“Year of School Choice” Promise Collides with Reality of Litigation-Caused Delays

Parents, students wait as advocacy groups, unions exhaust court challenges
Ruth, Katie and Alexander Switzer (left to right) plan to benefit from West Virginia’s Hope scholarships after uncertainty and a delay resulting from litigation.

When the West Virginia legislature passed a law in 2021 that would give parents money to pay for private school tuition or other education-related expenses, it got Katie Switzer thinking.

Her oldest child, Alexander, had struggled in preschool. She didn’t think he was ready for kindergarten, even though he would be the right age based on West Virginia’s public school requirements. So she kept him home for a year and applied for the scholarship as soon as she had a chance, hoping a combination of some in-person schooling and working with her son at home would be the ideal fit.

She wanted a scholarship for her oldest daughter, Ruth, too. Ruth turned 5 after the state cutoff for entry into kindergarten. Ruth has apraxia of speech, which can make it hard for her to say what she wants and requires a speech pathologist with specialized skills to help her learn to form words. Switzer has been paying thousands of dollars out of pocket for that speech therapy. She hoped to use the scholarship for some of that therapy while Ruth would learn reading and other lessons at school.

So Switzer applied. She sorted out how to use the money to pay for the lessons she would teach the kids at home, specialized therapy a school couldn’t provide and a la carte classes at school. It was a good plan, she thought.

Until it wasn’t.

West Virginia’s law stood out as a major advancement for school choice when it passed, even in a legislative year school choice advocates generally considered full of victories. The state previously did not have any private school choice programs. Suddenly, it had an option with expansive eligibility for financial help. Essentially every student statewide could apply, and in the long term, it would include students already enrolled in private schools or being homeschooled, even if they had never attended public schools.

While private school enrollment nationwide did tick up with so many public schools closed during the early days of the health crisis, that followed decades of declining enrollment nationwide. Parents have more choice than ever among traditional public schools, charter schools, homeschooling, private schools, and newer models such as pods and microschools, which also took off during the pandemic and which some states have also recognized with legislation.

But was the big promise of school choice realized in West Virginia and other states that were part of the wave of new choice laws ushered in during the pandemic?

The reality is there’s a lag between passing a law and practically implementing it. In West Virginia and elsewhere, at least some of the programs created recently have faced time-consuming legal challenges that prevented students, and parents, from immediately using the choices or money provided.

In West Virginia, scholarships for Switzer’s kids and about 3,000 others who had signed up were delayed for months by a lawsuit. Broad access to Hope Scholarships in West Virginia was one reason the group Public Funds Public Schools sued, said Jessica Levin, the group’s director, who is also a senior attorney at the Education Law Center, another organization that works on public school funding issues. The suit said the new program would violate the state’s constitution in several ways.

“It’s a bold and illegal and very harmful move,” Levin said of West Virginia’s program. “It makes it all the more harmful to public school budgets.”

Public Funds Public Schools has also litigated, with some success, to delay school choice programs in  Nevada and Tennessee.

The group sometimes partners with teachers unions on amicus briefs and has represented parents who are teachers, including union leaders, as plaintiffs in some of its lawsuits.

One common element of the cases the group pursues: Public schools must enroll all students, Levin said, while private schools can choose to discriminate based on students’ disabilities, religion or sexual orientation.

“Public schools are cornerstones of democracy,” Levin said, and “every child has a right to public education that is adequately funded to make that right real.”

A lower court in West Virginia agreed with Public Funds Public Schools, putting the program on hold in July 2022. An appeals court declined to lift that hold until an appeal worked its way through the court system. But in October 2022, the state Supreme Court ruled three-to-two in favor of the Hope Scholarship program, reinstating the program.

“I’m so excited,” Switzer said.

Ruth and Alexander spent the fall 2022 term at a public charter school, full-time.

Now, Switzer said the children will use some of their $4,300 each—the amount they would have had for the whole school year had the program not been blocked in the fall—during this spring 2023 semester to attend a two-day-a-week homeschool co-op and use the rest of the money for speech therapy and dyslexia tutoring.

The West Virginia Treasurer’s Office, which oversees the administration of Hope, said all students originally eligible for the program at the start of the 2022-23 school year, about 3,215 children, were able to remain so.

Still, the delay in access to the money came at an actual and emotional cost, Switzer said.

“They both have relationships with teachers and kids in their classrooms, even if the school they attended hasn’t been perfect and couldn’t meet Ruth’s special needs,” she said. In addition, the family has spent $600 a month on Ruth’s specialized speech therapy and another $300 a month for dyslexia-specific tutoring.

“So not having Hope has been very expensive for us,” she said.

* * *

Since the onset of the pandemic, more than 20 states added new private school choice programs or expanded existing ones, mostly during the 2021 legislative session. A few more came along in 2022. But 2023 has seen a surge specifically in the kind of expansive programs that concern Levin’s group. That includes programs in Iowa, Utah and Arkansas. Over the last few years, some states expanded support for charter schools, too, adding financial support for charter school facilities, for example, or making it easier for charters to be authorized. And the surge in the number of kids attending charter schools earlier in the pandemic has held up, according to new data from the National Alliance of Public Charter Schools.

