States with recent education choice lawsuits involving EdChoice Legal Advocates and the Institute for Justice.
As education choice options expand for families across the nation, opponents are stepping up their fight to preserve the status quo.
Observers say these conflicts are examples of growing pains that come when a society undergoes transformational change.
“It’s just part of the cost of doing business,” said Michael Q. McShane, director of national research at EdChoice, a national nonprofit think tank. “Educators are not alone in challenging policies they don’t like. New laws get passed; people who can’t do things democratically try to do things through the courts.”
Michael B. Horn used a famous quote (often misattributed to Mohandas Gandhi) to describe the spate of lawsuits: “First they ignore you, then they laugh at you, then they fight you, then you win.”
“I think we’ve entered the fight stage,” said Horn, the co-founder, distinguished fellow, and chairman of the Clayton Christensen Institute and an author of several books on disruptive innovation. “Education choice has gotten big enough that the entrenched interests dedicated to preserving the status quo are starting to see it as a threat.”
Legal fights over education choice began in the 1800s when Catholic families opposed the Protestantism taught in public schools. In 1925, the U.S. Supreme Court ruled in Pierce v. Society of Sisters that parents had the right to put their children in private schools. In 2002, the high court issued another landmark decision, Zelman v. Simmons-Harris, which upheld an Ohio scholarship that allowed parents to spend the money on religious schools. The high court found that when the parent controls the expenditure, the state has no role in determining whether the parent will choose to use funding at a religious or secular school.
With the Zelman ruling settling that question, choice opponents began trying to insert race-based arguments using the language of state constitutions. Michael Bindas, a senior attorney at the Institute for Justice who argued the landmark case Carson v. Makin before the U.S. Supreme Court, outlined that shift in a paper published in the Syracuse Law Review. According to Bindas, common arguments center on education clauses requiring states to maintain uniform or common public school systems. Education choice opponents, he said, take that a step further and claim that private scholarship programs could upset racial balances that state constitutions require state governments to maintain. They also argue that the requirements that states maintain public school systems bar them from establishing concurrent private education choice programs. Lower court judges in Ohio and Utah recently cited this argument in striking down choice programs. Ohio plaintiffs also raised the issue of racial balance argument, which the judge rejected.
McShane and Horn say the spate of lawsuits won’t stop education choice programs from becoming the norm in public education. However, they will delay the transition.
“Yes, these cases are a headache and can delay implementation, but school choice has a good track record,” McShane said. “It will take numbers and time, and it’s going to tip over into a different mindset.”
Where things stand
Montana: Families are waiting on a judge to rule on a lawsuit brought by opponents of a 2024 education savings account program for students with special needs. Plaintiffs argue that the law allowing reimbursements for $6,800 per child violates several provisions of the state constitution and redirects tax dollars to private institutions at the expense of students with special needs who remain in public schools. The judge denied the plaintiff’s motion for a temporary halt to the program, allowing families to continue using their ESAs while the case is pending.
Ohio: The state has appealed a lower court’s ruling that declared the state’s $700 million Educational Choice Scholarship Program (EdChoice) unconstitutional. In siding with the coalition of school districts and other choice opponents, the judge said that the program was not a subsidy program, as the state argued, but a separate system of schools in violation of the state constitution. However, the judge rejected the plaintiffs’ argument that the program violated the state constitution’s education clause by creating racial imbalances in the district schools. The 10th District Court of Appeal is expected to hear the case in 2026.
Utah: Families are continuing to receive funds from the Utah Fits All scholarship program while a district court ruling in favor of a teachers union-backed lawsuit is under appeal to the state Supreme Court. A district judge ruled that the state constitution prevents lawmakers from using tax revenue to fund education programs other than public education, higher education, and services for people with disabilities. The judge rejected the state’s argument that it had met its funding obligations to public education and that nothing in the law prohibited it from funding a separate program to support families choosing private or home education.
Wyoming: Families seeking to use Steamboat Legacy Scholarship ESAs had to find other options for the 2025-26 school year after a trial judge blocked the state from distributing funds in July at the request of the Wyoming Education Association and other plaintiffs until the judge rules on their lawsuit against the program. The judge recently denied a motion by state officials and attorneys for two families to dismiss the lawsuit based on their argument that the plaintiffs lacked legal standing.
