Suit Challenges Nevada's School Voucher Program

The ACLU yesterday filed suit in state court in Nevada challenging the state's broad school voucher program.  Under the program, parents of a child who has attended public school for 100 consecutive days may move the child to a private school (including a religious school) and have the state pay into an educational savings account for the student an amount equal to at least 90% of the statewide average basic support per pupil. (See prior posting.) The complaint (full text) in Duncan v. State of Nevada, (NV Dist. Ct., filed 8/27/2015), contends that private religious schools constitute the majority of private schools eligible to participate in the educational savings account program. It alleges that the program violates Art. XI, Sec. 10 of the Nevada constitution that prohibits public funds from being used for sectarian purposes, as well as Art. XI Sec. 2 that requires a uniform system of common schools in which no instruction of a sectarian character takes place. AP reports on the lawsuit.

North Carolina Supreme Court Upholds School Voucher Program

In Hart v. State of North Carolina, (NC Sup. Ct., July 23, 2015), the North Carolina Supreme Court in a 4-3 decision reversed the trial court and upheld against constitutional attack the state's Opportunity Scholarship Program which offers some low-income students scholarships to attend private schools. The majority held that the state constitutional provision on the state school fund was intended "to protect the 'State school fund' in order to preserve and support the public school system, not to limit the State’s ability to spend on education generally." The provision requiring "a general and uniform system of free public schools" also does not bar the state's voucher program:

The uniformity clause applies exclusively to the public school system and does not prohibit the General Assembly from funding educational initiatives outside of that system.

The majority went on to hold that the appropriations for vouchers satisfy the public purpose requirement, and that taxpayer plaintiffs lack standing to  assert religious discrimination claims on behalf of students. Justices Hudson, Easley and Ervin dissented. AP reports on the decision.

The court also issued a short opinion in a companion case, Richardson v. State, relying on its holding in Hart.

Colorado Supreme Court Invalidates Choice Scholarship Pilot Program

In a fragmented decision in Taxpayers for Public Education v. Douglas County School District, (CO Sup. Ct., June 29, 2015), the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. The Program creates a public Choice Scholarship Charter School to which  public funds are paid.  Then through scholarship awards 75% of those funds are shared with the Charter School student's Private School Partner (often a religiously sponsored institution) which is the student's actual school.

Chief Justice Rice wrote the Court's plurality opinion for 3 justices, concluding that the scholarship program is unconstitutional under Art. IX, Sec. 7 of the Colorado Constitution that prohibits the state from using public money to fund sectarian schools. The plurality dismissed the other challenge to the Program-- that it violates the state's Public School Finance Act of 1994-- concluding that the legislature did not intend to imply a private right of action under that law and so petitioners lack standing.

Justice Marquez concurred in the result, filing an opinion concluding that the Scholarship Program violates the School Finance Act and that petitioners have taxpayer standing to challenge the program.

Justice Eid, in an opinion joined by two other Justices, argued that the scholarship program was permissible under Art. IX, Sec. 7. In addition she argued that the court should have examined whether Art. IX, Sec. 7 of the state Constitution is unconstitutional under the federal Constitution because of the provision's anti-Catholic bias.

Fox31 reports on the decision.

Local Board Loses Suit Against NY Education Department Over Placement of Jewish Special Needs Students

As reported by yesterday's Lower Hudson Journal News, the East Ramapo, New York school board's battle with  the state Education Department continues as the local school board loses a lawsuit challenging state interference in its placement of special education students.  Last year a state-appointed monitor filed report critical of the East Ramapo board whose Orthodox Jewish majority has been charged with aiding yeshivas at the expense of public schools. (See prior posting). The latest round involves intervention by the state challenging the East Ramapo board's practice of paying for special needs students from ultra-Orthodox families to go to private Yiddish-speaking schools when placements were available in public schools. (Background.) The district had argued that the cost of placing students in private schools that accommodate their cultural and language preferences is no more than placement in public schools, and fighting parental requests would have cost the district tens of thousands of dollars.  In Matter of East Ramapo School District v. King, (App. Div., June 4, 2015), a New York appellate court held that the federal Individuals With Disabilities Education Act does not grant the local school board a right of action to challenge the state's enforcement of federal law assuring students with disabilities a free appropriate public education.

