School choice program faces constitutional roadblocks

Sep. 8—CHEYENNE — Wyoming lawmakers expect to navigate constitutional roadblocks on the path to creating a statewide school choice program.

Members of the Legislature's Joint Education Committee heard the prohibitions and education obligations laid out in the Wyoming Constitution on Thursday as part of their meeting at the state Capitol. Legislative Service Office Operations Administrator Tania Hytrek told members of the committee that these could leave the state at risk of litigation if a school choice program were developed, and she presented relevant case law from other parts of the country.

Hytrek said it is a complicated issue due to the state's unique 40-year history of school finance litigation, and the fact that the Legislature has not previously undertaken the act of creating a school choice program. There are different options, such as voucher programs, education savings account programs, individual tuition tax credits and public charters that could be considered.

"There are policy choices that the Legislature can make to minimize some of these risks — tying the educational standards to those required by public schools is one. Another may be setting aside funds that are not School Foundation Program dollars," she said. "But what we cannot answer is if and when such a program were challenged, what the outcome would be under Article 3, Section 36 and Article 16, Section 6, nor do we know the outcome under the lengthy school finance history."

Public funds and obligations

Regarding the expenditure of public funds, there are four specific sections that Hytrek said are relevant to the discussion of school choice programs.

According to Article 1, Section 19 of the Wyoming Constitution, "No money of the state shall ever be given or appropriated to any sectarian or religious society or institution."

Article 3, Section 36 outlines that, "No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association."

There are also guidelines in Article 7, Section 8 that provisions have to be made by general law for the "equitable allocation of such income among all school districts in the state." No appropriation can be made to any district or school that has not been maintained for at least three months, and no part of any public school fund can be used for an educational institution at any level that is controlled by a church or religious organization.

Hytrek noted that "the state or any county, township, town, school district or any other political subdivision" can't loan, give credits or make a donation to any "individual, association or corporation, except for the necessary support of the poor."

These don't speak to the constitutional education obligations that have been set as the standard in the Campbell County school district cases, as well as Washakie County School District #1 v. Herschler. Hytrek said there may be arguments made that the Legislature hadn't met its obligation to provide a uniform system of public instruction, or funds were being taken away from public schools.

"I would raise three basic issues in this realm," she said. "The first is with adequacy and equity of funding, the second is fulfillment of the basket of educational goods and services, and the third is the impact on Wyoming's public school finance system."

Among the legal requirements that Hytrek presented, Rep. Cathy Connolly, D-Laramie, had her own concerns. She said she had dealt with stakeholders in the past who wanted to create charter schools that didn't include special-education students or had extracurricular activities during the school hours that parents had to pay for. She said private schools having rules and regulations about who they admit or exclude could violate the Constitution.

"Any school that takes public money is obligated to educate all children equally and equitably," she said.

School choice defense

Two national school choice advocates came before the Education Committee to show avenues to create a school choice program that works for Wyoming, as well as relevant case law if it resulted in litigation.

Corey DeAngelis, senior fellow at the American Federation For Children, said the state has an open field when it comes to enacting different types of school choice programs. He recommended pulling funding from the general fund or another appropriation not for public schools, or funding the program privately through a tax credit scholarship, or a tax credit funded education savings account program.

"Nineteen states expanded or enacted school choice programs that allow the funding to follow the child to a private school in 2021," he said. "And in 2022, just a couple of months ago, Arizona passed the biggest school choice victory in U.S. history. Every single family, regardless of income, will be able to take their children's state-funded education dollars to the education providers that they're choosing."

Sen. Bo Biteman, R-Ranchester, asked whether these states faced legal battles after passing the legislation. Other legislators were doubtful if they could take action considering the extensive constitutional requirements, public education being guaranteed as a fundamental right and the funding systems in place connected to the mineral extraction industry.

DeAngelis said it was more likely than not that the states that enacted a program faced litigation because "teachers unions, in order to protect the status quo, will use every lever they can to try to trap kids in their schools, even if families want an exit option."

However, he said the school choice movement has been successful at the Supreme Court level, and it is a friendly environment.

In Carson v. Makin, the court held that Maine's exclusion of religious options from the state's high school "tuitioning program" was a violation of the First Amendment in the U.S. Constitution, and took away a parent's choice to select a religious school for their student. Espinoza v. Montana Department of Revenue also held that states can't prohibit families from selecting religious-affiliated schools in school choice programs.

EdChoice attorney Leslie Heiner, who has been involved with school choice litigation for the last 20 years, also saw an opportunity for Wyoming to take action.

She said the U.S. Constitution is supreme, and the two recent school choice cases declared that state constitutions that have provisions that are discriminatory against religious people or religious entities "are repugnant to the U.S. Constitution, and they cannot stand." She also provided examples of other states that have been successful in providing equity and equality, as well as the right to choose an education institution.

"Each state is unique, there's no question about it. But the one thing I've learned after all these years is that the school choice programs can be structured in a way that meets your constitutional obligations," she said. "So yes, Wyoming has nuance, but it's not fatal."

Jasmine Hall is the Wyoming Tribune Eagle's state government reporter. She can be reached by email at jhall@wyomingnews.com or by phone at 307-633-3167. Follow her on Twitter @jasminerhphotos and on Instagram @jhrose25.