The Herzog Foundation operates out of a headquarters in Smithville (Annelise Hanshaw/Missouri Independent).
A trio of parents and a national advocacy group are seeking to intervene in opposition to a lawsuit filed by Missouri’s largest teacher’s union challenging the constitutionality of $51 million in state funding for a private-school voucher program.
Helping them in their efforts is Todd Graves, a prominent Kansas City attorney and chairman of the Herzog Foundation, which participates in the voucher program through an affiliated nonprofit connecting Missouri students and private schools with scholarship funding.
Graves is also a member of the University of Missouri Board of Curators. He filed the motion to intervene in the case in Cole County circuit court last week.
The lawsuit targets a state tax credit program called MOScholars that relies on nonprofits like the Herzog Foundation — called “educational assistance organizations” — to gather donations and distribute scholarships to students in private, parochial or home schools. Donors can receive a tax credit equal to 100% of their contribution but can use it to cover no more than half of their state tax liability.
However, the budget signed by Gov. Mike Kehoe includes an injection of general revenue to the MOScholars program, budgeting $50 million in taxpayer funds for scholarships and $1 million to assist marketing the program.
The three parents seeking to intervene in the lawsuit — one from Kearney, one from Kirkwood and one from Springfield — say they’ve used MoScholars and expect their families to benefit from the influx of state money.
They are represented by EdChoice Legal Advocates, an Indiana-based nonprofit that advocates for school-choice measures. Graves filed the motion to intervene because he’s a licensed attorney in Missouri.
“Missouri families depend on MOScholars to afford educational options that best fit their children’s needs,” said Thomas Fisher, director of litigation at EdChoice Legal Advocates. “We are proud to support these brave parents who are stepping forward to defend and protect the expansion of the MOScholars program.”
The lawsuit, filed by the Missouri National Education Association and two public school teachers, argues a direct appropriation of taxpayer funds to MOScholars is unconstitutional.
The 2021 law that created MOScholars only prescribes the use of tax-deductible donations to educational assistance organizations as its funding source — not general revenue. The lawsuit contends that a direct appropriation to the program effectively changes the MOScholars law, and changing state statute in a budget bill is not allowed.
Plaintiffs had hoped a Cole County judge would expedite the case so that a temporary restraining order could be in place before state money is dispersed through the voucher program.
Missouri Attorney General Andrew Bailey argued his office needed more time to prepare for the case, citing recent departures of two top aides who would have been involved in the litigation.
“A rushed response could lead to inadvertent admissions or incomplete answers, which would unfairly prejudice the defendants’ ability to present a full and fair defense,” the attorney general’s office said in its filing.
The judge agreed with Bailey, and arguments over the teacher’s union request for a temporary restraining order are set for late August.
Critics of Missouri’s voucher program argue that shifting state resources into private schools could hurt public education around the state. That’s especially true, they contend, in rural Missouri, where there are few options for private or religious schools.
“Politicians in Jefferson City and their privatization lobbyists are stealing from our kids,” Missouri NEA President Phil Murray told The Independent last month. “In rural Missouri, that $51 million means losing our music teacher, canceling basketball and watching our schools crumble. They’re killing our small towns.”
Proponents argue the program is a vital resource for families who do not feel public schools are the best option for their children.
Libby Eversgerd, a single mother of four from Kirkwood and one of the parents seeking to intervene in the lawsuit, said her daughter struggled in public schools before eventually dropping out. When her son started having similar issues years later, she was able to use MOScholars to help enroll in a private school where she says his grades and attendance improved dramatically.
“The recent expansion of the program is constitutional,” EdChoice’s Fischer said, “and will expand education freedom for low-income families and students with learning differences.”
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