The sheer volume of legislation has been heralded as a sea change in the school choice landscape. In reality, however, said Michael Hartney, a fellow at Stanford University’s Hoover Institution and an assistant professor of political science at Boston College, states that moved the needle on private school choice over the last few years are ones “where they could have gotten things done before the pandemic.”

Overall, despite the gains, he said, “it’s symbolic,” given the relatively tiny share of American students who attend private schools using vouchers, or who use subsidies to pay for tutoring or supplies for homeschooling.

“The basic equilibrium to me seems pretty much unchanged.”

Still, the creation of a voucher program in West Virginia was notable. Teachers had descended on the state capitol repeatedly in 2018 and 2019 to demand better pay and benefits and to push back against proposals supporting charter schools and private school vouchers.

Teacher Wendy Peters, who was one of the plaintiffs in Public Funds Public Schools’ suit against the West Virginia scholarships, was president of her local union in Raleigh County, West Virginia, during those protests.

“It sounds good in theory: Let’s give someone some money,” she said. “I don’t think people realize how devastating it is for the public schools.”

Her son uses special education services, and she doubts any private school would accept him if she chose to use one of the scholarships. For other parents of children with disabilities, they may not realize that their access to special education could evaporate at a private school. “Who’s to say they’re not going to come right back” to public school, Peters said.

“If I took that $4,300 for myself, there is not a private school that would take my son,” she said.

* * *

At times, the pandemic was cited as the reason parents needed more schooling options—with teachers unions taking the blame for keeping school buildings closed and driving lawmakers to create choices outside of traditional public schools.

Yet some of the states that added vouchers or education savings accounts with the potential to encompass large numbers of students, or that made the largest expansions to existing choice options, are right-to-work states with limited union influence, Hartney noted. And in some cases, these same states forced schools to reopen for in-person classes, while also expanding choice.

The major national unions oppose private school choice. At its convention in July 2022, for instance, the American Federation of Teachers resolved to continue condemning “the diversion of public funds to discriminatory voucher programs that significantly reduce public financial support to our cherished public schools,” and said it would lobby against these policies.

In December, with the support of the national AFT and Public Funds Public Schools, the New Hampshire AFT  to block the Granite State’s new Education Freedom Accounts.

This expansive program, also created during what’s been called the choice wave in 2021, is in a much different place than West Virginia’s. New Hampshire’s new Education Freedom Accounts became law in June 2021. The legislature anticipated only a few dozen students would sign up during the 2021-22 school year, but by year’s end, it was more than 2,000 kids. More than 3,000 applied for the 2022-23 school year.

The program allows students to use the state portion of their per-student allocation — or $4,857 for the current school year — toward school tuition, tutoring, online schooling, educational supplies, internet access, and similar expenses. The program doesn’t require students to have attended a public school to access the money. The lawsuit says that the biggest beneficiary of the money in 2021 was Amazon, where parents spent nearly a fifth of their EFA dollars.

Parents can combine the money with another school choice program, a longstanding tax credit scholarship program, and newly created grants for all students in the state, including those attending public school, to pay for tutoring and other educational expenses because of disruption from the pandemic. This school year, more than 1,100 students are drawing funds from both EFAs and the tax credit scholarships.

For some parents who were essential workers as schools shifted to remote learning in the spring of 2020, in-person schooling was a necessity, and private schools were their only option in the early days of the Covid-19 crisis, said Kate Baker Demers, whose Children’s Scholarship Fund organization approves applications and distributes the New Hampshire tax credit scholarships and Education Freedom Account money.

“You have to bring your child somewhere if you drive a truck,” Demers said. “If schools were to shut down again, now we have a solution for those families.”

Only about a quarter of students who used one of the new Education Freedom Accounts last school year were “switchers,” or kids leaving their public schools for any reason, Demers said. One enterprising private Christian school leader in Laconia, N.H., encouraged existing students to apply for the grants, and all but two did.

The school choice momentum in New Hampshire has slowed. Lawmakers ended up putting an expansion of the program on hold in 2022. The Education Freedom Accounts were enacted in 2021 by tucking a provision into the state budget bill, rather than passing a standalone piece of legislation.

One 2022 proposal would have expanded eligibility to families at 500 percent of the federal poverty level. Another would have created a voucher that would have come from local school district budgets and would have been worth between $291 and $41,000 per student to use for the same kinds of education expenses as the Education Freedom Accounts.

What did pass was a bill sponsored by state Democrats calling for an audit of the program in 2023. Republican Governor Chris Sununu signed that legislation in July 2022.

The New Hampshire lawsuit says the EFA program violates state law because it is funded via transfers from the state’s Education Trust Fund. “The ETF statute enumerates its permissible uses, which do not include private education or vouchers, and states that the funds are not to be used for any other purpose,” Public Funds Public Schools said. In addition, the lawsuit charges that the accounts law violates a provision of the state constitution requiring all proceeds from the state-run lottery, which are deposited into the trust fund, be used to support public school districts.