Missouri: Education choice advocates scored a win last month when a judge denied the teachers union’s request to freeze payments to the MOScholars K-12 scholarship program as their lawsuit continues. MOScholars began in 2021 as a tax credit program supported by private donors. Earlier this year, the state allocated $51 million to the program, prompting the Missouri Education Association to file the complaint, which contends that the allocation unconstitutionally diverts taxpayer funds to private schools.
Arkansas: The state’s Education Freedom Account program is being fought on two fronts. In June 2024, opponents sued in state court, arguing that the program illegally diverted tax dollars from the public school system to benefit private schools. The judge denied the state’s motion to dismiss the complaint, so state attorneys are appealing to the state Supreme Court.
The same plaintiffs filed another lawsuit a year later in U.S. District Court. It argues that the program violates the Establishment Clause of the First Amendment because “it aids in the establishment of religion” by providing state funding to private schools operated by religious organizations. The state refutes that by arguing that the money can go to schools representing a wide variety of faiths, as well as secular schools.
They also argue that the program violates the Equal Protection clause of the 14th Amendment because it discriminates against low-income families, families in rural areas where there are fewer private schools and students with disabilities, because private schools are exempt from the federal Individuals with Disabilities Education Act. The program is also discriminatory, according to the complaint, because private schools are not held to the same standards as public schools. The state attorney general has filed a motion to dismiss the case, arguing that the plaintiffs lack standing.
Kentucky: The Kentucky Supreme Court heard arguments on Sept. 11 about whether the state’s charter school funding law violates the state’s constitution. Charter schools have been legal in the Bluegrass State since 2017, but there was no state funding mechanism. Lawmakers passed House Bill 9, which allocated money to charter schools, which are publicly funded but independently managed. A trial court judge ruled in 2023 that the law violated the state constitutional ban on the use of tax dollars to support non-public education and the constitutional requirement for “an efficient system of common schools.”
The EdChoice blog recently delivered some good news, specifically that the number of students using private choice programs increased by 25% last year. In fact, if you cobble together some previous years' data from the EdChoice ABCs of School Choice reports, the trend looks like:
Overall, a doubling of private choice participation since Arizona and West Virginia adopted universal policies in 2022 is looking like a good start. It is worth keeping in mind that surveys show that parents prefer private schools at approximately four times the rate that they enroll in them, and there are many miles to go on that front. The new program in Texas and the federal tax credit will provide additional sources of growth in the years ahead.
Meanwhile, over at Charter Folk, the not-so-good news. Jed Wallace has a striking post on the bifurcation of American education. Disadvantaged students have suffered the lion’s share of the decline in achievement since the pandemic struck.
This is your author’s observation rather than Wallace’s, but authorities adopting policies that teens can readily interpret as “attending school is not terribly important” have extremely negative consequences on absenteeism. Moreover, as best your humble author can tell, the “plan” for the public schools to do anything about it involves aging/dropping the academically damaged students out of the system.
In any case, Wallace puts his hammer on the head of an important nail regarding different reactions across red and blue states:
“It comes down to a topic I have written about several times here, which is whether teacher unions think they have overplayed their hands since the pandemic.
“My answer has been that in red states the answer is undoubtedly yes. Teacher union recalcitrance since the pandemic has sparked the Republican party to embrace private school choice, and that is resulting in seismic change happening in those states.
“In blue contexts, though, I have said that it’s a very different story. Thus far, Dems’ calculation has been that their hold on power is so unquestioned in blue states that they don’t really need to pivot on issues. They’ll be able to keep winning without making any adjustment at all.”
Ohio State University political scientist Vladimir Kogan, in his book “No Adult Left Behind,” argues: “We need a public school system that serves students, but we have created one that is governed at the behest of adults. We should not be surprised when it puts the interests of those adults first.”
Wallace is, correctly, I fear, noting that the politics of blue states lend themselves to more of the same on K-12. Wallace notes that this means more of this in Illinois:
If spending $93,787 per student at a high school with 0% proficiency in reading to go along with 0% proficiency in math is not your personal cup of tea, you might want to consider moving out of Illinois. It does not seem likely that you could find such a thing in any of the nearby states, two of which offer their citizens universal access to private choice programs:
Federalism allows people of divergent views to effectuate different policy goals, a healthy design feature of the American Constitution. If your state uses their monopoly on force to require you to pay for the schools like those listed above, opting out sounds like a splendid idea. Finding yourself forced to pay for those schools is far more than anyone should tolerate. Finding oneself forced to pay for them and being required to send your children to them is far, far worse. Illinois policymakers would never inflict this on their own children but seem entirely content to do so on thousands of their fellow citizens.
