For the second time this school year, a court has deemed a state’s private school choice program unconstitutional and forced it to halt.
The Utah Fits All program, an education savings account offering that 10,000 K-12 students currently use, violates the state constitutional requirement to spend state tax revenue on public education options all students can attend, Judge Laura Scott of the Third District Court of Utah ruled on April 18.
The judge’s ruling mirrors last fall’s decision by the South Carolina Supreme Court that the state’s education savings account program violated the state constitution’s prohibition on public funds for private education. Lawmakers there are currently in the final stages of reviving that program with a new funding source.
The Utah ruling marked a setback for advocates of private school choice just one day after a major victory, when the Texas House joined the state Senate in approving a $1 billion education savings account program that’s now only a few procedural steps away from being signed into law. Idaho, Tennessee, and Wyoming have also enacted or expanded private school choice this year.
The push for private school choice has become more uniform in recent years as a growing number of Republican-led states move to pass similar policies, said Chris Lubienski, a professor of education policy at Indiana University.
When courts evaluate these programs, the rulings tend to come down to “variation in how the state constitutions are written,” rather than to a verdict on private school choice as a concept, he said.
Meanwhile, the prospect of a federal private school choice program continues to loom on the horizon. Congressional lawmakers have proposed investing as much as $10 billion a year in tax credits that indirectly subsidize students’ private education.
It’s not yet clear whether that proposal will survive hectic budget negotiations. But President Trump has been firm in his support for private school choice, posting on social media in support of lawmakers in Idaho and Wyoming who supported private school choice bills, and personally calling in to lawmakers in Texas at crucial moments before their private school choice policies passed.
Private school choice continues to spread rapidly
In the last three years, GOP legislatures across the country have prioritized investing hundreds of millions of public dollars for parents to spend on private educational options of their choosing.
These investments take the form of vouchers for private school tuition; education savings accounts for a wide range of education expenses outside the public school system; direct tax credits for parents who send children to private school; and tax-credit scholarships that reimburse donors to programs that award private school scholarships to families.
Fifteen states have private school choice programs for which all K-12 students are eligible to apply or have programs that are on track to become universal, according to Education Week’s private school choice tracker. Fourteen more have more limited programs geared toward varying combinations of students with disabilities, low-income students, and students whose neighborhood public school is considered low-performing.
No two programs look exactly alike. Some have accountability measures like requiring students to take the same exams public school students do, while others are more broadly permissive. Some programs with universal eligibility admit any student who meets the criteria, while others cap the number of students or the amount of money invested per year. Award amounts differ from one program to another, and even within the same program for different groups of students.
But a common thread for many of these programs is the legal scrutiny they’ve drawn.
In addition to the ongoing Utah case, lawsuits are currently challenging private school choice programs in Ohio and Montana on similar state constitutional grounds. Lawmakers in South Carolina have said their latest round of private school legislation will likely come before the state supreme court once again.
Courts previously struck down private school choice programs in Kentucky, Nevada and North Carolina, though they’ve also ruled against private school choice opponents in previous cases in Montana and West Virginia.
In Utah, Scott wrote that her ruling “is not wading into the political debate over the merits of ‘school choice’ or expressing any view on the indirect funding of sectarian schools.”
Rather, she rejected the state’s argument that some schools receiving public funds don’t need to accept all students who want to attend, as the state constitution requires public schools to do.
Private schools in other countries face stricter limits on turning away students, Lubienski said. But changing those requirements has rarely come up as a pivotal issue in American debates over private school choice.
“I think policymakers are assuming that private schools’ ability to exclude kids is sacrosanct,” Lubienski said. “There’s no debate on whether or not that should be allowed.”
Advocates for private school choice aren’t deterred by setbacks
Halting a private school choice program while it’s in progress brings complications of its own.
Jeff Yass, a billionaire investor who has poured millions of dollars into political campaigns advocating for private school choice nationwide, donated $900,000 to cover costs for students affected by the South Carolina program’s cancellation.
It’s not yet clear how Utah Fits All participants will be affected by the court ruling as the current school year wraps up.
The state spent $80 million on the program during the current school year—$8,000 apiece for 10,000 private and home-school students. Lawmakers had set aside $100 million for next school year, with private school students collecting the full $8,000 award, and home-school students collecting smaller amounts depending on their age.
Roughly 80 percent of the currently participating students are in home-school programs, state lawmakers said earlier this year. Many of those students were likely in home school before the program began, which means losing the check from the state wouldn’t necessarily be catastrophic, Lubienski said.
Mid-year disruptions haven’t been the only obstacle to recent private school choice momentum. Similar legislative efforts by Republicans earlier this year to create new programs or expand existing ones in Mississippi, Montana, and South Dakota failed to gain traction. And voters in Colorado Kentucky, and Nebraska last November rejected ballot measures that would have allowed private school choice programs to expand or be codified in law.
Even so, supporters of these programs haven’t been deterred by votes or litigation that don’t go their way.
Last week, South Carolina House and Senate lawmakers reached an agreement on legislation for a new education savings account program that gives up to 10,000 participating students $7,500 each, with eligibility limited by an income cap that gets higher in each of the first three years. Lawmakers said they’re hoping the state supreme court will permit the program to proceed using at least one of two funding mechanisms they’ve laid out.
Utah officials, meanwhile, have said they plan to appeal Scott’s ruling to the state supreme court.
