Parents Suing State Claim Voucher Program Could Alienate Gay, Trans Students

A public school advocacy group’s court challenge against Wyoming’s budding school-choice program was assigned Monday to the same judge who handed the state a significant court loss in February.

That earlier lawsuit by the same group invoked some of the same language from the Wyoming Constitution. 

The Wyoming Education Association and a handful of parents (some of whom are also teachers) sued Wyoming, its superintendent of public instruction and the state treasurer Friday, alleging a burgeoning voucher program giving students publicly funded accounts to attend private schools or homeschool violates the Wyoming Constitution.

Some of the parents who have joined the lawsuit also claim that the voucher program discriminates against gay, transgender and nonbinary students because private schools could turn them away.

The school voucher program offers $7,000 in public money to students seeking alternate schooling on a first-come, first-served basis from a $50 million pot comprised of appropriations from two years.

The state Constitution calls for a “complete and uniform” system of public education. That phrase, through multiple high-profile court cases, has been interpreted to require that the state Legislature furnish a public education system that is “both visionary and unsurpassed.”

WEA and its co-plaintiffs say the voucher program runs afoul of that wording and violates the Wyoming Constitution’s limit of appropriations for educational purposes to entities “under the absolute control of the state.”

The plaintiffs filed that challenge in the Laramie County District Court, based in Cheyenne. 

On Monday, District Court Judge Catherine Rogers ruled that the “ends of justice would be best served” by assigning it to Judge Peter H. Froelicher. 

The Judge Who Wasn’t Having It From State Lawmakers

Froelicher also oversaw the Wyoming Education Association’s still-ongoing 2022 lawsuit against the state in which the public school advocacy group argued that Wyoming doesn’t fund education properly. Froelicher ultimately agreed, judging the case in WEA’s favor in February. 

The judge ordered the state to fix the problem: to align its funding of education with the state Constitution and the numerous cases equating it with an unsurpassed school system. He also ruled that he’s keeping jurisdiction over the case until lawmakers do so. 

The funding scheme must include providing a tablet for each student at school, paying for shortfalls in federal school nutrition programs and supplying school resource officers and elementary school mental health counselors, Froelicher concluded. 

That case is pending on appeal in the Wyoming Supreme Court.

Froelicher in his ruling drew from an earlier court’s pronouncement that the Wyoming Constitution as a fluid thing, moldable to the needs of each era. 

“Because the Wyoming Constitution is ‘in a sense, a living thing, designed to meet the needs of progressive society, amid all the detail changes to which society is subject,’ the Wyoming Constitution’s language must not be narrowly construed, but rather must be broadly construed,” wrote Froelicher at the time. 

Then Came Friday

With its newest challenge Friday, the WEA also called for the judge to block Wyoming’s voucher program, the Steamboat Legacy Scholarship Act, from going into effect while the case is pending. 

No hearing had been set for that argument as of Tuesday morning, a Laramie County District Court Clerk’s staffer said, noting that the case’s current phase is “still getting all the parties served.”

There’s another repeat theme in the new case: Hacker, Hacker & Kendall attorney Gregory Hacker — one of the three attorneys who composed WEA’s 2022 complaint — filed the Friday complaint.

Joining the WEA in the challenge are: 

• Jeny Gardner of Park County, who sues on behalf of herself and her child in public school.

• Christina Hutchison of Albany County, who sues on behalf of her children and herself, a special education teacher.

• Kathryne Pennock III of Natrona County, who sues on behalf of her children and herself, an educational support staffer.

• Chad Sharpe (a teacher) and Kimberly Ludwig-Sharpe of Natrona County, who sue on behalf of their child and themselves.

• Christina and Brandon Vickers of Washakie County, both longtime teachers, who sue on their own behalf and for their children. 

All of these parents pleaded in the lawsuit that their children receive federally-required special education or disability services and could be turned away by a private school if they were to try to access the voucher program. 

Some of them noted that their children are “queer,” transgender or nonbinary, and allege that private schools could not admit their children. Therefore, the voucher program funds potential discrimination that the public school system does not. 

Oversight

Because schools under the voucher program are not required to administer the same tests as public schools (but rather may choose from an array of different tests), and don’t have the same attendance and certification standards as public schools, WEA’s challenge claims the program lacks oversight.

“The Program largely relies on participating families to ‘certify’ that they will ensure students receive and education a will comply with the terms of the program,” says the complaint. “The only mechanisms the statute provides for the Superintendent (of public instruction) to ensure families are complying with the terms of the Program are anonymous fraud reporting and a requirement that two percent of accounts be audited each year.”

Megan Degenfelder, Wyoming Superintendent of Public Instruction, said she’s not surprised at WEA’s latest suit.

“Left wing lawfare is what they do,” Degenfelder told Cowboy State Daily on Tuesday. “But what deeply troubles me is the timing. The Education Savings Account program became law last year, with some changes made this year. To wait until two weeks before the funds are to begin distribution to ask for an injunction is devastating to the nearly 4,000 Wyoming families that have signed up for the program and the many service providers that are counting on those families. This is reckless and our Wyoming children are the collateral damage."

Clair McFarland can be reached at clair@cowboystatedaily.com.