Depeche Mode once sang about “the grabbing hands grab all they can” but the same song noted “everything counts in large amounts.” For example, within the lifetimes of many reading this post, Illinois will have gone from having twice as many seats in Congress as Florida, to half as many (see below).
Everything counts in large amounts, indeed. The grabbing hands will be grabbing all they can, but your interests, dear reader, lie in putting yourself beyond their reach.
Travis and Nikki Leck are seeking to defend and protect the Wyoming Steamboat Legacy Scholarship program from a lawsuit filed by the state teachers union. Their sons, Tanner, left, Carter, center, and Mason, right, attend a private classical school. Photo courtesy of the Leck family
Editor's note: This story has been updated to reflect the latest court ruling granting an injunction to block the release of funds to families while the lawsuit is pending.
Travis and Nikki Leck were thrilled to find a private school that challenged their sons academically and were looking forward to using a newly expanded Wyoming education choice scholarship to help pay for it. Now, a judge's ruling has left them and thousands of other families in limbo as the new school year approaches.
 “We would have never considered a private school. It just isn't something most people in this part of the world do,” said Travis, a petroleum engineer who grew up in Montana.
When the time came, the two public school graduates looked for a public school best suited to the needs of their oldest sons, Mason and Tanner. They found a gem: Fort Caspar Academy, a classical public school focused on high academic standards, high time on task, high expectations for behavior, strong parental involvement, logical thinking, and character development.
The school offered evidence-based reading instruction that included phonics, and math instruction grounded in a solid foundation of math facts, everything the Lecks expected.
Then came third grade. The family had the opportunity to move back to Cody, where they had lived off and on over the years. It's the gateway to Yellowstone National Park. Named after its founder, William F. “Buffalo Bill” Cody, it boasts a population of 10,305. The 2025 graduating class at Cody High School totaled 145.
Cody has one McDonald’s, one grocery store, and a Walmart. Elementary school options were about as limited as the retail offerings. Cody had five public elementary school options, two more than 20 miles out of town, compared with Casper’s 20. The Lecks tried the Cody public school for the twins and their youngest son, Carter, who had started kindergarten.
After a year and 11 days into the next school year, the Lecks realized that they preferred the classical approach to teaching and learning.
“I never thought we would be at a private school, especially in Wyoming. However, being pro-classical education, especially in Cody, definitely makes me pro-school choice. We have exactly one chance to get our kids’ educational foundation right, and it matters.”
The Lecks decided to look elsewhere for the rigor they wanted for their kids, advanced math learners who are now 12 and 9. They found it at Veritas Academy, a private classical school that used the same standards, curricula, and methods as Fort Caspar Academy. Tuition for the upcoming year will be $8,000 per student.
So, they pulled back on discretionary spending to make Veritas Academy possible. Nikki also returned to her job in marketing full time.
In March, the family got hope for financial relief when the Wyoming Legislature passed the Wyoming Steamboat Legacy Scholarship Act. The education savings account program offers families $7,000 annually for income-eligible students in pre-kindergarten, with universal eligibility for students in K-12. Parents can direct the funds for tuition, tutoring, and other approved educational expenses.
The Lecks were among more than 4,000 families approved for scholarships.
Two weeks before the state was set to begin distributing funds, the Wyoming Education Association and nine parents sued the state to halt the program, arguing that it is precluded by the state’s constitutional commitment to district schools and that it violates a constitutional ban on appropriations to private entities, even though money is appropriated only to the state Department of Education and administered by the state superintendent of public instruction, according to the legislation. The state’s attorney, Mackenzie Williams of the Wyoming Attorney General’s Office, said during a recent court hearing that school funds are not used to finance the ESA program.
Travis and Nikki, who have advocated for parent-directed education in emails to lawmakers, joined forces with EdChoice Legal Advocates and the Institute for Justice as one of two families intervening to defend and protect the program.
