This is the fourth in our series, Private School Vouchers: Analysis of 2020 Legislative Sessions. This annual PFPS analysis provides an overview of proposed voucher legislation nationwide and deeper dives on key states and issues. Read the first, second, and third parts.

More than a dozen bills were introduced in the 116th Congress (2019-2020) to fund private school vouchers or otherwise divert public funds to private education. The COVID-19 crisis spurred renewed pro-voucher activity at the federal level, both in Congress and by the Trump Administration.

PFPS was directly involved in key legal victories that prevented the unlawful diversion to private schools of federal funds that are urgently needed to support public school students during the pandemic.

Pre-Pandemic Bills

Before the start of the pandemic, Congressional Republicans introduced a number of private school voucher bills. One bill would have permitted “portability” of federal Title I funds intended to support the education of students from low-income families so that these funds could “follow” students from their public school districts to pay for private school tuition. A similar bill would have introduced portability into federal funds earmarked for students with disabilities.

Several federal voucher bills targeted specific student populations, proposing to divert public funds to Education Savings Account (ESA) vouchers for Native American students or to create a five-year pilot voucher program for families on military bases. There was also a proposal to expand the Washington, D.C. voucher program, the only federally funded private school voucher program in the nation.

Among various bills to fund tax credit vouchers, Congressional Republicans again introduced the Trump Administration’s signature voucher legislation, the “Education Freedom Scholarships and Opportunity Act.” This legislation would have established a $5 billion tax credit voucher program.

Despite significant support from then-Secretary of Education Betsy DeVos and the Trump Administration, none of these bills passed.

Pandemic Bills

Federal voucher bills introduced after the start of the COVID-19 pandemic recycled many of the same unpopular ideas and predictably failed to pass. Some bills specifically leveraged the national emergency, proposing to use public funds to pay for private education during the pandemic.

In late March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, an omnibus relief package that included support for strained state education budgets. When voucher proponents, including Secretary DeVos, tried to illegally divert CARES funds to private schools by dramatically inflating the amount of federal relief funding that public school districts were obligated to provide them, PFPS and its allies successfully challenged their actions in court. PFPS represented the plaintiffs in NAACP v. DeVos, in which a federal district court invalidated the DeVos rule nationwide, keeping hundreds of millions of dollars in public schools.

PFPS and the Southern Education Foundation also filed an amicus curiae brief in a South Carolina lawsuit challenging the use of the Governor’s Emergency Education Relief (GEER) Fund, a subset of CARES Act funding, for a state voucher program. The South Carolina Supreme Court unanimously ruled that the governor’s plan to use $32 million in GEER funds on vouchers violated the state constitution’s ban on public funding of private schools.

At the very end of 2020, after protracted negotiations, Congress passed another COVID-19 stimulus bill. This legislation included important restrictions on the use of education dollars for voucher programs but still contained significant funding for private schools. With additional relief legislation approved by Congress in 2021, PFPS continues to monitor the use of federal pandemic relief dollars to prevent improper diversion of funds that under-resourced public schools desperately require to meet the academic, social-emotional, and health needs of their students.