Arkansas education choice opponents want to challenge like
it’s 1999 – in Florida 

Arkansas education choice opponents want to challenge like it’s 1999 – in Florida 

The story: After trying once and failing, opponents of Arkansas legislation that established education savings accounts are trying again to shut it down with a lawsuit. 

The latest: The complaint, filed in circuit court by four parents of district school students, claims that the state’s 2023 law establishing the Education Freedom Account program violates the state constitution by redirecting tax money that would have benefited public schools. It says the state Supreme Court has “consistently upheld the constitutional requirement that public school funds may not be used for non-public purposes.” It also says the law will “drain valuable and necessary resources from the public school system and create a separate and unequal school system that discriminates between children based on economic, racial and physical characteristics and abilities.” 

 How it works: The EFA program, part of the comprehensive LEARNS Act, provides state funds for approved educational expenses, including private school tuition. The program is being phased in over three years, with eligibility reserved for low-income families the first year. Eligibility will be available to all students in the third year. 

Who has benefited: Since the law took effect last year, more than 5,400 students have benefited by receiving about $6,600 each in state funding. The law caps participation at about 14,000 students during the 2024-25 school year, with the award amount increasing to $6,900. 

Echoes of Florida: The Arkansas complaint raises similar issues to those in Bush v. Holmes, the 1999 case that challenged the Florida Opportunity Scholarship Program. Though the Florida Supreme Court sided with choice opponents, legal experts criticized the 2006 ruling as flawed and politically inspired. The Harvard Law Review said the court based its decision on “adventurous reading and strained application” of the Florida Constitution. 

Though lower courts found that the scholarship program violated the state’s ban on indirect aid to religious schools, the state’s high court sidestepped that issue, instead ruling that the program violated the constitution’s provision requiring a “uniform” system of public schools for all students. 

Chief Justice Barbara J. Pariente wrote that the program “diverts dollars into separate, private systems…parallel and in competition with the free public schools” and funds schools “that are not ‘uniform’ when compared with each other or the public system.” 

Leslie Hiner, vice president for legal affairs at EdChoice, said the Florida high court’s decision likely stemmed from the fact that Justice John Roberts had recently been appointed to the U.S. Supreme Court, possibly resulting in greater support for religious freedom. 

“That (Florida Supreme) court did everything they could think of to walk all around the religious liberty claims,” she said. “The widely held belief was that the court could see that if they were to rule on the religious liberty issue, this case was going to go up to the United States Supreme Court. No one on the other side of school choice wanted to see that happen.” 

Then as now: Fourteen years later, that question went to the U.S. Supreme Court, which issued two rulings in 2020 and 2022 that settled the religious freedom issue. Espinoza v. Montana and Carson v. Makin prohibited states with education choice programs from banning religious schools from participation.  

After those landmark decisions took the religious question off the table, opponents have turned to Blaine “variants” that they argue ban all private schools from participating. They also are relying on state constitution language that they say limits governments to spending on public schools. Thus, the claims that the Arkansas constitution prohibits funding for any system which is free and not public,” echoing the claim in Holmes that Florida could not establish education systems that are “parallel and in competition” with public schools. 

Past as prologue: Hiner said that despite the choice opponents’ victory in the Florida case, the Sunshine State went on to become a national leader in education choice programs passing universal eligibility education savings accounts in 2023. Today, 31 states, the District of Columbia and Puerto Rico have passed school choice policies. 

“We didn’t think that position [in Holmes] would have the kind of validity that would stick on other states, and we were right about that,” Hiner said. 

Watch list: The Alaska Supreme Court is scheduled to hear oral arguments Thursday in an appeal of a trial judge’s ruling that struck down its allotment program. The program, which had been in place since before Alaska gained statehood, offered correspondence courses to students in remote areas but was changed over the years and most recently functioned as an education savings account. Arguments begin at 10 a.m. Anchorage time. You can watch the livestream here.


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