Ep. 335: Legal Update – August 2022

August 9, 2022

Our legal team gives updates on litigation and legislation happening throughout the states.

Jordan Zakery: Hello, everyone. Welcome to another Legal podcast with your EdChoice team. Today, we have Leslie Hiner and Lauren Hodge with us, and we have a lot of updates from around the country. Primarily, we want to start by talking West Virginia. And thankfully, we have Lauren with us, who not only has worked on the legislative side in West Virginia, but now also she has been working on the litigation.

Lauren, could you go ahead and give us just a little bit of background with the case in West Virginia and the most recent update?

Lauren Hodge: Absolutely. Thanks so much, Jordan. And so, for those that have listened to the podcast over the last few months, you’re pretty aware of the program. But if you’re just tuning in, just a little bit of history here on how we got here because, man, it is a procedural roller coaster out in West Virginia. And so, it started in 2021 when the legislature passed, what’s known as the Hope Scholarship Act. The Hope Scholarship, it was the most expansive educational savings account program at the time, with nearly 93% of students eligible in the state for an educational savings account, which as most listeners know, is a state’s share of funding per pupil that goes to the parent to execute a private choice. And so, an education savings account can be used for a wide variety of educational expenses that are approved, in this case, by the Hope Scholarship board. Those would include things like private school tuition, tutoring, educational services, educational therapies, those types of things. So it started in 2021 when the legislature passed this program.

Then months, and months, and months went by with nothing. No lawsuit. There was a notice of an intent to sue put in, but still months, and months, and months went by with nothing actually being filed until January 2022, which was just before the application period for the Hope Scholarship opened up, then a lawsuit came to bear in West Virginia. So, they filed in January 2022. And then, they waited another two months to file for a preliminary injunction saying that this program would cause irreparable harm, and timing was of the essence. So, they waited another two months to file that in 2022.

And so, then we went through numerous judges on this case at the circuit court level who recused themselves. And if you want to hear the whole epic saga, listen back to some of the previous LDEC podcasts. But judge after judge, after judge recused themself. And so finally, it wasn’t until July 6th, the Circuit Court of Kanawha County granted a preliminary and permanent injunction immediately halting the Hope Scholarship Program from the bench at the July 6th hearing for the preliminary injunction.

The attorney general waited as is norm and customary. In order to appeal a decision, you have to wait until you get that final order typically. And almost always the transcript that goes with that final hearing. So, the attorney general was waiting for the judge’s motion, or the judge’s final ruling. We had the transcript that was provided for nearly two weeks. And finally, went forward without this because there was no issuance of a written order from the circuit court judge who ruled from the bench a preliminary and permanent injunction. So, for nearly two weeks, without that issuance of a written order, the attorney general filed a motion to stay the injunction had a motion for expedited relief with the West Virginia Intermediate Court of Appeals on July 19th.

So a couple of things about that. The Intermediate Court of Appeals is a relatively new court in West Virginia. And by relatively new, I mean within the last few months, it has actually become operational. So, very new is what this court is. And this is really going to be kind of one of the first cases to test what that appellate procedure looks like, how this is going to work. This is filed with the Intermediate Court of Appeals. On July 22nd 2022 we finally got the order from the circuit court in the Kanawha County. And so, unsurprisingly, the findings of facts, conclusions of law are so iterative of what we have seen nationally and relies heavily actually on the Bush v Holmes case reasoning from Florida. So for those of you who have listened before, you may be familiar with Bush v Holmes, which is a widely panned decision out of Florida stopping a small school choice program in the panhandle state down there under the theory of this expressio unius.

So, essentially, the judge in West Virginia relied in part on this also, making many of the statements that we’ve heard that time and time again, and just put forth by opponents of these programs, that these programs are no accountability and ripe with fraud. And, at the end of the day, really undermining that parents know what’s best for their children, and can make a well versed decision for that child. The court finally came out with a ruling on July 22nd. The Intermediate Court of Appeals. So, if you remember, we have that motion to expedite that’s sitting there by their major court of appeals, they recently just ruled that they will not expedite it, but there is now a motion in front of them to stay the preliminary injunction.

