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CHEYENNE—The constitutionality of a universal school voucher bill was discussed by Wyoming lawmakers in the Senate Education Committee Wednesday morning before they advanced it in a 3-2 vote.
Committee Chairwoman Sen. Wendy Schuler, R-Evanston, and Sen. Chris Rothfuss, D-Laramie, both voted against the bill, questioning how it would hold up in court. Schuler said she supports school choice, but her “biggest hangup is universal school choice.”
She said she preferred to see how the education savings account bill passed last year would impact state funding and hold up against potential litigation before making any changes to the program.
“I probably will vote against this bill, at least now in this present form,” Schuler said. “There’s a couple more things we need to do with it, and maybe I can get on board.”
House Bill 199, “Wyoming Freedom Scholarship Act,” passed through the lower chamber and over to the Senate amid a wave of constitutional concerns from both inside and outside the Legislature. Several representatives, both Democratic and Republican, argued this bill violates the state’s constitution by using state funds to help parents send their children to private schools.
The education savings account program was created through a bill passed by lawmakers in the 2024 budget session, which would have made $6,000 a year available for all parents to spend on non-public-school education or pre-K costs. Gov. Mark Gordon partially vetoed the bill, limiting it to those at or below 150% of the federal poverty level and questioning the constitutionality of anything other than assistance to low-income residents.
However, in HB 199, Rep. Ocean Andrew, R-Laramie, proposes several significant changes to the current program, which began accepting applications earlier this year.
As currently written, HB 199 removes the family income requirement, raises the per child amount from $6,000 to $7,000 and removes pre-kindergarten schools from program eligibility. The bill also changes the funding source from the state’s general fund to federal mineral royalties, which is one of several direct revenue sources for the School Foundation Program that funds K-12 public schools.
Rothfuss said last year’s bill “had some provisions that moved it toward constitutionality” that are removed in this bill. Such provisions include assistance to the poor and early childhood education.
“This legislation eliminates the pre-K and then eliminates any of the constitutional provisions that would have been protective, in my view, of making it unconstitutional,” Rothfuss said.
He read out loud Article 7, Section 8 of the Wyoming Constitution, which states no “portion of any public school fund ever be used to support or assist any private school, or any school, academy, seminary, college or other institution of learning controlled by any church or sectarian organization or religious denomination whatsoever.”
“The plain reading of that is pretty clear,” Rothfuss said. “The public funds are for public education. When we break down that system and erode that system, we create challenges, both constitutional challenges, as well as for the functioning of the public education system.”
The Senate Education Committee passed the bill on a vote of 3-2, but not without adding a few amendments. Rep. Jared Olsen, R-Cheyenne, asked Andrew about the funding source issue, since federal mineral royalties are already used to fund public schools. Olsen suggested using the state’s general fund, Wyoming’s main spending account, instead.
“If you remove the funding source the furthest you possibly could from the School Foundation account, and use general fund dollars, you would have the strongest argument against the constitutionality claim,” said Olsen, who was recently involved in the creation of a local charter school, Cheyenne Classical Academy.
In response, Andrew pointed to a provision in the bill where ESA money will tip back into the School Foundation Program after the ESA fund reaches a certain threshold. Once the account has more than $130 million and more than 150% of what is needed to meet the following year’s demand, the excess funds would go back into the School Foundation Program account.
Andrew added that the use of FMRs was recommended to him by lawyers who helped draft the bill “in the most constitutional way.” The Laramie representative said the FMRs were suggested to be the “simplest, clean source of money” for the bill.
“These same people have been involved with state Supreme Court cases and national Supreme Court cases on this legislation the whole way, so I trusted what they said,” Andrew said.
However, Wyoming Education Association spokesperson Tate Mullen said the bill remained unconstitutional, no matter where the funding came from. The state is constitutionally obligated to fully fund its public schools, and this obligation has yet to be fulfilled, Mullen said.
Earlier this session, legislative appropriators voted to reduce the recommended external cost adjustment to K-12 public schools by $17.5 million. The original $66.3 million, passed by former appropriators in the 67th Legislature and Gov. Gordon, was the recommended amount to get the state back on track to fully funding its public schools.
“You have the ability to fully fund a cost-based model of education, whether using whatever account you want to use, but we haven’t done it,” Mullen said. “We’re failing to meet our original obligation, yet we’re funding this.”
Olsen said he considered bringing an amendment to change the source of revenue to the state’s general fund, but is holding off for the time being. Sen. Charles Scott, R-Casper, said he wasn’t sure if this provision would make the bill constitutionally defensible.
“I don’t think you’re going to be able to tell until you actually get a court case,” Scott said.
Testing, certification
The original HB 199 removed the certification process for a private school that receives ESA funds. However, Rep. J.D. Williams, R-Lusk, managed to reinsert this language through an amendment during the bill’s second reading in the House.
Sen. Evie Brennan, R-Cheyenne, successfully added an amendment to “tighten up” the certification requirement. Her amendment expanded this language, specifying this process “shall ensure ESA students attending qualified schools receive instruction in reading, writing, mathematics, civics, history, literature and science throughout their kindergarten through grade 12 tenure.”
Wyoming senators also reinserted language for a nationally normed or statewide assessment requirement. HB 199 originally removed the testing requirement, and several attempts were made in the House to put it back in. Williams managed to successfully add an amendment during the bill’s third and final reading in the House that requires ESA students to be “assessed on their academic progress.”
Olsen proposed putting the original ESA language back in, but modifying it to give recipients the option to take either a nationally normed or statewide exam, to give the bill more “accountability.”
“I strongly believe that we need to put strong accountability back into the bill,” Olsen said.
Other amendments were added to the bill, including one that changed the name from the “Wyoming Freedom Scholarship Act” to the “Steamboat Legacy Scholarship Act.” Olsen said this new name is “a little more Wyoming.”
“We wanted to find a way to put the buck and rider on this bill, and so ‘Steamboat’ jumped out,” Olsen said.
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