A Uniform Choice? ESAs and the State Right to Education

Authors

Hadiah C. Mabry, University of Notre Dame Law School

Abstract

Education savings accounts (ESAs) are on the rise. Just since 2023, ESAs have been on the legislative docket in Alabama, Georgia, Iowa, Montana, Ohio, Texas, Tennessee, and Wyoming, with ESAs already active in eleven other states. These programs provide funds directly to parents on a per-child basis which can be used on any number of educational pursuits. While ESAs are relatively young in the world of school choice, they are also the natural outgrowth of a greater push toward educational freedom for parents. They join the ranks of more established programs like school vouchers, tax credits, and charter schools.

Unlike voucher and tax-credit programs where a child’s enrollment in school corresponds to a set dollar amount that a school receives, ESAs allow parents to spend each child’s funding in any number of ways. Parents may spend the entire amount on traditional schools, devote some money to tutors, or enroll their child in extracurricular activities after hours. And these are just a few of the plethora of options that ESAs allow. Parents don’t just choose schools: they choose classes and curricula.

The costs and benefits of ESAs are certainly a matter of live debate among legislators and policy advocates, but the legal viability of these savings plans is a separate pressing question. Even if ESAs are a good idea, are they constitutional? Many states are already facing legal challenges to their ESA programs, but there has been little scholarship on just how viable these claims might be.

ESA challenges often involve the right to education—a right included in most state constitutions. The exact wording of these state educational provisions varies extensively, but they generally require that the state establish “a system of public schools” with a range of adjectives like “uniform,” “efficient,” “suitable,” “adequate,” and “thorough”—often lumped together as “uniformity provisions” for the sake of simplicity.

These uniformity provisions have been central to school-choice litigation for a number of years, but it isn’t entirely clear how ESAs fit within past state court decisions. In one sense, ESAs are just another form of school choice and perhaps should fit side-by-side with vouchers or tax credit programs. But in another sense, ESAs require a closer look at what it means for a state to fund a “system” of public education when parents no longer just choose a school system. Should courts consider ESA funds to be squarely within a state’s system of public education? Should they be considered a separate legislative project? If separate, are ESAs constitutionally suspect if they undermine the existing system of public education? Some of these issues focus on the actual wording of state constitutional provisions; others center on the substantive guarantees underlying the right to education.

This Note uses past court decisions to argue that ESA programs fit well within the structural and substantive parameters of state uniformity clauses. Part I gives a consolidated history of uniformity clauses and the corresponding state right to education. Part II addresses past uniformity litigation and, in particular, the ill-founded use of expressio unius as a limiting principle in the state uniformity context. Part III then analyzes the constitutionality of ESAs within the substantive constraints of “adequate instruction” and “equal funding,” which have often been used by courts to add substantive weight to uniformity provisions.

ESAs are new. And with any new legislative experiment come new questions of legality. But whether or not ESAs are a good idea should be left to state policymakers—state uniformity provisions are no bar.

Recommended Citation

Hadiah C. Mabry, A Uniform Choice? ESAs and the State Right to Education, 100 Notre Dame L. Rev. 373 (2024).
Available at: https://scholarship.law.nd.edu/ndlr/vol100/iss1/6