Nevada Enacts Expansive School Choice Legislation

As reported by the Las Vegas Review Journal, on Tuesday, Nevada Governor Brian Sandoval signed SB 302 (full text) creating an extensive school choice program. The legislature gave final passage to the bill last week.  Under the bill, the parents of a child who has attended public school for 100 consecutive days may move the child to a private school (including a religious school), a tutoring facility or to home schooling and have the state pay into an educational savings account for the student an amount equal to 90% (or 100% for low-income and disabled) of the statewide average basic support per pupil. Currently 100% of the statewide average is about $5700.  The funds may be used for tuition, fees, textbooks, tutoring, testing and transportation.  A student may also be moved part-time to another educational facility and spend part-time in public school, receiving a partial grant. The Reno Gazette Journal has more details of the legislation. Payments under the new law will start Jan. 1, 2016.

Opponents of the legislation argued in part that the bill is unconstitutional because it allows taxpayer money to be spent on religiously-oriented private schools. The Nevada Constitution, Art. 11, Sec. 10, provides: "No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose."

Challenge To Florida Tax Credit Scholarship Program Dismissed

A Florida state trial court judge has dismissed a constitutional challenge to the state's Tax Credit Scholarship Program.  In McCall v. Scott, (FL Cir. Ct., May 18, 2015), the court held that plaintiffs lack taxpayer standing because they are not challenging an appropriation. The court held that they also fail to allege a special injury that would give them standing on other grounds, saying:

whether any diminution of public school resources resulting from the Tax Credit Program will actually take place is speculative, as is any claim that any such diminution would result in reduced per-pupil spending or on any adverse impact on the quality of education.

Miami Herald reports on the decision.

Alabama Supreme Court Upholds State's Tuition and Scholarship Tax Credit Law

In Magee v. Boyd, (AL Sup. Ct., March 2, 2015), the Alabama Supreme Court upheld the constitutionality under the state constitution of Alabama's law creating a refundable income tax credit to parent of students in failing schools to be used to pay to transfer them to other public or private schools. It also upheld tax credits for contributions to scholarship organizations that grant opportunity scholarships to students in failing schools.  In a 145-page opinion, the majority rejected procedural challenges to the law's enactment.  It rejected challenges under Alabama's Blaine amendments, finding that tax credits do not amount to appropriations for purposes of the state constitution's limits on appropriation to schools not under state control (Sec. 73) or to sectarian or denominational schools (Sec. 263).  It also concluded that the law does not violate Sec. 3, the religion clauses of the state constitution.  Six justices joined the majority opinion. Two justices concurred in part, and one justice dissented. AP reported on the decision.

Challenge To Florida School Choice Expansion Dismissed On Standing Grounds

In Faasse v. Scott, (FL Cir. Ct., Dec. 30, 2014), a Florida state trial court dismissed for lack of standing a suit by Florida teachers challenging a statute passed last year expanding private-school choice by creating Personal Learning Scholarship Accounts for special needs students and expanding the existing Florida Tax Credit Scholarship Program.  Plaintiffs contended that SB 850 violates the state constitution's single subject requirement.  The court held that plaintiffs failed to show that they suffered any special injury. Links to all the pleadings in the case are available here.  RedefinED reported on the decision.

Colorado Supreme Court Hears Arguments On School Vouchers

The Colorado Supreme Court yesterday heard oral arguments (audio of full arguments) in Taxpayers for Public Education v. Douglas County School District.  In the case, the state court of appeals upheld  Douglas County, Colorado's "Choice Scholarship Program" under which parents of eligible students can obtain vouchers covering a  portion of the tuition costs of sending their children to certain private schools, a majority of which have religious affiliations. (See prior posting.)  AP reports on the oral arguments.