And so, what that would do operationally to the program is perhaps pause the preliminary injunction from going in place. Because for those of you that may be looking at a calendar and thinking through how all this plays out in West Virginia, you know it is almost August 1st, schools are beginning. Some schools in West Virginia have already started. So, the timing of this and, unfortunately, the games afoot that seem to be being played out, really do one thing, they harm kids. And they harm those who had applied for a program, had been processed through the application, had been told that they were approved for this program, who made plans for the fall. And now, here we sit with days before school to start and over 3,100 families in West Virginia are scrambling. So, the real people here, who are hanging in the branches, those people are facing real ramifications of this.

So, we are following this case closely. Our hope is certainly that we see this stay go into effect of the preliminary injunctions that the program can at least be operationalized at least those parents, those children who had made plans for the fall, are able to access that program right. But we don’t know what’s going to happen. And this is the unfortunate piece to the litigation world. It’s the part that makes you want to bang your head against the wall thinking why do we have to play with kids? Why can’t we just have these legal battles, have these conversations, but do so in a timeline that respects those families who made those choices, and have those opportunities? But sadly, that’s not the way litigation works. And sadly, we don’t get to control our timelines.

So, where this sits procedurally right now is that we have it at the Intermediate Court of Appeals in West Virginia. So absent the Intermediate Court of Appeals, the traditional appellate process would be an appeal directly to the state Supreme Court. Opponents of the program were actually saying, “Well, they haven’t really appealed that yet correctly to the state Supreme Court. Therefore, there’s no standing in the Intermediate Court of Appeals.” So, we’re gonna see some procedural games afoot, I think again in West Virginia. But where we stand right now is the preliminary permanent injunction has been granted by the circuit court that is being vigorously appealed on behalf of the attorney generals, and then the intervener parents that are being represented by the Institute for Justice. And so, parents are watching with bated breath as the school year inches closer and closer.

Jordan Zakery: Lauren, thank you so much for pulling in not just the update itself and looking at the calendar, but really tying that in to the kids and how these litigation timelines affect the kids. Right now, you just mentioned 3,100 kids who are planning on having a scholarship. And they’re in flux right now. And, unfortunately, we have similar situations in other states, but we have great people working on it.

I want to turn to Leslie. There’s several states that she can give an update on including Kentucky, the Carolinas, Ohio, Tennessee, and Vermont. Leslie, I’m gonna turn this over to you. I think there’s been some updates out of Kentucky that you could start with. If you go ahead and just tell us what you’re hearing. And what’s going on throughout the country.

Leslie Hiner: Thanks Jordan. And I’d like to add to what Lauren had to say. This attempt by lawyers who oppose a parent’s right to choose a proper school for their own kids, they can be artful in their legal actions. I’m trying to be generous and nice here. But the bottom line is that we get into what attorneys called motions work. Filing motions for this, motions for that. You file a motion, you’re asking the court to do something. And then, you have to get a reply from the other side. And then, you may get a chance to reply back to that. And then, the court rules, all of that takes time. And the intent, of course, of the opponents is to deny this right of choice and education to parents. So, the longer that they can drag out these cases the better.

I think they must know that the odds are in our favor for winning these cases. The law is really solidly on the side of parents. But they do it anyway. It’s really intolerable, from our perspective, when you see so many parents who have such great needs. And the last case I’ll reference here today will be Vermont. And I’ll tell you a very personal story about Vermont, and why all this becomes so contentious, and so important.

So first, starting with Kentucky. In Kentucky, the case Council for Better Education versus Johnson. That case is, essentially, almost all the public school districts in Kentucky suing against their first in the nation tax credit funded education savings account. So lost at the trial court level, went directly up to the Supreme Court level. Briefing has been concluded in that case. So now, we’re just waiting for the oral arguments to be scheduled, which I would expect to occur sometime in the fall, which means that potentially we’ll get a decision in the Kentucky case before the end of the year.

Next, in North Carolina, this is a case that was filed in 2020. This is Kelly versus State of North Carolina. Another one of those where there have been plenty of motions. Now, there is a motion at the trial court level still, we have not moved in these last couple years past the trial court level. There’s a motion to transfer to a three judge panel that is the procedural issue in North Carolina, which we expect to happen. Once that happens, then maybe this case will be able to proceed currently it’s in the Wake County Superior Court.