On June 27, a district judge granted what he called a “narrowly tailored” injunction that barred any money from going to families while he decided whether to pause the program until the lawsuit was decided. On Tuesday, he issued a written order granting the plaintiffs' request for a preliminary injunction blocking the release of any funds to families until he rules on the case. However, he allowed other operations to continue until he decides whether to issue a preliminary injunction that would pause the whole program while the lawsuit is resolved. Wyoming State Superintendent of Public Instruction Megan Degenfelder said her office is working with the state attorney general to look for options to challenge the injunction. Attorneys for the intervening families said Wednesday they plan to do the same.
"The court's decision to limit educational opportunity for Wyoming families is contrary to the Wyoming Constitution," said Thomas M. Fisher, executive vice president and director of litigation for EdChoice Legal Advocates. "We will seek to stay the injunction and appeal it as soon as possible."
The Lecks say they will find a way despite the latest ruling to keep their kids at Veritas Academy, though it won’t be easy.
However, they worry about those who aren’t as fortunate.
“I know there are a lot of other families that would like to go to Veritas this fall that it will probably hurt if funding is blocked,” Nikki said.
The Lecks said they do not oppose public schools. They graduated from their local public high schools and believe they received a good education. They never gave private school much thought until it became clear their kids needed something different from what that particular public school district offered.
They just think all families should have the right to choose what’s best for their children, whether that looks like a public school, private school, homeschool, or a combination of many options. Larger Wyoming communities like Casper, Cheyenne, and Laramie have publicly funded public and charter school classical school options that aren’t available in smaller communities.
Nikki hopes that the Steamboat Legacy Scholarship program, if it survives the legal challenge, will create an environment for entrepreneurs to provide more types of education. More is particularly important in rural areas like Cody, where choices are scarce and where families have little recourse if existing options are not the best fit.
“Really, a person’s only option if you don’t like what the public school is doing is to take them out and put them somewhere else,” Nikki said. “Wyoming’s scholarship program,” she said, “is one option to make that less financially challenging for anyone, regardless of location or income.”
David Osborne recently predicted academic doom for red states having recently passed universal private choice programs. “This will accelerate the process of the rich getting richer while the poor fall further behind,” Osborne asserted. Osborne problematically ignored our nation’s actual experience with universal choice programs, making his column more a litany of faith than a clear-eyed analysis.
Osborne predicts a bleak future for states with universal private choice programs, with poor families left behind. Osborne prefers a charter school model of choice, keeping choice within the public realm of regulation and accountability:
"Is there an alternative, other than the status quo of struggling public school systems? Indeed there is. States and school districts could reduce bureaucratic controls, empower educators and increase choice, competition and accountability for performance within the public school system, through the spread of charter schools. Cities that have done so, including New Orleans, Washington, D.C., Denver and Indianapolis, have produced some of the nation’s most rapid improvements in student performance."
Arizona lawmakers created the first universal private choice program in 1997, the nation’s first scholarship tax credit program. Decades passed before another state enacted a private choice law with equally expansive eligibility. Three years earlier, in 1994, Arizona lawmakers had created two de facto public universal choice programs in the nation’s most robust charter school law and a statewide district open enrollment statute. “Large” and “relatively lightly regulated” would accurately describe Arizona choice programs, both public and private. Arizona lawmakers expanded and supplemented scholarship tax credits repeatedly; the Arizona charter sector became the largest among states, and open enrollment between and within districts dwarfed both in combination. Arizona created the nation’s first education savings account program in 2011 and expanded eligibility several times before making it universally available to Arizona K-12 students in 2022.
Given Osborne specifically cites four jurisdictions with the sort of choice programs of which he approves- Denver, Washington D.C., New Orleans, and Indianapolis, it seems in order. The Stanford Educational Opportunity Project provides academic growth data by jurisdiction (schools, counties, and states) and student subgroups for the 2009-2019 period. Comparing the rate of academic growth for low-income students in each of these four jurisdictions with those of Arizona counties in Figure 1:
Academic growth is a very important academic measure. While raw scores are very strongly correlated with student demographics, growth is much less so. Scholars widely view academic growth as the best measure of school quality. Many years into exposure to universal choice programs, Arizona’s low-income students seemed to be too busy learning to suffer Osborne’s predicted calamities. Greenlee County is a rural and remote area of Arizona with approximately 1,500 students and (alas) no charter or private schools during the period covered by the data. In this measure, a “zero” basically entails having learned a grade level worth of material per year on average, so the performances for Denver, DC and Orleans Parish are respectable, Marion County (host county of Indianapolis) less so.
