The Wyoming legislature had a recent change in leadership toward a more conservative body.
This body spoke for its voters and worked quickly to enact education choice law.
President Donald Trump personally endorsed the law on social media and praised those who worked on the bill.
Even within small Wyoming, it only took a few months for thousands of students to apply for these scholarships to escape the public system’s “one size fits all” approach. The volume of immediate applicants – nearly 4,000 by July 1 – should tell you everything you need to know about the status of our current public schooling system.
Whether it is the left-leaning agenda, poor proficiency scores, bullying or lack of safety, parents and students are exiting Wyoming’s public school system in droves.
The scholarship was to allow students the means to have funding distributed through Wyoming’s Department of Education so they could pay expenses like tuition and supplies.
The Superintendent of Public Instruction supports the program fully.
Nonetheless, a state judge stopped it in its tracks.
The Wyoming teacher’s union even went on record this week finally admitting that they believe it is their money, not the student’s, saying, “Public money belongs in public schools.”
The court supported their position and blocked the program during the case against it.
With a brush of the pen, thousands of students are now deprived of educational opportunities for which their families had planned.
Just four or five weeks from the start of school in many districts, this is a devastating blow to all of these students.
It would seem that the reason to block such a program that passed by a huge swath of the legislature would need to be significant.
Yet, the judge said in part, “The individual Plaintiffs assert irreparable injury because their students…who are non-binary, will not have equal access to funds and services under the Act because Certified Providers are permitted to deny those students admission.” Yes, this is where we are.
This line of reasoning runs afoul of the United States Supreme Court (SCOTUS) cases that spoke already.
The Wyoming judge wrote, “The legislature seeks to circumvent the prohibition on giving public funds for educational purposes to private persons, private entities, and sectarian institutions by passing the funding through the State Superintendent.”
But, Chief Justice Roberts has already delivered a binding opinion. He wrote that our federal constitution: “condemns discrimination against religious schools and the families whose children attend them,” and they “are “member[s] of the community too,” and their exclusion from the scholarship program here is “odious to our Constitution” and “cannot stand.”
Furthermore, other SCOTUS cases have already determined that the distribution of an equally available education fund is permissible and state Blaine amendments are unconstitutional.
Wyoming’s ruling flies in the face of the SCOTUS decision that school choice is a constitutionally protected federal right of parents to choose where and how their children are educated, as well as to receive state funding to help them access learning materials.
Perhaps if the public system used its funds to improve, instead of litigating to beg for money, it would see students want to return.
In Pierce v. Society of Sisters, SCOTUS said:
“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
In the Espinoza case, the U.S. Supreme Court referenced Pierce, saying, for those parents who choose to send their children to a nonpublic school, the state constitution, “penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.”
An important thing for Wyoming to note: The state constitution cannot limit the rights of the federal constitution. In essence, we can offer more protection to individuals, not less.
Former Wyoming Supreme Court Justice Keith Kautz, now state Attorney General, immediately filed an appeal to challenge the state judge’s monthslong or yearslong block on the school choice program.
But this could be a long road.
And we must remember that if we are not satisfied with the decision of a lower court we should petition the U.S. Supreme Court to hear that case.
Wyoming cannot make its own rules to circumvent the federal constitution because a bunch of fifth-generation Wyomingites decided that’s how we do it around here.
The protectionist agenda of a failing bureaucratic establishment has reached its end.
Cowboy State Daily columnist Cassie Craven is a University of Wyoming College of Law graduate who practices law in Wyoming. She can be reached at: longhornwritingllc@gmail.com
