School vouchers are unconstitutional, bad for Wyoming public schools

Nobody knows.

That’s what lawmakers and experts said over and over again last week when asked if a proposed voucher system that would use public funds to educate kids in private and religious schools violates the Wyoming Constitution. 

It’s an illogical question because the Wyoming Constitution specifically prohibits such uses. So why are we even talking about this? The plan’s blatant unconstitutionality is all we really need to know. 

Yet the idea is being promoted by the Legislature’s leadership so intensely, that passage of some version of a school voucher bill — perhaps an even more harmful version preferred by the far right — seems a foregone conclusion. If that happens, the program’s fate will be decided by either the Wyoming or U.S. Supreme Court.

House Speaker Albert Sommers (R-Pinedale) is the key player in this enigmatic educational exercise called an Education Savings Account, another name for school vouchers. That might seem like an odd move, considering he kept a controversial voucher bill from being debated in his chamber earlier this year after it narrowly passed the Senate. That ESA measure would likely have won approval: it was co-sponsored by more than half of the representatives.

A voucher program, as promoted by anti-public-education politicians like Florida Gov. Ron DeSantis, is a way to end the public school system as we know it. But funneling money away from already-struggling public schools and redistributing tax dollars to private ones is not in the best interests of students, including disabled children these institutions aren’t required to enroll.

Sommers’ stomping on the voucher bill and two anti-transgender pieces of legislation prompted a hysterical reaction from national right-wing media like Fox News and NewsMax. Freshman Wyoming GOP Congresswoman Harriet Hageman, never a member of the Wyoming Legislature, took the unusual step of denouncing Sommers on Twitter for daring to block the “universal school choice” she’s fighting for.

Now, Sommers is back with his own voucher proposal, like a puppy with his tail between his legs. His proposal cuts the ESA from $6,000 per student to $3,000. It will cost the state an estimated $40 million. He added several provisions to supposedly make it more palatable. But it’s still a voucher bill and a terrible idea that’s likely to be tossed by courts after an extremely expensive and time-wasting legal battle.

Sommers’ bill would add early childhood education to the bill, which previously covered only K-12 students. That facet is a baby step toward a statewide preschool system that the Legislature has repeatedly rejected despite widespread public support and overwhelming evidence of its return on investment. 

His proposal also makes ESAs available only to children from low-to-middle-income families instead of everyone.

“I wouldn’t want to fund billionaires to put their child in a private school in Jackson,” Sommers said. That’s a good populist line aimed at building support. So is the inclusion of preschools.  

But is it constitutional, Mr. Speaker? “I’m not a Supreme Court justice in the state of Wyoming,” Sommers said, “so I’ll let them decide that.”

“I don’t think anyone can sit at this table today and tell you whether it’s constitutional or it’s not,” said Tania Hytrek, operations administrator of the Legislative Service Office. “There hasn’t been a case like it before the Wyoming Supreme Court.”

Education Committee Co-Chairman Sen. Charles Scott (R-Casper) said lawyers advised the Legislature that if the state uses general funds, and not money specifically dedicated to schools, the constitutional prohibitions on vouchers don’t apply. 

“Whether or not a court will buy that, I don’t know,” Scott said. “I don’t think anyone can tell you but that is the argument and I think it’s a credible argument.”

Voucher advocates pointed to two recent U.S. Supreme Court rulings that said a state doesn’t have to fund private schools with public dollars, but if a state does, it cannot discriminate against religious schools, which must also be funded.

But that’s not the case here, where both are prohibited by the Wyoming Constitution.

Rep. Martha Lawley (R-Worland) noted a 2020 case, Espinoza v. Montana Department of Revenue, in which the U.S. Supreme Court ruled in favor of a voucher system. The court tied the decision to an objectionable no-aid to religions provision in Montana’s constitution that was also adopted by many states — including Wyoming — out of bias against Catholics.

Will that be an issue in a Wyoming case? I’ll give you the standard answer: Nobody knows.

It’s also unknown whether a court will accept Sommers’ rationale for his ESA bill. He set an income eligibility limit of 250% of the federal poverty level — about $75,000 for a family of four — to qualify.

“I wanted to make this as constitutional as I can,” Sommers said. “And I wanted to make sure we hit the population of students that weren’t the richest of the rich, right?”

The Wyoming Constitution has a provision that says the state can only provide aid to an individual if it benefits the poor. Sommers said he thinks the limit in his bill does that, but several lawmakers suggested his figure was too high or too low.

Opponents of the bill don’t have the deep pockets of firms that can afford to hire a multitude of lobbyists and lawyers, like Americans for Prosperity, the ultra-conservative group founded by Charles and David Koch.

Tyler Lindholm, a former state lawmaker who heads AFP’s Wyoming operations, said the ESA program “could inspire people to think differently about education, and that’s not a bad thing.”

“[Think] about what’s possible when we move away from standardized schooling, where you have to do it this way, and move toward commoditization, or individualized learning,” Lindholm said.

Wyoming’s public schools have abundant opportunities for students to be individuals and not captives of a one-size-fits-all education model. 

Amanda Weaver, a mother and fifth-generation Wyomingite, provided the best advice to the committee.

Weaver said she supports early childhood education, but it doesn’t belong in Sommers’ unconstitutional bill and can be handled separately. She’s right.

“We keep hearing about how parents need a ‘choice’ in their children’s education,” Weaver said. “The fact of the matter is parents already have an option to pay for a private school education or to home-school their children.

“Public money belongs in public schools to educate every student, period,” she added.

Another opponent, Marci Shaver, Wyoming director of American Atheists, said the nation’s founders were adamant nobody should be taxed to pay for religious education.

“What I hear today is looking for all kinds of ways to get around it,” Shaver said. “I don’t care how many buckets you put it in, how many bank accounts you put it in, or how many private companies you hire to administer it, you’re still laundering tax dollars from people to pay for somebody else’s religious education. 

“You can’t change the fact, it’s unconstitutional to do that,” she said.

Observers watched lawmakers and lobbyists hem and haw for two hours and admit they have no idea if what they’re trying to do is constitutional. They’re counting on courts to find loopholes to give them permission to legally sabotage a public system that doesn’t need vouchers. 

The state is already being sued by the Wyoming Education Association for inadequately funding public schools. Rather than sinking public education, the state needs to provide more money to meet the constitution’s mandate to offer a free, equitable education for all students.