The Stanford Educational Opportunity Project also measures the gap in learning rates by subgroup, which is measured by subtracting the learning rate of poor students from that of non-poor students. The four jurisdictions lauded by Osborne ranked first, second, third, and fifth in comparison to Arizona counties in terms of the amount of learning rate inequality between poor and non-poor students. There was exactly one state that had a positive rate of academic growth for both poor and non-poor students and had a faster rate of academic growth for poor students. It is the state marked “1” and spoiler alert…it is Arizona, the host of multiple universal choice programs.
Osborne’s hypothesis held that what some would regard as wild, lightly regulated “let it rip” choice programs would prove to be a disaster for low-income students, and conversely, well-regulated choice programs should advantage the poor. In practice, however, we find evidence to support the opposite conclusion. These results would not have surprised Milton Friedman in the least:
The results in the above figure also sit comfortably with the diagnosis of John Chub and Terry Moe, who identified politics as the central flaw of the American public school system. The American public school system does not do a terrific job on average in educating students, but it does a fantastic job in maximizing the political power and revenue of employee unions and their associated fellow travelers. Attempting to set up a governance structure of politically disinterested technocrats who will give families just the right amount of freedom and just the right amount of regulation comfortable for technocrats is an appealing theory. In practice, the most powerful and reactionary forces in modern American politics hijack the project easily unless a powerful, supportive constituency rises to defend the programs.
Jason Bedrick and I published a piece at the Daily Signal about the Roosevelt Elementary School District in South Phoenix. The Roosevelt district has experienced enrollment loss for decades, and the school board of the district has announced plans to close five schools.
I first learned of Roosevelt Elementary School district some 20 years ago when a Roosevelt student brutally assaulted a co-worker’s child. The staff’s response was far less than satisfactory, but at the time, it was difficult to locate mid-year transfer spots for my co-worker’s children, even after we enlisted the aid of a person who specialized in such situations.
I’m happy to report that in 2025, it is less difficult for desperate parents to execute a mid-year transfer.
Multiple factors explain the decline of Roosevelt’s enrollment, including a nationwide baby bust that began around 2007. Students living in the boundaries of Roosevelt but attending other public schools, both districts and charters, outnumber ESA students approximately 10 to 1. So, Arizona’s open enrollment and charter statutes deserve more credit than the ESA program. An examination of the reviews of Roosevelt Elementary schools left by students, parents and staff on private school navigation websites made my co-worker’s experience from 20 years ago seem to be far from an isolated, unfortunate incident. Here are some examples:
“Please do not take your children here. Almost every child is bullied, and the staff won't do anything. If you truly care about your kid's school experience, don't sign them up.”
“This school makes kids act out by tolerating relentless bullying and cruel treatment by teachers for special needs kids.”
“The kids get bullied, my son got a Black eye the 1st day of school and they told me that because he didn't know who the kid was there was nothing they could do.”
“This school should be shut down.”
“…They don’t take care of bullies; they just ignore the problem and leave the kids (to) fend for themselves; it seems that this is a safe place for bullies not for other kids. I would recommend that you should never enroll your kid here, and if you do, be prepared to endure what seems to be a never ending bully problem, and its not only the teachers that don't do anything about bullies.”
“I would rate it ZERO stars. This school is not SAFE NOR ORGANIZED. Roosevelt school district needs to step up their game or close this school down.”
“Students are constantly fighting or involved in some type of confrontational altercation with each other. Teachers behave more as peers than educators. My grandchild has attended this school for the past five years. I have seen very little improvement. If it were my choice, they would not attend.”
People who work for school districts have organized, and they use the fact that Americans dislike school closures. I would submit, for your consideration, that it is not wicked legislators or dastardly choice supporters who have forced the looming closures of Roosevelt schools. Rather, it has been due to the action of thousands of families who live in the boundaries of the district, who desire safe schools that will equip their children with the knowledge, habits and skills necessary for success. They have chosen to prioritize the long-term interests of their children over the short-term preferences of Roosevelt staff in increasing numbers for decades.
