We don't see any free public education here.
Some old-school property "sticks" analysis from the U.S. Court of Appeals for the Ninth Circuit in Zeven v. Jones, No. 23-35438 (Aug. 23, 2024), worth checking out.
The Idaho Constitution has a "free common schools" clause:
The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho to establish and maintain a general, uniform and thorough system of public, free common schools.
Idaho Const. art. IX, § 1.
According to some parents, the term "free" means that school districts cannot charge fees for "certain educational and extracurricular opportunities." In one case, the fees ranged from $4 for locker use, to a $32 optional fee to cover the cost of purchased items for a "health occupations" store. In another, the fees ranged from $15 to $300.
According to the plaintiffs, charging these fees violated their due process rights, and were a taking of private property without compensation. The district court granted the schools summary judgment, and the Ninth Circuit affirmed.
The court concluded that the "free common schools" provision in the state constitution does not create any private property rights that are protected by the Takings Clause. To qualify for takings protections, a property right must be (in the court's words) "vested" and a private right, which is determined by a somewhat circular analysis: a right is vested if it cannot be removed or modified without compensation. Slip op. at 22.
Because that doesn't really help, you might want to pay attention to this passage, where the court relies on certain "core" notions. Dust off those Real Property treastises and your Blackstone:
A claimed property interest can rise to the level of a vested private property right if it concerns “a ‘core’ notion of constitutionally protected property into which state regulation simply may not intrude without prompting Takings Clause scrutiny.” Ward v. Ryan, 623 F.3d 807, 812 (9th Cir. 2010) (quoting Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1200 (9th Cir. 1998)). “Property’s core meaning is determined by reference to traditional background principles of property law.” Id. (internal quotation marks and citation omitted).Tangible objects such as real and personal property fall within property’s core meaning. The Supreme Court has also extended Takings Clause protection to “the group of rights inhering in the citizen’s relation to the physical thing, [such] as the right to possess, use and dispose of it.”
Slip op. at 23-24.
Public education is not one of those things that fits "within this bundle of property rights." This is public education, and thus, "[t]he very manner in which public education is provided precludes Appellants from having a private interest in it because what constitutes public education (and therefore what constitutes free public education) can be changed by public entities as a matter of Constitutional right in Idaho." Slip op. at 24.
The opinion also contrasted "private property" as used in the Fifth Amendment with plain-old "property" as used in the Due Process Clause. The latter, the court held, protects a broader range of interests, including government-granted entitlements. Slip op. at 21-22.
There's also some "law of the case" discussion by the court, rejecting the plaintiffs' argument that one trial judge is bound by an earlier trial judge's interlocutory rulings. You know the answer to that one (our rule of thumb: until final judgment, everything is interlocutory and subject to change).
