Last week, a county judge in Ohio, Jaiza Page, ruled that the state’s EdChoice scholarship programs are unconstitutional. Recognizing that halting them immediately would be very disruptive, she allowed the program to continue operating during the appeal process. After decades of court cases, which have mostly upheld educational choice programs, how are we still at this point?
The first modern school voucher program, which provided private school scholarships for low-income students in Milwaukee, was passed in 1990 by a bipartisan coalition led by State Rep. Polly Williams (D). The program passed constitutional muster in 1992, after the “education establishment”—several organizations representing teachers, school administrators, and school boards—challenged it. After the voucher program was expanded to include religious schools, the establishment challenged it again—and lost again.
Since then, the US Supreme Court and most state supreme courts have generally ruled in favor of various school choice programs that allow funding to follow students to a variety of educational options. While each state’s education language is unique, the issues raised in the Ohio case look very familiar.
By creating a universal voucher, did the Ohio legislature create a system of nonpublic schools? Two of the main arguments made in support of this idea relate to how schools receive the scholarship funds and the ability to set admission standards.
- When states first enacted voucher programs, payments were made by checks that were written to parents, who then endorsed them to the schools. Now that electronic payments are the norm, funds are transferred electronically to the schools, and parents approve them electronically. Opponents of parental choice claim this means the state is funding nonpublic schools, not children. But since schools only receive the funds if the parents choose to send their children, this claim is clearly false.
- The EdChoice program allows schools to set their own admissions requirements, which opponents claim means it is schools, not parents, who have choice. But schools can’t force kids to attend—only parents can make that choice. And, again, the funding only reaches the schools if parents make that choice.
It’s clear that EdChoice scholarships are a funding mechanism that can be used at a variety of schools and did not create a system of schools. Yet Judge Page ruled yes on this point.
Has the EdChoice scholarship program caused the state to fail in its constitutional mandate to provide a “thorough and efficient system of common schools”? The judge ruled yes on this issue as well, saying the funds provided for scholarships could have been used to increase funding at public schools instead. But this ignores a simple truth that has been proven time and again: to those who make a living through public schools, no amount of funding is ever enough. For example, since the lawsuit was filed in 2022, state funding in Ohio has increased significantly. In the 2023–24 school year, Ohio public schools received more than $18,000 per student. Of that, state taxpayers contributed an average of $7,400 per student—a whopping 20 percent increase from the 2021–22 school year after accounting for inflation. Funding has increased even more since then, yet the establishment still says it’s not enough.
When it comes to supposedly inadequate funding, the lawsuit makes some rather absurd claims that the judge seemed to take at face value. One of the school districts involved in the case, Cleveland Heights-University Heights, is said to enroll “about 5,000 students, 99% of which are disadvantaged.” That’s tough to believe given that the average income in the district was more than $92,000 in 2022, much higher than the state average of almost $76,000. The 99 percent disadvantaged claim is based on students qualifying for the federal free lunch program. But just 25 percent of students in a district need to be from low-income families for the entire student body to qualify for the lunch program, so that’s not an accurate metric for evaluating how many students are disadvantaged.
Furthermore, the Cleveland Heights-University Heights district claimed inadequate funding has caused it to lay off teachers, resulting in overcrowded classrooms and insufficient support for students. Additionally, it says it cannot afford to repair its facilities, and most of its buildings lack air conditioning and are not in good condition. Adjusted for inflation, the district received around $30,000 per pupil in the 2021–22 school year. How is it possible that it can’t provide basic maintenance, air conditioning, and teachers with that level of funding?
Does the EdChoice program represent unconstitutional state funding of religious schools? This is the third issue where Judge Page ruled against the EdChoice program. The Ohio Constitution says, “… no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.” As previously mentioned, the scholarship funds are clearly funding individual students, not schools. Since the state sends students’ funds to schools electronically, the judge claims this is allowing private organizations to control school funds. But this argument is unmistakably countered by the rules of the program itself, which specify that if a student transfers to a different private school, the funds follow the student. If the schools controlled the funds, they would be able to keep the funding even if a student leaves.
I’m not a lawyer, but I’m very optimistic the EdChoice program will ultimately be ruled constitutional based on the track record of similar programs in state and federal courts. I wish I were as optimistic that opponents of parental choice would stop trying to kill these programs. Unfortunately, as more programs become universal, we’ll probably keep seeing these challenges. It would be nice if the education establishment would recognize that a system that may have made sense in 1850 doesn’t work for many children in 2025.
On the plus side, many parents have gotten used to having choices when it comes to their children’s education, and they won’t willingly go back to the old ways. Funding students, instead of just school systems, is here to stay.