This is a thumbs up for Roosevelt students, whose interests the community has collectively put first, more than a thumbs down for the district schools. Roosevelt district schools will remain the best funded option on a per-pupil basis and might just stage a comeback if they can secure the confidence of families regarding safety and academics. Some of my friends in Arizona’s K-12 reactionary community would prefer that Roosevelt schools receive unconditional immortality. It is difficult to view these folks as engaged in anything other than macabre traffic in other people’s children. Perhaps I judge too harshly; the Phoenix area K-12 industrial lobbying complex is probably large enough to delay the need for difficult decisions in Roosevelt. If they are willing to enroll their own children in Roosevelt schools through open enrollment or otherwise, they might be able to stave off the need for safety and academic improvements.
Opponents of choice in Phoenix have been avid users of choice. One of your humble author’s children graduated from a South Phoenix charter school just a few miles away from Roosevelt. He attended with the children of two gubernatorial nominees who campaigned against choice (including Gov. Katie Hobbs), a child of the president of the Arizona Education Association and a co-founder of Save Our Schools Arizona, among others. Rather than choosing safe and academically performing charter and district schools, this community could instead put their families where their mouths are and lead the renaissance of Roosevelt district schools by enrolling their own children and grandchildren.
While this noble project gets off the ground, we in the Arizona choice community will continue to prioritize the interest of families above those institutions.
Utah students celebrate National School Choice Week at the state capitol. Photo courtesy of National School Choice Week
In the 1949 Looney Tunes short “Mouse Wreckers,” two mind-manipulating rodents named Hubie and Bertie try to chase award-winning mouser Claude Cat out of his home by driving him crazy. They bang him on the head with a fireplace log, throw a stick of dynamite on Claude’s nap cushion, and even frame him for antagonizing a bulldog, who pummels him.
The last straw is when the mice nail all the living room furniture to the floor while Claude is napping. Thinking he is stuck on the ceiling, he jumps up to what he thinks is the floor. When he opens a bottle of nerve tonic, all the liquid “rises” to what Claude thinks is the ceiling.
Similar confusion over ceilings and floors is at the heart of a legal battle in Utah, where a trial court judge ruled that the legislature figuratively bumped its head on the state constitution when it passed the Utah Fits All Scholarship Program in 2023.
Third District Judge Laura Scott wrote in her ruling that the state constitutional mandate that the Legislature establish and maintain a public education system is a ceiling. The state cannot create alternatives. If it were a floor, the legislature would have the authority to create other publicly funded education programs in addition to the public school system.
In separate appeals filed last week, the Utah Attorney General’s Office, along with two parents represented by the Institute for Justice and EdChoice Legal Advocates, each say that the judge erred in calling the constitution’s education clause a ceiling. They argue it is a floor.
“The legislature is already meeting its constitutional mandate to provide a free public education system devoid of sectarian control and open to all children. Plaintiffs do not argue otherwise,” the state’s appeal reads. “The district court recognized that Plaintiffs’ Article [X] claim fails as a matter of law if the educational provisions set a floor rather than a ceiling on legislative power.”
However, the lower court “created new limitations on the Legislature out of whole cloth,” according to the parents’ appeal.
The Utah Fits All Scholarship Program took effect in the fall of 2024 and gives eligible K-12 students up to $8,000 a year for private school tuition and other approved costs. In the first year, more than 27,000 students applied for 10,000 available scholarships. Unlike in South Carolina, where families were left scrambling last year after the state Supreme Court struck down its scholarship program, Utah families are allowed to continue using the program while the case is under appeal and will likely to be able to finish out the school year.
One of two cases that the judge relied on was Bush v. Holmes, which the parents’ attorneys called “the sole outlier” on the list of court decisions from other states.
The 1999 complaint challenged the Florida Opportunity Scholarship Program. In it, the Florida Supreme Court ruled in 2006 that the program violated the constitution’s provision requiring a “uniform” system of public schools for all students.
Scott wrote that the Florida provision “acts as a limitation on legislative power” and that in spelling out how something must be done, it effectively forbids it from being done differently.
The Utah parents’ attorneys called Florida’s provision “unique” and different from the broader language in the Utah Constitution.
“But even if Florida had analogous language to Utah’s Education Article — and it does not — Holmes is a singularly unpersuasive decision. One need only compare the majority and dissenting opinions to appreciate how flawed the majority’s reasoning was and how glaring are its many errors.”
Maria Ruiz and thousands of other families could lose their ability to choose schools that best fit their children’s educational needs if the Utah Supreme Court upholds a lower court ruling striking down the Utah Fits All ESA program. Photo courtesy of Institute for Justice
For the thousands of families who relied on the program, the stakes couldn’t be higher as they now find themselves under the shadow cast by the district court’s order just months before a new school year begins.
