BRIEF: School Choice in the States – September 2021



An amendment to HB 1253 was offered by Rep. Curt Sonney and voted on by the House. The amendment was not adopted. The vote count was 94-105. HB 1253 gives any student whose school does not offer full-time, in-person instruction, a tuition voucher worth the average per-student state subsidy for their district. The amendment further offered a voucher to any student in the Commonwealth who is not comfortable sending their child to a school-based on its respective COVID-19 protocol. It also restricted the proposed program to one year period.



On September 16, the Franklin County Circuit Court in Frankfort, Kentucky, heard oral arguments in Council for Better Education v. Johnson. This case was filed by almost all public school districts in Kentucky against the Commonwealth’s first in the nation tax-credit-funded education savings account, named Education Opportunity Accounts (EOA). Joshua House of the Institute for Justice presented a vigorous defense on behalf of parents intervening in the case who seek educational options EOAs will provide. Counsel for the school boards affirmed that “students who are lucky enough to participate in the program” would receive “additional advantages in the educational endeavor” but alleged that Kentucky’s constitution requires that all children receive the same education. Perhaps the solution is for Kentucky to make EOAs available to every child in the state so that all students may have the “additional advantages” offered by education chosen freely by their families.

The judge hearing this case indicated that a decision in the case would be delivered on or before October 11, 2021.
Council for Better Education v. Johnson, Franklin County Circuit Court, Case #21-CI-00461


On September 3, Michael Bindas of the Institute for Justice filed his main brief before the U.S. Supreme Court in Carson v. Makin, the case out of Maine challenging Maine’s prohibition against a parent’s right to choose a religious school, that openly expresses its faith, using voucher funding from the state’s town tuitioning program which was enacted in 1873. On September 10, Leslie Hiner filed an amicus brief before the U.S. Supreme Court in support of parents bringing this case; EdChoice was joined in the brief by the Maine Policy Institute. Thirty-two additional amicus briefs in support of parent plaintiffs were also filed. You can find these briefs and other filings in this case here.

Maine will file its brief in opposition on October 22; amicus briefs in support of their side of this case will be filed October 29.

On September 20, the U.S. Supreme Court scheduled oral argument for December 8, 2021. Only attorneys arguing the case, some members of the press, court personnel and the Justices will be permitted in the Courtroom, but anyone may listen to oral arguments. The Court intends to provide a live feed of oral arguments, which will be at 10am Dec. 8 for the Carson case. As of this date, live audio of the arguments may be accessed via this link.
Carson v. Makin, U.S. Supreme Court No. 20-1088.


On September 9, the U.S. District Court, Maryland, ordered the parties in Bethel Ministries v. Salmon, the case challenging exclusion of certain religiously affiliated schools from that state’s voucher program, to produce ex parte letters to the judge fully explaining their positions regarding possibility of settlement in this case. Those letters and supporting documents are due to the Court on October 15, 2021.
Bethel Ministries v. Salmon, Civil Action No. 1:19-cv-01853-SAG


On September 23, the Mackinac Center Legal Foundation, representing parents and the PACE Foundation (Parent Advocates for Choice in Education), filed suit in the U.S. District Court, Western District of Michigan, Southern Division, challenging constitutionality of Michigan’s Blaine Amendment. Michigan’s Education Savings Plan (MESP) was fashioned under the federal 529 Plan, which allows tax benefits for individuals who save money to pay K-12 and college tuition in subsequent years. However, Michigan’s Blaine Amendment prohibits any Michigan tax benefit to fund private, K-12 expenses and tuition.
Hile v. Michigan, U.S. District Court, Western District of Michigan (Southern Division (1)), Case No. 1:21-cv-00829-RJJ-SJB


On September 24, Justice Cornelia A. “Connie” Clark of the Tennessee Supreme Court passed away following a short battle with cancer. Justice Clark and the rest of the Court heard oral arguments on June 3, 2021 in Metropolitan Government of Nashville and Davidson County v. Tennessee Dept of Education, the case challenging Tennessee’s Education Savings Account Pilot Program; their decision in the case is pending. The Court has not yet announced whether the case will be decided before or after the Governor appoints and a new Justice is approved to fill the opening on the high Court created by the untimely passing of Judge Clark. The Tennessee Governor’s Council for Judicial Appointments will consider applicants for the position, hold a public hearing, then refer three names to the Governor for consideration. The Governor will present his selection for the Supreme Court to the state legislature; legislators must vote to confirm the Governor’s selection before the new Justice may assume a position on the bench.

EdChoice offers condolences to the family of Justice Clark.
Metropolitan Government of Nashville and Davidson County v. Tennessee Dept of Education, Tennessee Supreme Court, Case No. M2020-00683-SC-R11-CV

West Virginia

On September 29, Mountain State Justice on behalf of two public school teachers, one of whom is president of the local teachers union (Monongalia County chapter of the American Federation of Teachers), sued to block creation of charter schools unless and until voters are given the opportunity to approve or deny the new program, which they allege is required by the state’s constitution. Although Mountain State Justice had earlier informed the state that it intended to sue both charter and ESA programs, this current litigation does not involve the Hope Scholarship ESA. As of this date, no litigation has been filed against the Hope Scholarship program.
Brunett v. Blair, Circuit Court of Kanawha County, West Virginia, Civil Action No. 21-P-340, 21-P-341