North Carolina Supreme Court Allows Direct Appeal of School Voucher Program

The Winston-Salem Journal reports that on Friday the North Carolina Supreme Court decided to allow a direct appeal of a trial court decision striking down the state's school voucher program. In August, trial court judge Robert Hobgood held that the state's Opportunity Scholarship Program violates various provisions of the state constitution relating to school funding and permits funds to go to private schools that discriminate on the basis of religion. (See prior posting.) Friday's ruling allows the parties to skip the usual appeal to an intermediate appellate court.  The North Carolina court of appeals has already allowed the voucher program to continue to partially operate while appeals are pending. (See prior posting.)

North Carolina Distributes First Voucher Funds While Challenge Is On Appeal

AP reports that last week the North Carolina State Educational Assistance Authority distributed $1.1 million under its Opportunity Scholarship Program to 109 private and religious schools for 568 qualifying students.  The largest amount of money-- $90,300 for 43 students went to the Greensboro Islamic Academy. $54,600 went to Word of God Christian Academy. The voucher program had been enjoined by a state trial court, but on Sept. 19 the state court of appeals ruled that, pending an appeal, students who had already been granted Opportunity Scholarships could receive the funds.

Trial Court Strikes Down North Carolina School Voucher Program

In North Carolina yesterday, a state trial court judge struck down on state constitutional grounds North Carolina's Opportunity Scholarship program. As reported by Reuters, Judge Robert Hobgood ruled that the voucher program diverts funds which can constitutionally be used only for public schools. Also some of the funding is going to schools that discriminate on the basis of religion. A 22-minute video of the judge reading his ruling is available online.  The written opinion does not appear to yet be available.  Supporters of the program as well as the state's Attorney General plan to appeal.  Previously the state had attempted to speed up awards of scholarship funds under the program to beat Judge Hobgood's decision. (See prior posting.) However, according to the Raleigh News & Observer:

The state agency in charge of administering the program had tried to disburse the first round of funds last week, but a technical glitch prevented the payments from going through, said Elizabeth McDuffie, director of grants, training and research at the agency.

The process was launched again starting on Monday with the goal of getting funds at the private schools by the end of this week.

When Hobgood ruled Thursday morning, the disbursement was halted. “No money has left the building,” McDuffie said.

UPDATE: A transcript of Judge Hobgood's ruling from the bench is now avaiable.

North Carolina Can Distribute School Voucher Funds Ahead of Hearing Challenging the Program

A state trial court judge in North Carolina has refused to issue an injunction to prevent the State Educational Assistance Authority from distributing $10 million under a state school voucher plan while a challenge to it is pending. The 2400 students who will receive funds from the oversubscribed program were chosen by a lottery. According to the Raleigh News & Observer, the state moved up by a month the date for distributing funds under the Opportunity Scholarship program to beat any ruling by the court.  The distribution is scheduled for Aug. 15, while a hearing on the challenge to the voucher law is set for Aug. 19.  In February, the trial court had issued a temporary injunction to prevent the voucher program from taking effect while the challenge was being litigated. The state Supreme Court in May stayed the trial court's temporary injunction to permit the lottery to move ahead.  At that time, however, the trial court hearing on the challenge was scheduled to take place before the actual distribution date for funds. (See prior posting.)

Israel's High Court of Justice Invalidates A Stipend Program For Orthodox Yeshiva Students

Times of Israel reports on a decision handed down Sunday by a 7-judge panel of Israel's High Court of Justice invalidating a government program that awards 4-year Orthodox Jewish yeshiva students stipends designed to assure that they receive the equivalent of the minimum wage.  The court ruled that, like another scholarship program it struck down in 2010, the stipends perpetuate favoritism toward yeshiva students and discriminate against "other groups, including women, those of other faiths, students belonging to other Jewish denominations and university students." It said that the program does not appear to carry out the government's goal of encouraging yeshiva students to enter the workforce after 4 years. The stipend cut-off takes effect next year.  A separate program that aids longer-term yeshiva students was upheld by the Court.

