Progressives have been relentless in their assault on successful school choice programs this year, recently targeting Wisconsin’s popular programs.
Fortunately, the litigation attack against Wisconsin’s voucher programs has just been defanged, though certainly the political offensive continues.
Wisconsin teachers’ unions and their allies recently filed a lawsuit claiming the Wisconsin legislature has failed to provide adequate funding for traditional public schools. The most sinister parts of the 97-page complaint, however, are the legal aspersions cast against Wisconsin’s highly successful choice programs — the statewide voucher program, the Milwaukee voucher program, the Racine voucher program, and the Special Needs Scholarship Program.
WISCONSIN VOTERS MUST DECIDE IF THEY WANT TO KEEP SCHOOL CHOICE FOR THEIR KIDS
Our Spidey senses tingling, EdChoice Legal Advocates, which defends school choice programs in court around the country, asked permission on behalf of two families who use these programs to participate in the case and defend the vouchers.
That’s when things got interesting.
Confronted with families willing to fight back, the unions switched strategies and denied they were challenging the voucher programs. They said the case does not actually target those programs, so EdLA and its client families should not be let into the case.
In a case of winning by losing, the court denied EdLA’s participation, but only because it agreed that the case did not attack vouchers, concluding that “this is not a lawsuit about the constitutionality of school choice. That is settled law.”
To repeat: “settled law.” The court left zero doubt about the constitutionality of school vouchers in Wisconsin.
So while we fully expect ongoing political attacks from Wisconsin’s progressives — and will keep our antennae up for new legal maneuvers — at present, Wisconsin vouchers are not in the litigation crosshairs.
The same cannot be said in other states with successful school choice programs, such as Florida, whose Family Empowerment Scholarship and related educational choice programs serve hundreds of thousands of students. Florida is one of only two states classified in the “gold” tier in EdChoice’s annual Friedman Index, which measures the availability of school choice in states.
But now a lawsuit by teachers unions and others challenges those programs by reviving legal arguments from Bush v. Holmes, a 2006 Florida Supreme Court decision that struck down an early voucher program in the state. As in Wisconsin, EdLA has asked the court for permission to participate in the Florida case on behalf of families who benefit from the programs under scrutiny.
The new Florida case presents a critical opportunity for school choice advocates. Not only can we defend Florida’s wildly successful choice programs, but we may finally drive a stake through Bush v. Holmes, a zombie precedent that opponents of education freedom cite in every case they file against school choice programs across the country.
Bush was wrong when it was decided, and it has been condemned by better-reasoned decisions in other states. Even before Bush, the Wisconsin Supreme Court, in announcing the “settled law” recently recognized by the Wisconsin trial court, stated the obvious: When it comes to K–12 education opportunities, traditional public schools are a floor, not a ceiling. Later, the Indiana and Nevada supreme courts expressly rejected Bush. A unanimous Indiana Supreme Court said the state’s duty to provide public schools “cannot be read as a restriction” on promotion of education more generally, including through private choice programs.
The wins for school choice in state high courts just keep coming. This year, the Idaho Supreme Court upheld a refundable tax credit for education expenses — and did not even acknowledge Bush. And the Wyoming Supreme Court recently rejected an entreaty to follow Bush when it lifted an injunction against an education savings account program.
BIG SCHOOLING UNIONS ARE DIGGING A DEEPER HOLE. WHAT ELSE IS NEW?
We look forward to the day when, in this new case, the Florida Supreme Court inters Bush for good. In the meantime, education freedom flourishes both in the Sunshine State and from sea to shining sea, in 34 states operating 75 programs benefitting over 1.5 million students. Progressives’ legal resistance will ultimately fail as case after case lays bare the lack of legal support for invalidating private choice programs using state public education guarantees and other clever arguments.
As we celebrate America 250, let education freedom ring!
Thomas M. Fisher is a former Indiana solicitor general and is the executive vice president and director of litigation at EdChoice.