And next, we come to Ohio. The Ohio case was filed in, I believe January of this year. And, again, also more motions in Ohio than I think I’ve seen in any case for a long time, to be quite honest. Currently, the motions that are pending are a motion to dismiss the case, and a motion for judgment on the pleadings to conclude that there is no merit to this case. So, that’s in progress that is in Columbus, Ohio at the Franklin Court of Common Pleas, which is also the lower court, the trial court level.

Now, the interesting part about this… Oh, and I should say too, this is Columbus City School District versus Adams. Again, you have not all the public school districts in Ohio, not by a long shot, but there are just a little under 200 of those districts that have joined the case. We expect that this case will probably go on for the next two, or three years. It is, currently, scheduled to have a trial on this case early in 2023. But, of course, a lot will depend on how these motions are resolved. So, we’ll be talking about Ohio for a long time.

Next, we have South Carolina. This is a case that was also filed in 2020, Bishop of Charleston versus Adams. This one is in federal court and, currently, it sits before the Fourth Circuit Court of Appeals. The briefing in this case has just finished. And so, we’re expecting the federal court to schedule oral argument sometimes soon. I expect that oral argument may be in the fall. And I also expect that no matter who loses this case, the person who loses will appeal this up to the US Supreme Court, ask them to take the case.

I should also note, I forgot to mention in the Ohio case, quite certain, that even though this case is going to drag out this year and next with motions, the ultimate arbiter of that case will be the Ohio Supreme Court. So, you can expect that to be appealed as well.

In Tennessee, Tennessee is a good news, bad news story. The Tennessee case went up to the Tennessee Supreme Court, but only on one issue. And that was the issue of home rule, whether their ESA pilot, Thatcher violated the home rule provision, which essentially says is that legislature can’t target certain areas of the state for legislation. And the Supreme Court said, no, this is not one of those cases. This is not a targeting. This is a program that applies only in Shelby County and in the Metro Nashville area. However, this was set up to be, and they call it this, a pilot program. Presumably, if this works well, then it could be expanded to other areas of the state. And that’s perfectly fine says the Tennessee Supreme Court.

Well, there are more issues, however, that have been complained about by the opponents. And so, now, this case has been sent back down to the trial court to litigate the remaining issues. Well, what’s happened is that as the case was going up to the Tennessee Supreme Court on the home rule issue, a preliminary injunction against the program was issued by the trial court and it was upheld. So they haven’t been able to start this Thatcher program in Tennessee at all. However, after the Supreme Court ruled, then that was lifted. And the governor of Tennessee, who is very eager to get this opportunity into the hands of parents, started the process to get the program up and running. So, again, every good deed can be punished in these cases and usually is. And so, the opponents have now filed a motion for a preliminary injunction again, so that this Thatcher program cannot begin until it works its way all the way through the Tennessee Supreme Court for a second time. So, that’s pending.

Okay now, finally in Vermont, this case also was filed in 2020. This is Vitale versus Bellows Falls Union High School. And this case is different from all the rest. And I think it’s significant for you to know about. Vermont is the first school choice state. They adopted town tuitioning, which is a localized form of vouchers, in 1869. And that program has continued for all these years. But this is what’s happened, there are some towns that have their own schools, and there are other towns that are just too small, and they do not have their own schools.

And so now, the law has morphed to becoming the situation where if you live in a town that has its own school, you have to send your child to that school. The state will pay for you to send your child to that town’s public school, nowhere else. If you live in a town that does not have its own public school, then the state will pay for you to attend the school of your choice. So, children can attend private schools nearby, or even out of state, or out of country. It’s really an excellent program for families that need a variety of options.

So this is what happened, the plaintiff, Sarah Vitale, has a son who has severe disabilities. And they live in a town that has its own school, so sent the boy to this school. And there were times when this child, who is in a wheelchair and cannot move the wheelchair on his own, was left in the bathroom for over an hour. There were times when there was a fire drill at the elementary school, and they left her son in the school building because they didn’t want to have to deal with him, and the extra work it takes to get a child in a wheelchair outside of the building. You can imagine what happened to that poor boy, and how stressful, and horrific that would’ve been.

Well then, that was sixth grade. In seventh grade, there was an opportunity to send her child to a private school because the town will tuition kids to go to different schools in seventh and eighth grade. Seventh grade came along and the mother sent her son to a nearby private school and suddenly, everything was fine. This child was valued like he was the most important student in that school. And he really began to thrive. There was such a turnaround for this child. It was just tremendous. And I can speak to this because I’ve met Sarah, and met her son. I’ve seen this happen personally. And it’s just a wonderful thing to see a child thrive like that. However, now, it’s time to go on to high school, and go back to the public school. This is just a terrible prospect for them, and for her son to think about going back to a situation where he will not be valued, and he’ll be locked in a closet because he’s too much bother.

