Teachers unions have a long history of attacking choice. They see anyone who breaks free from the public school system as a threat. But Denise Lever faced a new source of opposition when she innovated in eastern Arizona.

Nothing happened at first following the launch of Baker Creek Academy, a tutoring and homeschool enrichment center that Lever set up in Eagar near the New Mexico state line. But after two years without incident, the Arizona Office of the State Fire Marshal decided she was running a “school.”

This designation can be fatal. It triggers a host of code restrictions intended for campuses serving hundreds or thousands of students with ballfields, playgrounds, cafeterias, auditoriums, hallways, offices, classrooms and nursing facilities. On the line are tens of thousands of dollars in mandated building changes — requirements unnecessary for other commercial buildings that serve children.

Baker Creek Academy needs none of this. It is a microschool, an intentionally small learning community, operating in a commercial space that previously served as a church. Many students come just four hours per day, four days per week. The goal is maximum flexibility.

Microschools have existed like this for decades. But the movement took off during the Covid pandemic, when lockdowns spurred dissatisfied parents to get creative. The result was a surge in educational innovation.

An estimated 10% of U.S. schoolchildren now gather in tiny groups, averaging just 16 students each. Old definitions do not always work. Microschools can overlap with public, private or homeschools. But they are something distinct.

Regulators have been slow to figure this out. Florida, Georgia, Tennessee, Texas, Utah and West Virginia have passed post-pandemic laws that ease restrictions on microschools. But most states lump them in with traditional schools in their education codes.

The threshold in Wisconsin is any “instructional program provided to more than one family unit.” The threshold in North Carolina is more than two families. Fire, zoning and building codes are separate and do not always align. The Arizona Department of Education, for example, defines a private school as “a nonpublic institution, other than the child’s home, where academic instruction is provided for at least the same number of days and hours each year as a public school.”

Under this standard, Baker Creek Academy is in the clear. Yet the fire marshal defines a school as any facility used “by six or more persons at any one time for educational purposes through the 12th grade.” Not even this standard is applied evenly. Only academic education counts. Facilities teaching the same kids different things like dance or karate are exempt from these burdens.

This was the fire marshal’s mindset when he came looking for code violations at Baker Creek Academy on April 1, 2025. Lever was stunned but did not wait for a cease-and-desist order. She fought back with free legal services from our public interest law firm, the Institute for Justice, and scored a victory the following month without litigation.

The resolution means Baker Creek Academy can stay open. So can three other microschools that share space with Lever. A similar victory occurred when we challenged a fire marshal in Cobb County, Georgia.

Elsewhere, code enforcers have gotten their way. State regulators fined parents $55,500 and shut down Kulike Learning Garden, a farm-based microschool in Hawaii. And an interpretation of a fire code in Florida forced Alison Rini to install a $100,000 sprinkler system — a mandate that would have killed her microschool if not for a timely donation.

Teachers unions and their allies use different weapons. The Arizona Education Association, the state’s largest teachers union, is working to roll back Arizona’s Empowerment Scholarships, which give parents educational savings accounts (ESAs) to spend on a broad range of needs, including microschool tuition. Save Our Schools Arizona also opposes ESAs, while blasting microschools directly.

People like Lever face threats from multiple directions. Our firm stands ready to help them with free legal services, but state lawmakers can make our work unnecessary by passing meaningful reforms.

This is the right thing to do. Educators should not need attorneys just to teach.

Michael Greenberg is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Virginia.