“In the interest of removing that shadow as soon as practicable so that Utah families can plan for their children’s upcoming academic year without disruption, Parents ask for this Court’s review,” the attorneys wrote in the parents’ appeal.
At the end of Mouse Wreckers, Claude races screaming from the house and clings, trembling, to a tree. The mice roast cheese and congratulate themselves.
“That upside-down room was the pièce de résistance,” Bertie says to a laughing Hubie.
Attorneys defending Utah’s scholarship families hope the state’s high court will flip the state constitution right-side up.
The story: With less than a week to go before the U.S. Supreme Court hears arguments about the constitutionality of religious charter schools, supporters and opponents are making wildly different predictions about the possible effects.
Supporters, who include advocates for religious education, are framing a win for their side as a victory for religious freedom and a logical extension of recent rulings that affirmed faith-based schools’ right to participate in publicly funded programs.
“This is a way of getting new choice options in the context of performance accountability,” said Andy Smarick, a senior fellow at the Manhattan Institute, during a recent debate about religious charter schools sponsored by the American Enterprise Institute. “A small number of religious organizations might apply to run charter schools, and I think that’s wonderful and not going to change the world.”
The Manhattan Institute is among the organizations weighing in on the side of religious charter schools.
Opponents, which include the National Alliance for Public Charter Schools, are sounding the alarm over what they say could cripple a movement that began more than 30 years ago to launch innovative new public schools.
The other side: The National Alliance for Public Charter Schools warned that a ruling allowing religious charter schools could carry “catastrophic consequences” for the nation’s existing charter schools.
For religious charter schools to exist, they argue, the high court would have to redefine charter schools as private. That would overturn laws in 46 states, plus Washington, D.C., and Puerto Rico, that define charters as public and thus threaten their ability to be funded under the same per-pupil formulas as school districts.
Yes, and: Charter supporters also point out the potential for ripple effects, such as charter schools losing facilities funding, questions about teacher participation in state benefit programs, or more drastically, calls to halt the approval of new schools or even funding of existing ones.
“This could lead to the destruction of chartering or limiting of chartering,” said Kathleen Porter-MaGee, a managing partner at Leadership Roundtable, an organization that brings together laity and clergy to support the Catholic church.
Instead of extending charters to religious groups, she encouraged a doubling down on private K-12 scholarship programs, which are now established in 29 states, with Texas poised to become the 30th.
Expanding scholarship programs for private education would let faith-based schools maintain instructional and employment practices that align with their beliefs, free from government interference, while allowing them to serve families who would not have access without private funding.
Catch up: The legal and political battle rocketed to the Supreme Court shortly after two Catholic dioceses won approval from Oklahoma’s statewide virtual charter review board in 2023 to open St. Isidore of Seville Catholic School, an online charter school that would include the same Catholic teachings as the church’s in-person schools.
The fight pitted Republicans against one another, with the current Oklahoma attorney general taking a position opposite his GOP predecessor and filing a lawsuit. It also divided the charter school movement, with national groups forcefully opposing a legal argument that could redefine their status as public entities and some charter schools arguing they would welcome the change.
While Oklahoma has a refundable tax credit that pays up to $7,500 per child for private school tuition, the program was not available until January 2024, about six months after St. Isidore applied for charter school authorization.
Possible upsides of a win for St. Isidore:
“Catholic schools have been doing things on the cheap for far too long,” Smarick said. “This is the opportunity to say you can remain private for as long as you want…but if you think you can do more for your mission in the charter school context, you can.”
Possible downsides:
Charter groups preparing: In case the court rules in favor of St. Isidore, advocates of established charters are working on model legislation that would allow states to maintain funding. A finding that says charter schools are not state actors also raises many questions, such as whether the ministerial exception, a legal doctrine that shields religious organizations from non-discrimination laws in the hiring of staff with ministerial duties, would apply to faith-based schools.
“No one knows what the court is going to say,” Smarick said. “State legislatures need to step up fast and answer these questions.”
Tune in: The U.S. Supreme Court has scheduled oral arguments in the case for 10 a.m. April 30. Audio will be livestreamed.
