Ep. 365: Legal Update – March 2023

March 28, 2023

Need an update on the current litigation happening in school choice? EdChoice members, Chantal Lovell and Leslie Hiner, have your back. The two share the latest legal updates in the states, including Vermont and Kentucky. 

Chantal Lovell: Hello and welcome back to another edition of EdChoice Chats: Legal Updates. My name is Chantal Lovell and I’m the Vice President of Communications at EdChoice. Today I’m joined by the one and only Leslie Hiner, vice President of Legal Affairs and Director of the Legal Defense and Education Center. Leslie, we’ve seen record levels of activity in the states this year with three of them creating education savings accounts programs with universal eligibility. What’s on the horizon as far as legal challenges go? 

Leslie Hiner: Hello, Chantal. Thank you very much. You’ve just touched on why my life gets busy this time of the year. Yes. In fact, whenever there are new programs that are passed in states, or sometimes even if there are big expansions, we get busy in looking at the states, looking at their state constitutions, looking at the potential for challenges to those programs. Programs are not always challenged, but typically when they are challenged, it’s a big fight, let me put it that way. It’s definitely a big fight, and we take it very seriously. We know that in these states, especially these new states where they’ve adopted these universal programs, they really could not have adopted school choice programs so broad without broad support from parents and constituents in those states. So the necessity of being able to defend these programs in courts when litigation is brought, it’s just critical. 

So we take it very seriously. Yes. So the research has begun now into all those states, and that listeners may be interested in this part. Little bit of interesting legal work to share with you. One of the first things that we do is we look to the history of the state. So we looked to that day when a territory became a state, and to become a state, the people in the territory first had to adopt a constitution, a governing document. So the constitution that you see today in any state may have been amended over the years, but the original language and what it meant actually at the time that it was written into the Constitution becomes very important. In some states, there will be constitutional records of conversations that people had during constitutional conventions, so you can see what was in their mind, what they were thinking about at the time, and that can become very instructive. 

Yet in other states, they may not have those records available. They may not have survived for one reason or another. And so then we look at newspapers from the day. Oftentimes the newspapers would print verbatim what was said during state legislative sessions or during the constitutional convention. So needless to say, there’s a lot of work that goes into this, preparing for litigation, and we’re doing that now. We’re very proud of the people in these states who have decided to offer such a generous and necessary benefit for the children of their state. And so we plan to hold up our end of the bargain and defend them. 

Chantal Lovell: Well, that is always encouraging to hear. And now, on the not so wonderful front, I hear that there was a decision handed down today on another preexisting state program. 

Leslie Hiner: There was. We just received the decision out of the state of Vermont. There was litigation there. The Vermont litigation may not have risen high on people’s radar, only for the fact that Vermont was actually the first school choice state. They passed their town tuitioning, which is a form of vouchers back in 1869. It’s still going, but the lawsuit was this, in the state of Vermont, if you live in towns that offer school choice, then your child has an opportunity to attend a different school. But if you don’t live in one of those towns, then your child still needs to go to the public school only. That’s the only option that’s provided. And so the crux of it was that whether or not your child can access the school of your choice, can receive school choice, should not depend on geography, just where you happen to live, that this is a benefit that has been around in Vermont now for, oh, I don’t know, well over 100 years, and it should be available to every child in the state of Vermont. 

So the Vermont Supreme Court, it was kind of a mixed ruling. On the one hand, the court affirmed definitively that in the state of Vermont, every child has a right to education. The court then went on to say that the child does not have the right to a specific type of education, but that the types of education that may be available for children should rest in the hands solely of the state legislature. Now that’s good. So there’s nothing wrong with that part of the ruling, however, they also have a provision in Vermont that requires a certain equality of educational opportunity. And they ruled that in this case, that the differences in educational opportunity between what was being offered in private schools, what was being offered in public schools, was simply not great enough to form a claim for which the plaintiff could win. The court decided not to speak to the specific claims of the parents, and after I read the ruling, I realized why. The lead plaintiff in this case has a son who is confined to a wheelchair. 

