School choice winning but teachers union empire striking back

The school choice movement is winning like never before, but government school defenders are doing all they can to protect their monopoly.

In the wake of extended school shutdowns, second-rate Zoom school, and politicized classrooms, 19 states last year enacted 32 new or expanded education choice policies, making it "The Year of Education Choice." 

The broadest new school choice policy enacted in 2021 was West Virginia’s Hope Scholarship, a K-12 education savings account (ESA) that empowers nearly all families, regardless of income, to take their children's state-funded education dollars to the education providers of their choosing, whether it be a public, charter, private or home school.

All West Virginia students who are switching out of a public school or entering kindergarten are eligible to receive an ESA starting this fall. 

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On Thursday, Arizona went even further when Gov. Doug Ducey signed into law the nation’s most expansive education choice policy. Just over a decade ago, Arizona became the first state to offer ESAs, but the policy was initially limited to students with special needs. State lawmakers have repeatedly expanded eligibility, and now every K-12 student in Arizona will be eligible to receive an ESA.These are massive gains for American families, but supporters of school choice shouldn’t let their understandable euphoria subside into complacency. Defenders of the status quo are vigorously mounting a counteroffensive to delay, block and undo the choice reforms.

We have entered the "Empire Strikes Back" phase of the fight for school choice.

In West Virginia, union-funded opponents of choice immediately sued the state to block implementation of the ESA. On Wednesday, a trial court judge – who had been endorsed and funded by the teachers’ unions – sided with the plaintiffs, declaring the ESAs unconstitutional and prohibiting the state from implementing the policy. 

More than 3,000 students had already signed up for ESAs, expecting to be able to use them during the next academic year. Now they are in limbo until the lawsuit is resolved.

According to the judge, the state constitution’s requirement that the legislature provide "for a thorough and efficient system of free schools" means that it can only pay for public schools and no more. But a plain reading of the text finds no such limitation. The requirement to do X does not imply a restriction from doing Y and Z in addition to X.

West Virginia Attorney General Patrick Morrisey has already declared that his office will appeal the decision, which he called "legally incorrect." He expects the state supreme court will reverse it. 

On the same day, the anti-school choice group Save Our Schools (SOS) of Arizona declared their intention to refer the ESA expansion to the ballot. If they can gather the requisite 119,000 valid signatures by Sept. 25, then the expansion will be put on hold for two years pending the results of the referendum during the 2024 election.

SOS is apparently confident of stopping the expansion due to the success of their similar referendum, Prop 305, in 2018. In that referendum, Arizona voters rejected an expansion of the ESA by a nearly two-to-one margin.

Or did they? That’s the narrative SOS wants people to believe, but the reality is much more complicated. Though voters resoundingly rejected Prop 305, their motives are murky. 

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Some major school choice groups, such as the American Federation for Children, also opposed Prop 305, albeit for a very different reason. Due to Arizona’s Voter Protection Act, any policy enacted by the voters requires a three-fourths supermajority of the legislature to modify. That meant the proposition’s cap of only 30,000 ESAs would, for all intents and purposes, be set in stone. It would have also made it nearly impossible to tweak the policy going forward. 

In other words, many voters opposed Prop 305 not because it went too far, but because it didn’t go far enough.

This time is different. Arizona’s recent ESA expansion does not limit the number of participating students, so national school choice groups are going to put up a fight. Additionally, public support for school choice has reached all-time highs following the COVID shutdowns. According to a recent Morning Consult poll, two-thirds of Arizona citizens support ESAs, as do three-fourths of parents of school-aged children. 

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Defenders of the government school empire in Arizona and West Virginia are afraid that if families get a taste of education choice, they won’t want to give it up. It’s easier to prevent them from exercising the ability to choose at the outset than to try to take that choice away later.

Even opponents of school choice understand that, in the long run, they cannot stop its advance because families want more education options. All opponents can hope for is to slow it down. For the sake of all children – who need more options now – let us hope that they do not succeed.

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Corey DeAngelis is a senior fellow at the American Federation for Children.