North Carolina Supreme Court Stays Trial Court's Injunction Against School Voucher Program

The North Carolina Supreme Court yesterday issued an order (full text) in Hart v. State of North Carolina, granting a stay of a trial court's temporary injunction that had barred implementation of the state's Opportunity Scholarship program. (See prior posting.) The program, enacted in 2013, gives up to 2400 students from low-income families scholarships of $4200 to attend a private or religious school of the parents' choice. WRAL News reports that the North Carolina Educational Assistance Authority will now likely move ahead with its planned lottery to determine which of the 5500 applicants will receive scholarships for next year.  Two separate lawsuits have been filed against the program, arguing that it unconstitutionally spends taxpayer funds on private schools, including ones that discriminate in admissions. Parents for Educational Freedom in North Carolina issued a press release welcoming the Supreme Court's action.

New Hampshire Supreme Court Hears Arguments In Education Tax Credit Challenge

On Wednesday, the New Hampshire Supreme Court heard oral arguments in Duncan v. State of New Hampshire. A video recording of the full arguments is available from the Supreme Court's website. [File will download.]  In the case, a New Hampshire trial court held that the state's Education Tax Credit program violates the state constitution's ban on compelling any person to support sectarian schools and its "No Aid" clause, insofar as the state allows funds generated by the program to be used at religious schools. (See prior posting.) The Concord Monitor reports on the oral arguments.

Lawsuit Challenges Georgia's Scholarship Tax Credit Program

The Atlanta Journal Constitution reports that a lawsuit was filed yesterday by a group of parents challenging Georgia's student scholarship organization tax credit program.  The program allows individuals and corporations tax credits for contributions to organizations that in turn fund scholarships for private school students.  Among other things, the lawsuit-- backed by the Southern Education Foundation-- alleges that the program gives indirect funding to religious schools in violation of Georgia' constitution. The program has become so popular that this year the $58 million overall cap on tax credits allowed for the year was met in the first few weeks of the year.

Temporary Injunction Issued Stopping North Carolina School Voucher Program

According to the Lincoln (NC) Times-News, after a hearing last Friday, a North Carolina trial court judge issued a temporary injunction barring the state (at least for the time being) from moving ahead with a lottery to choose families to receive school vouchers for use at private schools next year. The state has received over 4,700 applications for the 2,400 vouchers that would be awarded to income-eligible families. According to the Times-News report:

Friday’s arguments focused on what the state constitution allows and whether the legislature improperly took money away from the state’s public schools to give to private schools. Opponents of the bill have argued that vouchers would send money to schools that discriminate based on religion or disability. 

One school that has come under fire is Raleigh Christian Academy, which requires its students and parents to sign a contract stating they are in 100 percent agreement with its fundamental doctrinal practices. Their school application states, “we are not a church school for those in cults, i.e. Mormons, Jehovah’s Witness, Christian Science, Unification Church, Zen Buddhism, Unitarianism, and United Pentecostal.”

(See prior related posting.)

Challenges To North Carolina School Vouchers Clear First Hurdle

Yesterday, a North Carolina state trial court refused to dismiss on the pleadings two related lawsuits challenging the state's Opportunity Scholarship Program.  The program will provide school vouchers for use at private schools to some 2400 income eligible families. It was enacted as part of last year's state budget bill.  NC Policy Watch reports on yesterday's ruling from the bench that came after a hearing that lasted more than two hours. The lawsuits, Hart v. North Carolina, (NC Super. Ct., filed 1/13/2014) (full text of complaint) and Richardson v. North Carolina, (NC Super. Ct., filed 1/15/2014) (full text of complaint), claim that the law violates several state constitutional provisions on education, taxation and discrimination. The court scheduled a hearing for Friday on plaintiffs' request to delay implementation of the scholarship program while its constitutionality is being litigated. Institute for Justice has additional information on the lawsuits.

Taxpayer Suit Challenges North Carolina School Voucher Program

This week some 25 North Carolina taxpayers filed a state court lawsuit challenging the constitutionality of the state's new voucher program for students attending private schools, including religiously sponsored schools. The complaint (full text) in Hart v. State of North Carolina, (Super. Ct., filed 12/11/2013), alleges that the voucher program violates provisions of the North Carolina constitution calling for a uniform system of free public schools. North Carolina Justice Center's website and the website of the North Carolina Association of Educators have additional information on the lawsuit.  AP's coverage of the lawsuit has additional background on the voucher program.