School choice advocates create legal partnership: Former solicitor general Fisher helps lead new initiative

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Former Indiana solicitor general Tom Fisher says he brings connections and expertise to his new role as vice president and director of litigation at EdChoice. (IL file photo)

An Indianapolis-based organization dedicated to school choice is beginning a partnership with the Institute for Justice to represent parents in court.

EdChoice announced Nov. 2 that it is launching the partnership, which comes in conjunction with the organization’s creation of its new litigation branch, EdChoice Legal Advocates, and the hiring of former Indiana solicitor general Thomas M. Fisher.

“When the opportunity came along to be involved in this, I thought, ‘Well, this is a great opportunity, and seems like a good time to kind of move on to the next chapter,’” Fisher told Indiana Lawyer.

Robert Enlow

Fisher joined EdChoice this year as vice president and director of litigation. He’ll also lead EdChoice Legal Advocates, the group’s new litigation arm.

“To realize Milton and Rose Friedman’s vision of universal choice, we must not merely create educational freedom programs, but also ensure they withstand legal challenge in state courts,” EdChoice President and CEO Robert Enlow said in a statement. “Just as we anticipate a need to help implement school choice, we also anticipate an increased need to represent parents and defend these statutes across the country. By partnering with IJ and launching EdChoice Legal Advocates, we will safeguard the Friedmans’ legacy and preserve choice programs for families.”

The genesis behind the partnership came from the Institute for Justice seeing a need to step back from the work it had been doing to defend school choice programs.

Michael Bindas

“We had finally resolved these major constitutional questions that we had set out to resolve and really had accomplished our primary goals in the school choice realm,” Michael Bindas, a senior attorney at IJ, said. The institute thus decided that it was time to metaphorically pass the torch of knowledge on.

“We identified a need for someone to kind of come to the defense of parents and education entrepreneurs to tackle these new governmental barriers that we were seeing, so it kind of was a natural time for us to take a step back from defending school choice programs and come to the rescue of these new education entrepreneurs and parents to ensure that they could continue pursuing this new educational opportunity that had been made possible by the educational choice programs that we had spent three decades defending,” Bindas said.

New focus

Bindas said the institute is not packing up and going home after their work on the national level. Instead, it’s shifting its focus to state-level work.

Scott Bullock

“IJ and EdChoice have worked together for decades to pass, promote and defend educational choice programs and we are excited about our new partnership to ensure vigorous defense of state programs throughout the country,” IJ President and Chief Counsel Scott Bullock said in a statement. “IJ has accomplished what it set out to do three decades ago: establish the constitutionality of educational choice programs and, in turn, make it possible for millions of families across the country to benefit from the opportunity that those programs provide. As we gradually hand the baton of defending choice programs to our friends at EdChoice, IJ will turn its attention to new work in the education freedom movement: tackling government-imposed barriers that stifle education entrepreneurship and parental freedom.”

As an example of its work on national school choice advocacy, Bindas pointed to the recent decision in Carson, as parent and next friend of O.C., et al. v. Makin, 569 U.S. ___ (2022).

In June 2022, the nation’s high court ruled 6-3 that a state may not prohibit families that participate in educational choice programs from selecting schools that provide religious instruction.

Bindas also pointed to Zelman v. Simmons-Harris, 536 U.S. 639 (2002), in which the Supreme Court ruled 5-4 that an Ohio school voucher program didn’t violate the establishment clause of the First Amendment as long as parents using the program were allowed to choose among a range of secular and religious schools.

“And while we resolved the major legal questions concerning school choice, the new innovations in education that resulted started running into some governmental barriers,” Bindas said of IJ’s transition. “We’ve started seeing government either try to shoehorn these new models of education into old regulatory frameworks that didn’t quite fit, or trying to impose new regulations that really stifle the innovation and the entrepreneurship that we were seeing.”

New partnership

According to Bindas, the partnership with EdChoice will span four years, with the first two years being a transition period.

“During that first two years, we will continue defending school choice programs as we have for 32 years. It’s just that we’ll be partnering with the lawyers from EdChoice on those cases to kind of give them the experience in litigating these cases and help train them on how to defend against these challenges, give them some kind of experience in litigating these unique constitutional issues that come up in the school choice context,” he said.

After the first two years, IJ plans to provide expertise or consultation as needed or to wrap up ongoing cases with EdChoice.

“We look forward to working with them,” Bindas said. “Obviously, they brought Tom Fisher on to head up this project, and he is an incredibly talented attorney and incredibly experienced attorney and someone who’s personally dedicated to educational choice. We look forward to working with him, as well as the new attorneys that he brings on to work on this project.”

New role

Fisher is currently working with Leslie Hiner, who is the EdChoice vice president of legal affairs and director of the Legal Defense & Education Center.

The current strategy, Fisher said, is to have him appear as co-counsel in cases where IJ is already litigating so he can learn the way they do things.

Fisher said they believe there will be more school choice programs enacted throughout the nation.

“As that happens, then, of course, there are going to be lawsuits,” he said. “I’m looking forward to kind of being there at the ground level with IJ.”

Fisher mentioned Teresa Meredith, et al. v. Mike Pence, et al., 984 N.E.2d 1213, which the state litigated a decade ago. In that case, the Indiana Supreme Court upheld the constitutionality of the state’s school voucher program.

“I was leading the state defense, and we were fortunate that IJ showed up and wanted to be part of it,” Fisher recalled. “And they have a couple of parents and their children they wanted to represent, and that was a great opportunity to have some beneficiaries kind of front and center to be the face of the program.”

Fisher said the transition from Office of the Attorney General, where he spent two decades, to EdChoice has been refreshing.

“Everybody here is really nice and lots of youthful energy around, which is just very invigorating,” he said. “And lots of lots of optimism and lots of excitement I found around the country, in the conservative legal movement and in the school choice movement about what we’re doing, and lots of people interested in working with us and helping us out, which is all exciting because, of course, this is a team effort in many respects, not just within EdChoice, but among participants in the school choice movement around the country.”

One of his next steps is to continue assembling his team, including hiring a paralegal and a couple attorneys.

“Once we have that team put together, then we’ll be ready to do some serious work,” Fisher said. “But until then, I’m working with several different folks here at EdChoice.”•

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