Ep. 298: February 2022 Legal Updates

February 15, 2022

We chat with several EdChoice team members as they give us an update on the legal happenings in the states.

Jordan Zackery: Hello, and welcome to another episode of our EdChoice Chats. I’m Jordan Zackery, and I’m a member of our state team. I’m joined here with Leslie Hiner, our VP of legal affairs, and Lauren Hodge, the newest member of the LDEC legal team. I’d like to give Lauren a quick moment to introduce herself and tell us about how she got on the legal team and the type of work she’s going to be doing on our LDEC team.

Lauren Hodge: Thanks so much, Jordan. And it is my pleasure to be joining a new podcast with a very good friend of mine, Leslie Hiner, who I have been humbled and grateful to learn from and to work with at EdChoice coming up now at five years. And let’s see, how did I get over to LDEC? Leslie, I think that was destined in the stars from the beginning. I think it was within moments of meeting each other, eventually, I would join you.

For those of you who perhaps listen to the state updates podcast. You know that I’ve been working with EdChoice for numerous years, coming up on five, actually. And I’m privileged to have had this wonderful opportunity working in the states, helping them as they work towards legislative and coalition practices to empower parents and families to have the greatest opportunities possible.

My former background prior to coming on to the state team with EdChoice is that I’m an attorney. I’m a litigator actually by trade and hung up my litigation hat to come over to EdChoice and join the special interests, the nonprofit work and have been so extremely fulfilled and gratified by this line of work. But kept navigating to our dear old litigation and the needs that we see in the states. As you know, if you’ve been watching what happens in the states over the years, you know that litigation is just a part of what happens. You know it’s a part of what we do with EdChoice, where Leslie has been keeping you up to date. EdChoice has been working alongside partners to make sure that the actual facts are out there when litigation happens, that parents interests are actually put in front of the court. So, we really work very diligently.

So, Leslie, as she can attest, litigation has gone nowhere but up over the years. So, with that, we needed some additional hands on deck and perhaps some polite requesting on my part, but I’m happy to join the legal team, dealing a lot with what’s happening in the states and the legal challenges that they’re facing, legal reviews for bills that they’re looking at, advice for local partners as they navigate these sometimes treacherous, sometimes scary, sometimes litigious waters that they’re in. I’m happy to be here and can’t say enough great things.

Leslie Hiner: Thank you, Lauren. So, this is Leslie, and I am just so pleased that Jordan is with us. Jordan, we should also mention is also an attorney. So, you have three attorneys here and that always gets interesting. So, Jordan is on the state team. Lauren now is my partner with the Legal Defense and Education Center. And I just couldn’t be more pleased. Please, for those of you who are listening, please know that we have three attorneys here at EdChoice. And for those of you who have some state specific questions, Lauren should be your first point of contact, we’re working very closely together because she’s fun. Just know that she brings a lot to the table, highly qualified. She’ll be of great service to everyone, just as Jordan is.

Today, there’s a lot to talk about. First of all, in the state of Tennessee, this case has been kicking around now for a while all of last year, it was fully briefed, we had oral arguments. However, quite sadly, one of the justices of the Tennessee Supreme Court died. So, after she died, then there was time for mourning, time for looking for replacement. Then, the governor appointed a new justice. And so now, in all fairness to the new justice to get fully up to speed on this case, they’ve decided that they will rehear oral arguments.

The briefs that were filed in the case will not be repeated, but they will be doing oral arguments again this next month in February. So, that said, I think we should expect to see a decision out of the Tennessee Supreme Court regarding the constitutionality of their ESA voucher sometime yet this year. Again, we’re dealing with a new justice coming onto the court. So, it may take a minute for the new justice to get acclimated. So, I don’t think that we’re going to see a decision in a hurry, but I’m pretty sure this year.

Keep in mind that in Tennessee, the issue that is currently being considered by the court is limited to the home rule issue. There’s a home rule provision in Tennessee’s constitution that says that the legislature cannot pass laws that target counties. And in this case, the new voucher only applies to two counties. And so, that’s the issue.