* * *

In Indiana, a major expansion of school choice options, enacted in 2021, also took effect last school year, resulting in a surge of interest in private school vouchers in that state. Lawmakers added to the list of who is eligible for a private school choice, including children in foster care and more middle-class families.

The use of private school vouchers in Indiana had plateaued in recent years and actually declined during the 2020-21 school year. Then it jumped by almost 25 percent in 2021-22, after lawmakers expanded who is eligible for the money. Now, a family of four can have a household income of more than $147,000 and access vouchers.

Even as the share of students who can use public dollars for private school grows in Indiana, a report last year found that private school enrollment has declined as the state has created more voucher programs. In 2000, more than 134,000 or 12 percent of Indiana students, attended private schools. As of 2021, fewer than 61,000 or 5.4 percent, did so, Michael J. Hicks and Dagney Faulk of Ball State University found.

“I know much of the rhetoric about school choice claims it is designed to destroy public education,” Hicks wrote in The Herald-Times, based in Bloomington, Indiana. “If so, it has been a colossal failure. Since Indiana began its path to school choice, private school enrollment in the state plummeted by more than half.”

Could that change? Perhaps: Lawmakers this year are considering additional ways to expand access to school choice in the Hoosier state.

* * *

Lawmakers in Arizona also created another expansive choice option in 2022, in a state already awash in such programs.

Every student in the state can use an Empowerment Scholarship Account in Arizona under a law then-Governor Doug Ducey, a Republican, signed in July. That’s more than a million kids. The money can be used for private school tuition, homeschooling, tutoring and other educational services.

A group that forced a ballot referendum on another private school choice bill earlier in Ducey’s tenure, which voters rejected, attempted to do the same with the new law. Had they succeeded, the expansion would have been on a long hold until voters had a chance to weigh in, and that could have been its undoing.

But that petition drive failed to gather enough signatures to push the newest measure to voters.

Now that the far-reaching choice program is a reality, it’s not clear how many former public school parents are using the option, however, though it has proven popular with students already attending private schools. Only a relatively small number of Arizona students used the program until now: a little more than 13,000 students statewide, the Arizona Department of Education said.

The latest figures show about 45,000 Arizona students are using ESA money.

* * *

It’s not always lawsuits or petition drives that delay or alter the course of a choice program. In Ohio in 2020, state lawmakers put on hold plans for an expansion of the state’s EdChoice private school voucher program to students who attended hundreds of public schools considered to be poorly performing.

Parents whose schools were on the list the prior fall prior and who had counted on using a voucher for private school tuition sued the state over the delay. Ultimately, the state legislature changed the voucher program, and not all of the students originally identified as eligible for a voucher had the same option in the long run.

The changes did expand Ohio’s program significantly, but the eligibility rules were altered so that they were now based on  family income level rather than public school performance.

Now, a group of more than 200 school districts, including the state’s largest—Columbus City Schools—and parents are suing Ohio over its longstanding private school voucher program. The group, called Vouchers Hurt Ohio, says state spending on vouchers has increased to $350 million during the 2020-21 school year from $42 million in 2008.

In December 2022, a judge ruled the lawsuit can proceed.

More than 20 years ago, the U.S Supreme Court upheld Ohios voucher law, which at the time was limited to students in the Cleveland City school district. In the decision about the new lawsuit being allowed to move forward, the judge wrote that the state’s so-called EdChoice program has expanded and changed dramatically even since it went statewide in 2005. Far more families are eligible and there is no limit on how many students can use vouchers.

The suit could affect the more than 50,000 Ohio students who use the program, even as lawmakers hope to expand choice even further in the state.

* * *

Back in West Virginia, Katie Switzer was surprised by Ruth and Alexander’s experience full-time in a public charter school.

Despite the delay in Hope Scholarships, West Virginia did begin the 2022-23 school year with one new form of school choice: Four charter schools opened this school year, said Adam Kissel, chairman of the West Virginia Professional Charter School Board, after a state law allowing charters passed in 2019 survived legal challenges and the first group of schools were authorized to open in fall 2022.

One of those schools is West Virginia Academy in Monongalia County, where the Switzer family lives. Switzer became a regular presence at the school as a volunteer while her kids were enrolled.

There was a time when the scholarships were in legal limbo that she couldn’t picture moving Alexander out of the school. “He’s done really well here,” she said.

Things were more difficult for Ruth, who also has some challenges processing what she hears. After a whole day in a classroom with many people speaking at once, and her own words sometimes slow to form, “she’s exhausted,” Switzer said. Still, she said before the court made its decision, “I have to say she’s getting better every week,” and she felt her daughter had been given an opportunity to do well at the charter school.

Now, it’s time for a shift, no easy feat for many people, and especially young children. It’s one more cost of the Hope Scholarship delay, she said.

“We still have to go through a transition,” Switzer said, “and it’s hard on everyone.”

Nirvi Shah is education enterprise editor at USA Today. This story was produced with support from the Education Writers Association Reporting Fellowship program.

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