Gordon narrows ‘education savings account’ income eligibility, signs bill into law

Governor cites constitutionality concerns in his decision to lower poverty-level eligibility standards for families that opt for state money to pay for private education costs.

Gov. Mark Gordon cited constitutionality concerns Thursday night when he vetoed portions of a bill that gives families state funds to pay for private, pre-K and homeschool education costs. He signed the remainder of the measure into law.

The governor’s changes effectively narrow eligibility for “education savings accounts” to lower-income earning families.

Whether House Bill 166 – Education savings accounts-1 breaches a separation of church and state — another constitutionality concern repeatedly lobbed during its formation — remains in question.

In his line-item veto, Gordon narrowed the income eligibility standards by removing families on the wealthier end of the spectrum. The bill had a tiered system based on the percentage of the federal income poverty level — $6,000 for families earning 150% or below; $4,800 for families earning 150%-200%; $3,600 for families earning 200%-250%; all the way up to $400 for families earning 450%-500%. For a family of four, 500% of the federal poverty level is an annual income of $156,000.

Gordon eliminated eligibility for all but families at or below 150%.

“While the intent to support education and parent choice is commendable, my analysis revealed practical and constitutional complications within the bill’s provisions,” the governor wrote in a letter explaining his vetoes. He pointed explicitly to the Wyoming Constitution’s prohibition on the state giving money to individuals “except for the necessary support of the poor.”

Questions of constitutionality have swirled around the measure since it was first proposed in an interim committee last summer. Along with the “support of the poor” concern, critics have pushed back on the legitimacy of giving state funds to religious schools.

In his letter, Gordon allowed that the bill “poses a risk of allocating funds to sectarian and religious schools, which might potentially violate provisions in our Wyoming Constitution that explicitly prohibit the allocation of public funds to such entities.”

However, he wrote, “I am prepared to risk that potential as well as concerns relating to the appropriation of state funds to religious societies or institutions also explicitly prohibited by Wyoming’s Constitution.”

A rocky road

Gordon’s vetoes join many changes to legislation that traveled a rocky road to arrive on his desk. It was killed and revived, amended more than 30 times and contested by everyone from the Wyoming Education Association to homeschool parents. At one point it had been changed so substantially in the Senate that an original sponsor said it was unrecognizable.

The saga has roots in the 2023 session and reflects growing conservative advocacy for parental choice as well as tension around what a state can lawfully do to provide that choice.

A pair of 2023 bills would have given families $6,000 per K-12 student for tuition at any non-governmental school or related educational expenses. Those bills failed, but a new proposal that would extend the money to early childhood education costs emerged during the interim session. Speaker of the House Albert Sommers (R-Pinedale), who helped to block one of those 2023 bills, touted the legislation as a compromise for those clamoring for more early childhood funding and those who want to support parental choice for options like private school or homeschooling.

Sommers’ bill proposed “education savings accounts” for qualified families to spend state funds on costs associated with preschool or non-public-school education.

Though it was committee-sponsored, which traditionally translated to a better chance of success, it failed introduction on the first day of the session.

Rep. Ken Clouston (R-Gillette), along with co-sponsors in the Senate, then introduced the latest version. This one included a tiered-income system, providing $1,000-$5,000 based on family income. It also allowed expenses for kids as young as 4.

It passed the House relatively unscathed before coming to the Senate, where lawmakers stripped it of income qualifications and pre-K eligibility. The House declined to accept that version, sending the legislation into a process of negotiation that resulted in the final iteration.

After the governor announced his line-item veto, Clouston said in a prepared statement that while he appreciated Gordon’s concerns, the decision to narrow eligibility for education savings accounts “removes the flexibility in academic choice that Wyoming people have been asking for.   

“Although this is a step in the right direction for expanding educational choices and opportunities, I have concerns about how the action taken on this bill severely limits the number of Wyoming families who can access the educational freedom they want and need,” he said.

Is it constitutional?

Questions of constitutionality have plagued the measure since day one. The state constitution prohibits public funds for private or parochial schools.

Wyoming Education Association representatives have repeatedly told lawmakers that no defensible argument exists that the bill is consistent with the Wyoming Constitution.

In a statement to WyoFile, WEA President Grady Hutcherson said his organization appreciates the line-item veto “because it recognizes and attempts to remedy some of the constitutionality issues posed by House Bill 166.”

However, he continued, the WEA “maintains that any funding of private and parochial education achieved through the dollars of Wyoming taxpayers is unconstitutional.

“This bill becoming law is a massive blow to our public education system,” Hutcherson said. “It is a reckless, negative program that eats away at the already-limited resources available to support the 93% of students enrolled in our public schools.”

Others, however, dislike the vetoes but support the bill.

“We’re incredibly disappointed in Gov. Gordon’s changes,” said Tyler Lindholm, state director for Americans for Prosperity Wyoming, a school-choice advocate. The veto creates a “cliff effect” in the law, he said, where families could get kicked off the program for earning a pay raise at work, for example. For a family with three enrolled children, he said, that means they could suddenly be out $18,000.

Faced with that choice, he said, he would personally “have to work against getting that raise, of bettering myself, of self-actualizing, of doing all of these things to better my family.”

Despite that, Lindholm said, the law’s passage is a win. “We’re going to keep working on it. That’s the message that I’m conveying, is that we’re not done. Not by a long shot.”

Americans for Prosperity Wyoming ultimately wants to find a way to make the program universal. Lindholm believes there is a constitutional way for Wyoming to do so, he said. “A lot of these needles have been threaded in other states.”

Given the state’s boom and bust economic fluctuations, Gordon wrote, he is concerned about potential impacts on ESA students when funding may need to be redirected to cover shortfalls in public schools during downturns.

Ultimately, he wrote, Wyoming must ensure that any allocation of state funds aligns with its constitution while simultaneously serving a clearly defined public interest and providing equitable returns for the state’s investment.

“Failure to address these concerns could expose the program to legal challenges and undermine its viability and legitimacy,” he continued. “That would be unfortunate.”

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.

This story was posted on March 22, 2024.