There is another lawsuit that is still pending, that goes into more of the typical arguments that we see about funding and uniformity and that sort of thing. So, whether or not that one goes forward will be dependent on how this case ends up. So, that’s Tennessee.

Next, we go onto Kentucky. So, Kentucky has cleared the trial court level. However, now the request has been made to the Kentucky Supreme Court to take the case directly up. And in Kentucky, you may be aware that they’ve had some tragedies there in Kentucky, weather related. So, a lot of the had been slowed down a bit in Kentucky, including the courts. So, we don’t have a decision yet from the Kentucky Supreme Court, whether or not they’ll take the case directly.

We lost this case that was against Kentucky’s new tax credit funded education savings account. But I have some hope for this case, because the ruling in the case was just a little bit off. The court decided that tax credits are appropriations. They are not. That is settled law for many decades in both state laws and in federal law and the tax law. So, we’ll see how the Kentucky Supreme Court may see that. But that is the main issue in that case, whether tax credits are in fact appropriations in the legislature. And if so, whether they are then subject to many other constitutional provisions. I would look for the court to make some decision about that, I’d say probably yet this spring sometime before summer is the timing on the Kentucky case, which is the name of that case is the Council for Better Education versus Johnson. The Council for Better Education is an Association of almost all of Kentucky’s public school districts.

Then, we head on to Ohio, to start the new year in 2022, litigation got off to a big start. In Ohio, we have a case that is brought by the Columbus School District, Columbus, Ohio, School District. They are the lead name on this. But there are actually 74 different school districts in the state of Ohio that have brought this lawsuit against the state. They really don’t like vouchers. Now, for those of you who know a lot about the voucher issue and school choice, and maybe you’ve been following this for some years, or maybe you’re old timers, like I am, having been active in this since 1980s. You’ll wonder what the heck’s going on in Ohio, because we already have a landmark decision of the US Supreme Court that was handed down in 2002 that said that the Cleveland Voucher program, vouchers in Ohio, were absolutely constitutional.

But there’s a group in Ohio, the Ohio Coalition for Equity, they never liked that decision very much. And ever since that time, and since the voucher program was first passed in 1996, they’ve been unhappy about it. So, they are the group that has motivated the school districts to bring forward this litigation. They have a number of issues that they have raised in this case, including uniformity, that there needs to be full funding of public schools and only public schools, that no religious schools should be participating in the voucher program.

But primarily, this case and this group bringing this case centers on the funding issue. There is a state funding issue that is very specific to the state constitution. Something that was not considered by the US Supreme Court, because it’s not a federal issue. At least that’s the way it looks right now. We’ll see how the courts in Ohio look at this.

What you need to know about this case is that nothing’s going to happen for quite some time. During the course of the next year, the lawyers who are involved in this case will be doing discovery. For those of you who are non-lawyers, discovery simply means that those people bringing the case will be looking at private schools in Ohio under a microscope. They’ll be looking at homeschoolers under a microscope. They will be trying to dig up evidence for the court.

And of course, on our side of the case, we will be also doing our due diligence to gather together information that is in support of the voucher program in Ohio. But the court has actually set a time when they will set the first trial for January 3rd of 2023. So, don’t expect any litigation from this Ohio case until next year. But be forewarned, you will probably hear a lot of chatter, a lot of allegations in the press, that sort of thing, during the course of the next year. Sorry, that’s a little irritating to all of us, but that’s just the way it will be with this Ohio case.

Now, the Ohio case, as I indicated, there’s 74 public school districts in Ohio that have brought this case. I might also add that Ohio actually is my original home state. I was born in Ohio. So, I have a special interest in this case. I grew up in Canton, Ohio and the Canton Public School District is one of those districts that is involved in this case. However, the public school that I attended, the Jackson School District is not part of this case. So, I’d just like to give them kudos and pat them on the back.

So, the case though, what I like about this case is the fact that it is really grounded in the state of Ohio however, the West Virginia Case is most decidedly not. On January the 19th, yet another lawsuit was filed against, of course, the best and biggest school choice program in the country, the West Virginia Hope Scholarship. It’s interesting to note that in the Ohio case, they cite the West Virginia Hope Scholarship. And I think it kind of scared them, “Oh no, if West Virginia can do that, then Ohio might do that.” Yes, that’s true. And they’re a little worried.

