v State of Nevada. Republican Senators alleged that the Senate majority leaders violated the Nevada Constitution when they allowed a bill to pass by a simple majority while the state constitution requires a two-thirds vote. This bill is significant because Nevada’s best-in-the-nation education savings account program (ESA), that has never been funded, was repealed in the bill being challenged by Republicans. Sadly, the court severed portions of the bill related to raising revenue—holding those provisions to have been passed in violation of the constitution – but ruled that the portion of the bill repealing the ESA was not in violation of the constitution.

Pending before the Nevada Supreme Court.

Settelmeyer v State of Nevada, Case No. 19-OC-00127-1B

New Hampshire

On Nov. 10, the Superior Court in Merrimack granted a scheduling request by the parties to Griffin vs. New Hampshire Dept of Education, the first “post-Espinoza” lawsuit filed by the Institute for Justice, seeking to enforce the June 30 U.S. Supreme Court ruling in Espinoza vs. Montana Department of Education in Vermont. New Hampshire’s town tuitioning voucher program currently does not allow parents to choose religiously affiliated nonpublic schools. Motions and replies will be filed with the court between Nov. 17, 2020 and Jan. 19, 2021; thereafter, the court will schedule on cross-motions for summary judgment as soon as the court has an opening on its calendar in early 2021.

Pending before the New Hampshire Superior Court in Merrimack.

Griffin vs. New Hampshire Dept of Education, Merrimack Superior Court, Docket #217-2020-CV-00480.


On Nov. 24, the Tennessee Attorney General filed an appeal to the Tennessee Supreme Court, asking the court to consider the adverse decision delivered by the Tennessee Court of Appeals in The Metropolitan Government of Nashville and Davidson County et. al. vs. Tennessee Department of Education et. al. The State seeks to overturn the Court of Appeals ruling that the Tennessee ESA Pilot program is local in effect, applicable only to Davidson and Shelby Counties in their governmental capacities, and as such, is unconstitutional under the Tennessee Constitution Article XI, Section 9, Home Rule provision, which protects local control over local legislation. The Tennessee Supreme Court has discretion whether to accept the case; if rejected, the adverse of the Court of Appeals will stand.

Pending before the Tennessee Supreme Court.

The Metropolitan Government of Nashville and Davidson County et. al. vs. Tennessee Department of Education et. al., Tennessee Court of Appeals, Case number M2020-00683-COA-R9-CV.