So, the lawsuit was brought to say that the right of choosing a school for your child should not depend on geography. It shouldn’t depend on which side of the town line you live on. You live in this town, you get choice. If you live half mile down the road in another town, you don’t get choice. That violates the very spirit of town tuitioning as it was first adopted in Vermont.

I’ve done a lot of research into the early days of education and town tuitioning in Vermont. And I have to say that Vermont’s version of education was different than other states at the time. Right at the time when other states were looking to adopt the more industrial German model of education, packed kids in a classroom, have ’em sit still in lines, closely watched, that sort of thing. Instead, in Vermont, they allowed for a lot more innovation and flexibility in education, to their benefit, their educational system has been better than most over now, hundreds of years.

So, the case I think has tremendous merit. And we’re really hoping that the Vermont Supreme Court will go back to the founding of the state, their state constitution, when they first adopted town tuitioning to see that they have something of great value to all the parents who live in the state of Vermont. And they shouldn’t be excluding any parent in the state of Vermont, just because of where they happen to live.

So that case now, we’re at the briefing stage for the Vermont Supreme Court. The state attorney general will file his brief by the end of August. And then, I expect, oral argument will probably be sometime late this year.

Jordan Zakery: Leslie, thank you for those updates.

As we conclude and get to the end of this podcast, I want to just turn back to both of you one more time, and see if you have any final thoughts you want to leave our listeners with as we head into the end of summer, and head into fall. Any final thoughts for our viewers, and our listeners regarding litigation throughout the states?

Leslie Hiner: I would say, Jordan, that in all of these cases there’ll be a lot of claims made, to Lauren’s point, claims about money, and the adequacy of it, and curriculum, and oversight, and a lot of this. But what we find is that those arguments tend to be real straw men. They’re just ways to try to pick apart a program that otherwise is just fine, and has plenty of accountability. Of course, the parents being the first, number one, accountability. If the school’s no good, the parent can take the child someplace else if you have choice. That enforces accountability pretty directly, and very quickly.

But what becomes the most important element to all of these cases is that the parents have their own individual rights to decide the destiny, and the education of their own children. When a state has decided to honor those parents and to allow the parents to use the money that the legislature has appropriated for that child’s education, putting that control of the funds, and this decision-making for the child’s education into the hands of the parents is a very basic human right also, that we should never, never turn our backs on.

The purpose of education is for kids to learn so they can become successful adults. That’s it. And the best way to make that happen is to give the parents that flexibility, to make sure that the child goes to a place where the child will be comfortable and able to learn.

Lauren Hodge: And I think Leslie brings up such a great point. And the one that I always remind myself of, litigation is messy. And if there’s one thing that we know it’s that it’s only becoming more and more common, it’s only becoming more and more difficult. Success, as we’ve seen it as Milton Friedman’s idea of universal school choice really begins to come to play in places like West Virginia, more recently in places like Arizona, it puts a target on backs.

And so, we know that these lawsuits are gonna happen. We know that they’re going to continue to happen. And as frustrating as it is, and as easy as it would be to throw the hands up in the air and say, “Enough with it, I’m not dealing with it anymore, “I think the final takeaway is to remember behind every faceless litigation are thousands of real faces. Thousands of kids who want to use these programs. Thousands of kids whose lives can be profoundly impacted for the better. And it’s easy to get caught up in the nastiness of litigation. And it’s easy to get caught up in the politics of it all. But if there’s one takeaway that I have it’s to remember behind every single case there are thousands of faces behind it. And those are the faces that keep us going. Those are the faces we stand shoulder to shoulder with, with LDEC, and we’re proud to do so.

Leslie Hiner: That’s well said, Lauren, right on point.

Jordan Zakery: Absolutely Lauren. I appreciate your humanistic approach to the law. I think that’s very special. And as we wrap up, again, shout out to LDEC for the wonderful work you guys are doing. For our listeners, please make sure to tune in next month, we’ll have a new podcast with these two wonderful advocates. We look forward to seeing you guys next time.