While funds may be temporarily paused for the nearly 4,000 families approved to receive education savings account funding in Wyoming pending judicial review, they should not lose hope.
The law and common sense are on their side.
In his injunction earlier this month to halt the program authorized by the Steamboat Legacy Scholarship Act, Laramie County District Court Judge Peter Froelicher said he thought the legislation violated the Wyoming Constitution’s ban on direct appropriations to people, corporations or communities as well as to religious institutions or associations.
He also believed it conflicted with the Wyoming Constitution’s promise to provide a “complete and uniform” public education system. Third, he was concerned that the ESA program could harm plaintiffs – the Wyoming Education Association (WEA) and a number of public school parents – as some private schools might not accept their children because of their gender status; and that it could harm public schools as they likely would lose money as a result of students leaving district schools.
Let’s unpack these misguided arguments.
The Wyoming Constitution Article 3, Section 36 states, “No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.” Judge Froelicher and opponents of the legislation have seized on this passage as a “gotcha” against the program.
But that is a misreading of the ESA legislation. The law does not send money directly to families; it sends it to the Wyoming Department of Education, which then administers the funds according to the program rules. Wyoming already does this in many other parts of the government.
For example, it sends direct cash assistance to individuals, with funds coming from both federal and state sources, through the Wyoming Department of Workforce Services. It provides health insurance to low-income individuals via Medicaid through the Wyoming Department of Health. In addition, it gives state grants directly to nonprofits through the Wyoming Arts Council.
Do all those programs violate the Wyoming Constitution? No. Neither does the Steamboat Legacy Scholarship Act, as funds allocated for the program are administered through a state agency, just as the aforementioned.
Second, courts across the country have repeatedly addressed the issue of whether education savings accounts violate “complete and uniform” clauses in state constitutions. The verdict: they don’t. Research from Mountain States Policy Center shows that they are meant only as a baseline requirement or floor and do not ban additional programs
As noted by the West Virginia Supreme Court, “We find that the West Virginia Constitution does not prohibit the Legislature from enacting the Hope Scholarship Act in addition to providing for a thorough and efficient system of free schools. The Constitution allows the Legislature to do both of these things.”
And as Thomas Fisher, director of litigation at EdChoice Legal Advocates – interveners in the case along with the Institute for Justice – said, the requirement is “not a floor without a ceiling but a floor without a roof” in the case of Wyoming. He noted Article 1, Section 23 of the state constitution, which pushes the legislature to not only provide a suitable education but to “encourage means and agencies calculated to advance the sciences and liberal arts.” In other words, legislators are supposed to strive for excellence by reviewing and enhancing the state’s education program as necessary, not just accept the status quo.
Lastly, the idea that private schools would discriminate against some children is pure speculation without evidence. And as the state wrote earlier this month in its pleadings to dismiss the case, public school funding has always increased or decreased based on student enrollment.
The state’s brief said, “Funding is a means to an end, not the goal … Districts have no legal entitlement to additional funding beyond that required to educate their enrolled students. Accordingly, if student population reduces for any reason – whether the ESA program, the military base closing, or a bust in mineral development – the school district’s costs and funding are both affected. The school district is not legally entitled to more funding, so it cannot have a legally cognizable claim based on the funding being reduced with the model.”
For all these reasons, the Steamboat Legacy Scholarship Act deserves to stand, and the injunction against it should be reversed.
In the interim, Gov. Mark Gordon should opt Wyoming into the school choice enhancements created by the “One Big Beautiful Bill” that President Trump recently signed into law. That legislation will allow individuals to receive up to a $1,700 tax credit beginning on January 1, 2027. These funds come from donations to scholarship granting organizations, generating more money for school choice and giving families greater ability to find the school, tutor or curriculum best suited to their child or children. To access these funds, however, states must opt in first.
Combined, the state and federal education choice programs will unlock a new and more competitive and accountable education marketplace in Wyoming.
Marta Mossburg lives in Riverton, WY. She is a research fellow at Mountain States Policy Center, an independent research organization based in Idaho, Montana, Washington and Wyoming. Online at mountainstatespolicy.org.
