Public School Advocates Push Back on Vouchers in Courts Across the Country
Public school families, advocates, and attorneys all over the country are fighting to keep public funds for education in public schools where they belong. Lawsuits are a key strategy in this fight.
Public Funds Public Schools represents the plaintiffs or has filed amicus curiae (friend of the court) briefs in many of these cases.
Below is an overview of pending lawsuits, with and without PFPS participation, challenging private school voucher programs and other diversions of public funds to private education:
DeVos “Equitable Services” Rule: There are four federal lawsuits challenging a rule enacted by Secretary of Education Betsy DeVos and the U.S. Department of Education (USED) that imposes illegal and harmful requirements on the emergency relief funds allocated to public school districts in the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Under the rule, school districts must divert more funding for “equitable services” to private schools than the law allows or face onerous restrictions on the use of those funds to meet the needs of students in their public schools.
In NAACP v. DeVos, the three PFPS organizations—Education Law Center, Southern Poverty Law Center, and Munger, Tolles & Olson LLP—represent the NAACP, public school parents, and public school districts challenging the rule in federal court in Washington, D.C. A hearing will be held on the plaintiffs’ motion for partial summary judgment on September 4. In two of the other pending cases, federal district courts in Washington State and California recently granted preliminary injunctions prohibiting the USED from enforcing the rule.
Maine: Carson v. Makin is a challenge under the U.S. Constitution to Maine’s decision not to use public school funding to pay for tuition at private religious schools. The U.S. district court upheld the State’s position, and the case is now on appeal in the U.S. Court of Appeals for the First Circuit. PFPS filed an amicus brief in support of the State, arguing that inclusion of sectarian schools would undermine Maine’s careful construction of a limited program to fulfill the State’s constitutional duty to provide publicly funded education in private school settings in the narrow circumstances where a traditional public school is not available.
Maryland: In Bethel Ministries v. Salmon, a religious school sued state officials to challenge its removal from Maryland’s BOOST voucher program because the school was found to violate the program’s nondiscrimination requirement. In early 2020, the U.S. District Court for the District of Maryland denied the plaintiff’s motion for preliminary injunction. The case is now in the discovery phase.
Michigan: In Council of Organizations and Others for Education About Parochiaid v. Michigan, the plaintiffs are challenging a law that would divert millions in taxpayer funds from Michigan’s public education budget to reimburse private schools for a wide array of expenses. The Michigan Supreme Court granted review of the case and invited PFPS to file an amicus brief. PFPS’s brief argues the state constitution’s no-aid clause, which prohibits direct or indirect payment of public funds to private schools, expresses the electorate’s intention to retain public dollars exclusively for Michigan’s public schools, and also details the continuing severe underfunding of the state’s public education system. Earlier this year, the Michigan Supreme Court put consideration of the case on hold while awaiting the U.S. Supreme Court’s decision in Espinoza v. Montana Department of Revenue.
North Carolina: In Walker Kelly v. North Carolina, public school parents are challenging North Carolina’s Opportunity Scholarship voucher program, in which the vast majority of funds go to religious schools. The lawsuit is brought on state constitutional grounds, including religious discrimination and interference with rights of conscience. The case, recently filed in state trial court, is supported by the National Education Association and the North Carolina Association of Educators.
South Carolina: In July 2020, Governor Henry McMaster announced he would use the majority of South Carolina’s allocation from the Governor’s Emergency Education Relief (GEER) Fund under the CARES Act to pay for a new private school voucher program. Adams v. South Carolina was filed to challenge the program under the state constitution’s prohibition on payment of public funds for the direct benefit of any private educational institution. The state trial court granted a temporary restraining order. The South Carolina Supreme Court then took up the case, granted a preliminary injunction, and scheduled oral argument for September.
Tennessee: Two lawsuits in state court are challenging Tennessee’s Education Savings Account voucher program enacted in 2019. In McEwen v. Lee, public school parents and community members in Davidson County (Nashville) and Shelby County (Memphis), the two counties targeted by the voucher law, are challenging the program under several provisions of the state constitution. The McEwen plaintiffs are represented by Education Law Center and the Southern Poverty Law Center, which collaborate on PFPS, as well as the ACLU of Tennessee and pro bono by the firm Robbins Geller Rudman & Dowd LLP.
In a companion case, Metropolitan Government of Nashville and Davidson County v. Tennessee Department of Education, the trial court granted a motion for summary judgment, ruling that the voucher law violates the constitution’s Home Rule provision, which prohibits the General Assembly from passing laws that target specific counties without local approval. The legal action against the voucher law has forced the State to abandon plans to start providing these private school vouchers in the fall of 2020, preventing the diversion of tens of millions of dollars away from the public schools. An appeal in Metro Government was recently heard by the Tennessee Court of Appeals, with the McEwen plaintiffs submitting an amicus brief.