But what is so interesting about the West Virginia case, which is Beaver versus Moore, in this case, the lawyers who are bringing this case are from Los Angeles, New York City, Washington, DC, Newark, New Jersey and Montgomery, Alabama. And there are three public school families who have signed up to be their clients. But there is little question that this case, which these lawyers have also partnered with public funds, public schools, which is a national campaign against school choice, that this is a national effort by this group to bring down opportunity and education for families in West Virginia.

We intend to vigorously defend this program along with our other friends, there are many friends who will want to defend these families in West Virginia, who so desperately want these Hope Scholarships. So, to talk about this, Lauren will jump in here. Lauren spent a lot of time with our friends in West Virginia. She knows a lot about this state and I think she’s a good person to give the background here.

Lauren Hodge: Thanks so much, Leslie. So, I think, for anyone who followed EdChoice’s work and perhaps this is to the other podcast, they know that West Virginia has absolutely set the standard thus far on what an educational choice program could look like. I don’t think that this litigation comes as a surprise to any of the local partners or national partners who have been working to empower families in the great state of West Virginia.

But just for those listeners who maybe are new, a little bit of background into the program itself. So Hope Scholarship is what Leslie’s referred to. And it really is one of the best models for an educational choice program that we’ve seen. What it enables is for parents to take their student share of state aid and use it on a whole variety of expenses that includes private school tuition, but also tutors, also educational therapies and a whole host of other educational options that the board overseeing the program can approve.

What makes it truly transformative, well, that type of an education savings account program I described has been in existence for numerous years. What makes West Virginia’s Hope Scholarship so potentially transformative is the sheer breadth of eligibility. It is available for every single child in grades K through 12 in West Virginia who are previously in the public school system for 45 days. It’s available to every child entering kindergarten.

So, I’m not surprised when we hear that there are attorneys from Los Angeles, New York City, Washington, DC, and all across the country coming in to potentially stall this program, because this is a potentially transformative program. This is available to all of the students so that every child has the opportunity to receive an education in the manner in which works best for that child. And if there’s one thing we’ve seen through the pandemic, if there’s one thing we’ve seen time and time again, it is that parents and children are looking for what works best for them. So, West Virginia heard that call from the parents, they answered the call with a very bold proposal in the Hope Scholarship.

So, really quickly kind of unpack those claims. What we have are three central arguments that revolve, it will not surprise you to hear, around money. And the big question and the big concern that we hear, no matter how big the program or how small the program, it is that this is going to kill the public school system. There’s no chance that these people can survive. It’s going to be awful. So, we have three different versions of this type of argument. The first one is an argument the legislature can only fund a system of free public schools. According to the claim, they’re saying that it violates the state constitution, article 12, sections one, four and five. So, what they’re saying here is that, sure, the legislature has a duty to fund schools, but that can only be a duty to the public school system. So, that’s their first argument.

The second argument that they make here around money is that the Hope Scholarship will reduce funding to public schools and that you can only reduce the funding to public schools if there’s a compelling state interest. So, for those that might be attorneys, we’re talking about these strict scrutiny standard here. Narrowly tailored to a compelling state interest. So, what we have here is them saying that this reduction of money, it doesn’t meet that test.

The third kind of version of a financial argument here is that they’re saying West Virginia state constitution mandates that the school fund, which is their education fund in part in West Virginia, can only be used for public school and no purpose whatsoever. So, in that line of argument, it’s not an interest to educate children. It’s not in the state’s best interest that every single child has the opportunity to reach their fullest potential, to gain their highest educational capacity. Three different financial arguments. We hear this time and time again in this litigation, these are the tried-and-true arguments. And I don’t think, for anyone who’s been following this issue for a number of years, it will come as any surprise to you.

Then we have two other arguments that are of a non-financial flair, I will say. And that first argument is essentially that the Hope Scholarship board, which would be the entity that will oversee the actual Hope Scholarship, which is comprised of both governmental appointees, state department of education appointees, parent appointees onto this board, that they don’t have the authority to utilize the funds in the way that they’re described.

