Despite controversy, bill to create education savings accounts passes interim committee

CASPER — The marathon ended with seemingly no one happy, but Wyoming is one step closer to education savings accounts that would, for the first time, give families money they could put toward private schools, tutoring and other educational services. 
 
Members of the Joint Education Committee spent hours last week wrestling with a bill put forward by Speaker of the House Albert Sommers, R-Pinedale, which has the potential to drastically reshape K-12 schooling in Wyoming. 
 
Under Sommers’ original proposal, select families could apply for “education savings accounts,” similar to school vouchers, that would entitle them to thousands of dollars per student. They could then use that money for a range of educational expenses, including school uniforms, textbooks, summer programs and – most notably – tuition to private and religious schools. 
 
According to school choice advocates, the system would put more power in the hands of parents and students. 
 
To critics, it would undermine Wyoming’s public education system. 
 
Lawmakers on the panel struggled to come to any consensus on the draft or the roughly dozen changes they put forward. The bill ultimately passed by a thin 8-6 vote and will advance to the 2024 legislative session, but it did so without the support of some of the staunchest advocates for savings accounts, who argued that the program was watered down and far from the Legislature’s original intent. 
 
Others on the committee maintained that the system would run afoul of the Wyoming Constitution and would come at the cost of public education in the state. 
 
Many of the same disputes that have dogged Sommers’ bill, as well as a similar proposal last session, again went unresolved, leaving the final fate of savings accounts in Wyoming unclear. 
 
“We don’t know if it’s even gonna pass constitutional muster, let alone how that program is gonna be implemented,” said Rep. Karlee Provenza, D-Laramie. “ … There’s a lot of questions on all of it.” 
 
How it would work 
 
When introducing his draft, Sommers admitted that he helped to block the Wyoming Freedom Scholarship Act, which would have created a similar education savings account program, during the 2023 legislative session. 
 
However, he said, the issue deserved discussion and he was now more open to allowing parents to put money from the state toward private schools. 
 
Despite their overlap, Sommers’ proposal would look significantly different from the Wyoming Freedom Scholarship Act. (Sommers’ draft was later amended by the committee.) 
 
The Wyoming Freedom Scholarship Act would have given any family who applied $6,000 per student with a $30 million cap on all education savings accounts in the state. It would have applied only to K-12 students. 
 
Under Sommers’ proposal, families at or below 250% of the federal poverty level could apply for the $3,000 education savings accounts. A family of four would have to make approximately $75,000 or less to qualify, according to current federal poverty guidelines. 
 
In total, the state would use $40 million from Wyoming’s general fund to support the program. 
 
Half of that money would go toward K-12 students, while the other half would go toward early childhood education, including paying for preschool. 
“What makes this bill really good is the fact that we bring in early childhood,” Sommers said. “And I think what I tried to do in my effort was to clean up a lot of the unconstitutional pieces of the bill.” 
 
According to Sommers, the Wyoming Department of Family Services estimates that there are roughly 3,400 low income children who would qualify for the preschool side of the program. 
 
Caitlin Lee, the state advocacy director for EdChoice, a national school choice advocacy group, testified that about 41% of Wyoming families would qualify for the savings accounts. 
 
However, even for the families who do meet the requirements, the savings accounts would be first come, first served. 
 
While placing limits on the program might seem counterintuitive amid a push by some lawmakers and parents for greater school choice, Sommers said the requirements help to address some of the constitutional concerns of education savings accounts. 
 
Ahead of the Joint Education Committee’s meeting in August, the Legislative Service Office produced a memo highlighting six separate constitutional issues that could ensnare the program even with Sommers’ changes, including bans on giving state funds to religious organizations and “any person, corporation or community not under the absolute control of the state.” 
 
The Wyoming Constitution does include an exception “for necessary support of the poor,” a provision that Sommers’ income limits are meant to meet. 
 
Sommers said he was amenable to a number of changes the committee might make including adjusting the split between K-12 and early education and increasing the money that families receive. 
 
But he maintained that the latest version answered some of the persistent concerns about education savings accounts while still giving families more educational options. 
 
“I’ve come to believe that if we are funding education with whatever means, it’s probably worth it,” he said. 
 
Is the money public? 
 
Education savings accounts and school vouchers are often used interchangeably, but the two have subtle differences. 
 
School vouchers allow parents to take public funding and put it toward private schools, including those that are religiously affiliated. The money often covers all or some of what a child would have received in public schools, according to NPR. 
 
Education savings accounts set aside public money for parents that they can then use on much broader educational expenses, such as tutoring and textbooks. They can also put that money toward tuition at any private school or homeschooling their child. 
 
Both programs vary state by state. 
 
Historically, they have often targeted students with disabilities, low-income families or those in poorly performing school districts, according to Education Week, a publication that covers K-12 education. 
 
As of late, states have increasingly sought to expand them amid a national push from school choice groups and conservative lawmakers. 
But for places like Wyoming creating either can be difficult. 
 
Many states have “Blaine Amendments” which bar them from giving public dollars to religious organizations, including religious schools. In addition to a Blaine Amendment, the Wyoming Constitution prohibits the use of “any portion of any public school fund” for private schools under Article 7, Section 8. 
 
In recent years, the U.S. Supreme Court has ruled twice against a tax credit scholarship program in Montana and a tuition program in Maine, both of which prohibited families from using the money for religious schools. 
 
In both instances, the majority of justices concluded that the Blaine Amendments in Montana and Maine violated the free exercise clause of the U.S. Constitution by preventing schools and parents from receiving public benefits because of their religion. 
 
