‘Legal zombie’ case keeps resurfacing in anti-school choice lawsuits

While most arguments against school choice aren’t new, opponents keep using a “defunct, discredited” Florida Supreme Court ruling from 20 years ago to fight education freedom today, a lawyer for EdChoice says.

The Bush v. Holmes case, which was cited in recent litigation in Idaho and Wyoming, is a “legal zombie” that keeps “haunting the legal landscape,” said Thomas Fisher, the organization’s executive vice president and litigation director.

At issue is whether the government’s responsibility to maintain public schools, or a “system of common schools,” means it can’t support any other form of school.

The Florida court “used contorted reasoning” to come to that conclusion and negate a fledgling school choice program in 2006, but the state has since become the largest school choice state in the nation with a robust education savings account program and more than 400,000 participants.

“Nobody respects Bush v. Holmes as an impediment to that program,” Fisher told The Lion in an interview. “I think the opponents of choice know that if they were to challenge the current Florida choice programs, ultimately they would probably lose in the Florida Supreme Court.”

Opponents hunt for an argument

So why do teachers’ unions in other states keep using the case to fight school choice – even if courts like Idaho’s found no need to comment on it in a unanimous ruling in favor of school choice?

“My assessment is they would rather have that old, defunct, discredited precedent to try to shop around to other states and put up with the program that’s going on in Florida right now than take the chance that that precedent would be expressly overruled, in which case they’d have nothing,” he said.

Courts in Indiana and Nevada have found the government’s requirement to maintain a school system “is a floor, not a ceiling,” freeing up 35 states to establish school choice programs, 18 of them broad or universal. A federal school choice tax credit takes effect next year, expanding choice to more states, although states must opt in.

Fisher said opponents have “lost all of the more high-profile” arguments, such as the establishment clause, which prohibits the state from establishing a religion – an argument made against allowing school choice money to go to religious schools.

“Now they’re trying to find anything they can in a state constitution, and this happens to be one of the few precedents that goes their way.”

EdChoice prevailed in the Idaho case last month. Fisher and other school choice advocates are currently involved in cases in Wyoming, Tennessee, Missouri, Arkansas and Ohio.

With 1.5 million school choice students and growing, Fisher wants supporters to know that anti-choice arguments are “based on some pretty flimsy theories and precedents.”

Then he doubled down.

“I’d really like for our opponents to put up or shut up. When it comes to that Florida precedent, either go into Florida and file a new lawsuit to challenge the existing program, which I think we would win on our side of the case, or quit citing that precedent because it’s just not respected.”