So, basically what they’re saying is that, because this is using public dollars, this is not allowing the State Department of Education to utilize their dollars in the way that they’re supposed to and therefore the Hope Scholarship board cannot be allowed to direct this money. So, that’s another argument that they brought. I think that’s a little bit more novel. I certainly don’t have the breadth of knowledge that Leslie does going back to the ’80s, but it’s the first time that I’ve heard that argument brought up on a national scale.

And then, the last argument that they make here is that the Hope Scholarship creates some sort of special law and treats students receiving public funds for the ESAs differently than students receiving public funds to attend their public school. And this is an interesting argument that, I will admittedly say, take some cognitive dissonance to get your head around, but essentially that argument that there are no private schools near a home in West Virginia, and so, because there’s no other options, this law treats them differently. Despite the fact that every single child can avail themselves of the scholarship, despite the fact that there’s no requirement that this actual program be used for a school, it can be used for a variety of educational purposes, including online, including micro schools, including pod learning, including online schooling.

So, there’s this argument here that they’re making that it creates some sort of special law, because there may not be a uniformity of option. And I find that so interesting, because that’s what the whole school choice movement is about. Is that a uniform option, it doesn’t work. And for anyone who’s had children during the pandemic or nieces and nephews, or knows people with kids, ask them how the last two years in education have gone. You’re going to meet some parents who maybe say, “I loved the online education, my child thrived.” And then you’re going to have some parents that say, “That was the worst 18 months of my entire, my child had a terrible time, but you know what? They did really well one on one.” Or, “They did really well with a tutor.” Or, “I didn’t realize that this was what my child was learning, and so we’re working to accelerate a course here.” Or, “We realized they need some more help there.”

So, it’s just this very kind of interesting argument that, because you don’t have the same option available, it can’t possibly be equitable or right, when in reality, the option that we really want is for just children to have an equitable opportunity to learn. So, this is kind of the lawsuit that has been brought. We are not surprised by it, I don’t think. I think that everybody kind of expected this. If you follow the state podcasts from EdChoice, you knew that this was coming, West Virginia requires notice to the state if you’re going to Sue them. So, this certainly isn’t a surprise. I think that families are going to hopefully have their opportunity to talk about this program and to explain why it is just so very important to them. So, Leslie, you’ve been in this game longer than I have. I’d love to know what your thoughts are, and certainly correct me on any of the arguments that I might have made mistakenly.

Leslie Hiner: Lauren, you were right on as usual. I will say that the arguments that they’ve made, many of them are arguments we’ve seen before. And I will say, I think the normal, garden-variety arguments are the ones that will be the core arguments going forward with the court, the uniformity question and the funding. It’s always all about the money with these lawsuits. You’re right about that. But we’ll need to spend a considerable amount of time making sure that hard facts and truth went out in this case.

There are a couple things that really bother me about this lawsuit and the complaint that they filed. The first is this, that the three families that filed, I think all three of them have children that have some kind of special needs, and the lawyers actually allege that there are no private schools in West Virginia that accept children with special needs. That’s false. That’s about as false as it can be. And what bugs me is those national lawyers know it, but there’s their allegation. So, we’ll need to spend some considerable time speaking to that.

They also know that there have been plenty of examples from across the country where states have vouchers and parents of children with special needs, who tend to be very active parents anyway, active in their kids’ education, they’ve started their own schools. They’ve partnered with universities and with hospitals and local foundations to start their own schools, to serve the unique needs of their kids. And parents in West Virginia will be able to do the very same thing with this very excellent Hope Scholarship.

The second thing that really bugs me is this, we continue to see this allegation, that the reason why state constitutions say that the legislative should fund education is because there must be public schools, that the point of the language in the constitutions is to fund public schools.

Well, seems to me, that’s a little bit of putting the cart before the horse. Consider this, when state constitutions were first adopted, that was quite a long time ago. And normally, attending school was not mandatory. So, those children whose parents thought they had a need to go to school, had a public school that they could go to. But even when going to public school was made mandatory, in the early days, when these constitutions were adopted, there were plenty of kids who wouldn’t have to go to school, or they wouldn’t have to go full time, because there were agrarian needs, they were needed to plow the fields, they were needed by their families. So, that’s all this started, that public schools should fulfill a need for education for the children in their state. That’s the need. The need is not to fund a school or to fund a system. The need is to provide education for a child.