Nathan Winters, the president of the Wyoming Family Alliance, a conservative religious advocacy group, urged lawmakers on the Joint Education Committee to push ahead with the education savings accounts, saying the courts would strike down Wyoming’s own Blaine Amendment.
 
“If we go to court, it will fail,” he said. “It will fail hardcore.” 
 
Yet those on the panel still struggled with the construction of education savings accounts given Wyoming’s constitutional limits. 
 
Rep. Ocean Andrew, R-Laramie, who introduced the Wyoming Freedom Scholarship Act last session, told lawmakers that how the program is structured is key. With education savings accounts, the state would set aside the money in an account for each student. Parents would then withdraw that money to pay for tuition or other educational services. Essentially, the parents act as a middle man, a go-between so that it’s the parents — not the state — directing the money to private or religious schools. 
 
“The foundation of the argument we’re having is: Is it public money, or is it private money?” Andrew said. “Because if we were to change this on the basis that this is public money, then this whole bill actually probably is unconstitutional. 
 
“The point of this and the way we make it constitutional is that this becomes private money when it’s in an [education savings account] and the parents can appropriate it,” he said. “If we’re just giving public money straight to private schools, then there is a problem with that. But if we’re allowing parents to use it and direct it themselves to where it goes, then we don’t have an issue with it.” 
 
Though advocates of the program like Andrew were confident that education savings accounts would stand if challenged in court, Tania Hytrek, an administrator with the Legislative Service Office, told the Joint Education Committee in August that the outcome was far from certain. 
 
“I don’t know that anyone can sit at this table and tell you definitively this is constitutional or it’s not constitutional,” she said at the time. “There hasn’t been a case like this before the Wyoming Supreme Court. There hasn’t been a case like this before the United States Supreme Court taking into consideration Wyoming’s constitutional provisions and our school finance litigation.” 
 
Sommers told those on the panel that, like many, he has often wrestled with using public dollars for private education. But he said he had reached a conclusion. 
 
“I think the fact that we’re providing dollars for education, however that occurs, is a good thing,” he said. 
 

 
More questions and little consensus 
 
The majority of those who testified at the hearing spoke in support of education savings accounts, saying they would give families more choice and allow parents to direct the education of their children.
 
“As Catholic educators, we believe that parents are the primary educators of their children,” said Melissa Whelan, the principal of St. Anthony Tri-Parish Catholic School in Casper. “And all parents should have the choice in where, how and why their children receive an education.” 
 
Yet for many supporters the proposal didn’t go far enough. 
 
According to Whelan, St. Anthony’s tuition runs approximately $5,000 for K-8 and $6,000 for preschool, but the school spends more than $12,000 on each. 
 
Winters, the Wyoming Family Alliance president, highlighted the average private school tuition in Wyoming, which he said runs about $7,000 for elementary schools, in calling on lawmakers to raise the money for students. 
 
Dicky Shanor, the Wyoming Department of Education’s chief of staff, told lawmakers that State Superintendent of Public Instruction Megan Degenfelder supports the plan but wants to see more money for each student and the program opened to all Wyoming families. 
 
“She generally has a philosophy that increasing options and choice in education results in better outcomes for students, and that’s really what we aspire to accomplish with any policies,” he said. 
 
Sen. Bo Biteman, R-Ranchester, sought to redress some of the concerns from school choice advocates as the panel began working the draft bill on Wednesday morning. He moved to entirely replace Sommers’ bill with the version of the Wyoming Freedom Scholarship Act that passed the Senate last session, calling it the “real school choice bill.” 
 
Appealing to those on the panel, Biteman said Sommers’ version was “watered down” and didn’t give families enough freedom. 
 
“If we start out with a crap sandwich, Mr. Chairman, we’re going to end up with a crap sandwich without the bread,” he said. 
 
Biteman’s motion failed after Sen. Chris Rothfuss, D-Laramie, and others cautioned that removing the bill’s income limits would put the program in greater conflict with the Wyoming Constitution. 
 
But it sparked a series of amendments that reshaped Sommers’ proposal, raising the money per student to $5,000 and tilting the program toward K-12 students, reducing the amount of money available for early education. 
 
School choice advocates were most vocal and won gains at the hearing, but education savings accounts continued to face opposition from some. 
 
Tate Mullen, the government relations director for the Wyoming Education Association, objected to the use of general fund money for private and religious schools, contending that Wyomingites already have choices with public schools. 
 
Unlike the advocates who said it wasn’t expansive enough, Mullen argued that Sommers’ income limit was too high. Ultimately, an education savings account program would harm Wyoming’s public schools, he said. 
 
“The costs of these programs only increase exponentially, diverting much needed funding from our K-12 system,” Mullen said. 
 
Throughout the hearing, lawmakers on the Joint Education Committee struggled to grapple with the costs of creating education savings accounts. Even as supporters of the proposal tried to expand eligibility and raise the allocation for each student, they held few discussions about the financial consequences for the state. 
 
But to Rothfuss, the tradeoffs of the program are clear, as are the reverberations for Wyoming’s budget. 
 
“Either we increase the number of dollars [for each education savings account] and decrease the number that are eligible, or vice versa,” he said. “Or, we increase the general fund appropriation.” 
 
Those questions will loom large during the 2024 legislative session. 
 
Nationally, 9% of students attend private and religious schools, according to the National Center for Education Statistics. If that were to translate to Wyoming’s education savings accounts, the state would have to spend more than $41 million a year on K-12 students alone. It would be even more if lawmakers include preschoolers in the bill. Both would be a fraction of the state’s overall annual education budget, but they would have real repercussions for Wyoming’s finances. 
 
For school choice advocates, though, there’s only one way forward. 
 
“Let the funding follow the backpack,” Whelan said.
 
This story was published on November 22, 2023.