She elected to take the child out of public schools after not once, but twice during school of fire drills, the child was simply left in the building because it was too much trouble to take him outside. The last time it happened, the child was locked in a closet. And so her child didn’t get much educational opportunity in that school because he was just treated like an object that had to be put away. It was very depressing for this poor child. The next year, the mother was able to have choice for her child, but only for, I believe it was a year. But during that time, her son just blossomed. Her son was treated as a person who had real value and everything improved for him. 

So to say that somehow that was equal treatment, equal educational opportunity in the public school that put him in the closet and the private school that treated him like a valued human being. Those two just are not equal. But nonetheless, the court ruled, and so we will move on to another day and see if there is another way to satisfy the needs of these children in Vermont who really need this choice. 

Chantal Lovell: Well, that is a horrifying story and such disappointing news out of Vermont. Is that the norm when these programs are challenged? What does the past tell us about the record when it comes to fighting these programs in court? 

Leslie Hiner: Chantal, I took a look at school choice litigation over the last 30 years, and I counted up 48 different lawsuits against school choice programs. And I discovered that out of those 48, there were five cases that we lost. But of those five in four of those states, those states today have very vigorous school choice. So notwithstanding the fact that we lost the case, the initial case in court, nonetheless, the people of those states were simply determined to be able to access these opportunities for their children. And so then they went back. They designed the programs differently, and they are thriving today in those states. 

There is only one state in a case that we recently lost that was in the state of Kentucky. We lost that case, but that was lost based on a provision that is unique to Kentucky State Constitution. In fact, the Kentucky Supreme Court was very explicit in saying this is unconstitutional, but solely because of one provision in their constitution, that does not exist in any other state constitution. So currently people in Kentucky are now attempting to amend that unique provision in their constitution so that they can have school choice. So notwithstanding the fact that there has been a lot of litigation, there has not been litigation in every state or against every program, and we do have a winning track record despite what our adversaries might lead you to believe. 

Chantal Lovell: Well, that is certainly encouraging. How are things going in the courts currently? What outstanding challenges are there? Which states are in play right now? 

Leslie Hiner: We do have some pending litigation in North Carolina, Tennessee, Ohio, New Hampshire, and Alaska. But for those cases, the courts are not proceeding quickly for a variety of different reasons. Most have a lot to do with the arcane practice of law that if you’re not a lawyer, you don’t really want to hear about it. It’s about motions and procedures and that sort of thing. But nonetheless, these cases are pending and they’re being vigorously defended. It just may take a few years before we have more to share with you about any real results out of those cases. I would like to remind people however, of really what’s at stake here when we are talking about litigation. Back in 1925, there was a case that arose out of the state of Oregon and in the state of Oregon, that was back at the time when compulsory education was being adopted by states. 

But the state of Oregon decided to make compulsory education, compulsory public education, meaning that a parent would be prohibited from sending their child to a private school or homeschooling, which also meant that the private schools would close. So there were some nuns at a Catholic school that would have closed that decided to bring litigation over this compulsory education situation. They were serving a high number of children from poor families, and it would’ve been a dire situation for those children had this law going into effect. So they sued and the US Supreme Court, went all the way up to the US Supreme Court and the court said in 1925 that parents have both a natural and constitutional right to decide how and where their children are educated. The court said that no child is or can ever be required to be educated only by public school teachers. 

And the reason for that is the court said, and I quote, “The child is not the mere creature of the state.” The children belong to their parents, and that is really at the heart of everything that we do. When you take a look at a parent’s rights as the US Supreme Court articulated in Pierce versus Society of Sisters in 1925, you realize very quickly that for a parent to be able to exercise that right, the parent must have an opportunity to do so. And there are simply too many parents across the country who do not have that opportunity, but whose children really need just a different place or a different method to be able to learn. That rest at the heart of everything that we do, and we will continue to defend that vigorously. 

Chantal Lovell: That’s such a good note to end on, Leslie. So encouraging and like you said, a great reminder of why we do what we do at EdChoice. I’d like to thank our listeners for tuning in today. We’re so happy to have you. Be sure to subscribe to our podcast anywhere you listen to them, and we’d love to stay in touch. Check out our latest work at edchoice.org and email us any questions, ideas, or comments at legal@edchoice.org. Thanks.