Now, fast forward to today, where every child has to attend school, it is mandatory, you don’t get to skip it because you live on a farm or have some other kind of needs. The idea that public schools can serve every child’s needs well is really misplaced. And it’s proven to be a false idea over and over and over again. Any parents who are listening that may have two children, you may notice that one child learns a little differently than the other child. That’s my personal experience as well. It’s a challenge.

But this really bothers me because by making the argument all about the money, then we miss what’s really important, which is, are we providing education that works for children or are we not? And are we comfortable with saying that children can only attend public schools, even if they are not getting the education that they personally need?

Are we okay with saying that we’re going to discard certain kids if they don’t fit in to the public school where they’re zoned? Well, I, for one, I am not okay with that. And as a person who grew up in the state of Ohio, and I still love my home state, I am offended to think that anyone would make this argument that the Ohio state constitution was created to build a system of schools rather than to actually serve the children of that state. That comes first. So, we’ll be emphasizing that quite a bit. So, you’ll hear a lot about that.

Now, finally, there is one other piece of information that I want to share. Just today, Justice Breyer of the US Supreme Court announced that he will be retiring from the Supreme Court. Now, I have gotten a couple questions from people who don’t keep tabs on the Supreme Court on a regular basis, and wondered about the Carson versus Makin case, which is the big case out of Maine that we’ve participated in right from the beginning, which is the question of whether or not parents in the state of Maine can use their vouchers to send their children to private religious schools.

Justice Breyer’s retirement will not be effective until after this term of the US Supreme Court. What that means is that all of the cases that are currently before the court, including the Carson versus Makin case, will be decided including Justice Breyer, they’ll be decided before he leaves the bench. So, yes, he will be participating in that decision. The good news is that then nothing changes. The case is not knocked off course. It doesn’t get extended another year. Sometime between now and the 1st of July, we’ll get a decision in that case.

Jordan Zackery: I think we covered a lot, and I know that we have two legal eagles now that are going to be busy, busy, busy, especially as legislative sessions wrap up and potentially we see new programs. And as much as I hate to say it, as we tend to get more wonderful school choice programs, litigation tends to follow. So, make sure that you tune in within the next couple months, we’ll continue to have legal updates. Also, make sure to check out our other podcast if you’re looking for updates on what’s going on throughout the states, we have a state blog as well. And Leslie also has a legal update blog for you to check out. Additionally, I’d have to be remiss if I didn’t say this, but you can always assist and offer your resources to the great work Leslie and Lauren are doing by going on our website. So, before we wrap up, I want to turn it over to Leslie and Lauren and see if they had any final thoughts or comments for our viewers.

Leslie Hiner: Well, first, I’d like to thank you, Jordan, for hosting today. We certainly enjoy having you with us. And also a big welcome to Lauren Hodge for joining the Legal Defense and Education Center, which I’m really thrilled about. And for our listeners, we have decided to attempt to do this podcast on a monthly basis going forward. As Jordan said, and he’s right, there’s a lot of legal action that’s happening. And we fully understand that the law can be pretty confusing, even for lawyers who have been at it for a long time, let alone people who are not lawyers.

So, we’ll do the very best that we can to try to answer questions and bring you the information that is the most current and most relevant to these programs. And certainly, keep in mind, again, if you have any questions or any questions that you would like us to address on the next podcast, then please just reach out to us, send a quick email or call into the office, and we’ll be happy to speak with you or answer your question on the next podcast. Lauren, anything from you?

Lauren Hodge: Thank you, Leslie, for taking me on. Thank you, Jordan, for hosting this podcast and for Jacob for all the wizardry that goes on behind the scenes in making these podcasts possible. And like you said, Leslie, it’s going to be a year. So, strap in, buckle up, get ready, because it’s going to be a litigation wild ride. That’s for sure.