Maria Ruiz calls the Utah Fits All Scholarship Program 'a rich blessing' for her family and is one of two parents fighting to protect the program from being shut down. This week a district judge ruled it unconstitutional. Photo courtesy of the Institute for Justice
Editor's note: This story has been updated with the outcome of the status hearing on April 23.
When Utah officials defended a union-backed court challenge to its Utah Fits All Scholarship Program, they relied on cases in five other states in which courts upheld similar programs as constitutional.
However, in her ruling against Utah’s scholarship program last week, Third District Judge Laura Scott noted the absence of a Florida case: Bush v. Holmes.
The 1999 complaint challenged the Florida Opportunity Scholarship Program. In it, the Florida Supreme Court ruled in 2006 that the program violated the constitution’s provision requiring a “uniform” system of public schools for all students.
On page 31 of the 57-page order in the Utah case, Scott cited Florida Chief Justice Barbara J. Pariente’s opinion, which said that the Opportunity Scholarship Program “diverts dollars into separate, private systems…parallel and in competition with the free public schools” and funds schools “that are not ‘uniform’ when compared with each other or the public school system.”
Scott wrote that the Florida provision “acts as a limitation on legislative power” and that in spelling out how something must be done, it effectively forbids it from being done differently.
Scott used that reasoning, along with a 2001 Utah Supreme Court ruling that dealt with the legislature’s authority to grant the state board of education the power to approve charter school applications, to form the basis for her ruling that declared the Utah Fits All program an unconstitutional overreach.
Because Utah’s Education Act does not mention any other duties except “establish and maintain a public education system which shall be open to all children of the state, and a higher education system, which shall be free from sectarian control,” it is a ceiling and not a floor.
“Accordingly, the court concludes that the legislature does not have the plenary authority to create a publicly funded education program that is outside of the public school system that is neither open to all the children of Utah nor free.”
An attorney representing two scholarship parents trying to protect the program, said the judge based her ruling on a flawed interpretation of the state constitution.
“The district court abandoned the plain text of the Education Clause and read in a restriction on legislative power where none exists,” said Arif Panju, senior attorney for the Institute for Justice. “In state after state, state supreme courts have had to reverse trial courts in these cases.”
Lawmakers approved the Utah Fits All program in 2023. It took effect in fall of 2024 and gives eligible K-12 students up to $8,000 a year for private school tuition and other costs.
In the first year, more than 27,000 students applied for 10,000 available scholarships. Among them is Maria Ruiz, a restaurant manager and mother of two whose husband has battled serious health problems and amassed a large medical debt. The scholarship program has allowed her to afford private school tuition and keep her son and daughter in the schools that she has determined provide the best educational fit.
If the court shuts down the program, “I wouldn’t be able to pay,” she told NextSteps last month.
Scott’s ruling didn’t say if or when the program would be halted. State officials say they plan to appeal to the Utah Supreme Court. The Institute for Justice, which represents two parents seeking to protect the program as intervenors, say they also plan to appeal.
The district court abandoned the plain text or the Education Clause and read in a restriction on legislative power where none exists. In state after state, state supreme courts have had to reverse trial courts in these cases.
This isn’t the first time that issues like those raised in Bush v. Holmes have surfaced in challenges to education choice programs in other states. Last summer, education choice opponents sued the state of Arkansas over its Education Freedom Accounts program that provides state funds for approved educational expenses. The program, passed in 2023, is being phased in over three years, with universal eligibility in the third year.
The complaint, filed in circuit court, says the Arkansas Supreme Court has “consistently upheld the constitutional requirement that public school funds may not be used for non-public purposes.” It also says the law will “drain valuable and necessary resources from the public school system and create a separate and unequal school system that discriminates between children based on economic, racial and physical characteristics and abilities.”
The case is pending.
Though the Florida Supreme Court sided with choice opponents, legal experts criticized the 2006 ruling as flawed and politically inspired. The Harvard Law Review said the court based its decision on “adventurous reading and strained application” of the Florida Constitution.
Where things stand
I received some interesting responses to last week’s post where I showed some math on how few votes it could have swung control of the Arizona State Senate in the 2024 elections and noted that one of the Arizona political parties having proposed eliminating five popular choice programs may have helped Republicans expand their previous narrow majority. One response focused on a relative who voted for Kamala Harris for president but only voted for state legislative Republicans because her grandchildren participate in the Empowerment Scholarship Program. I had not even considered grandparents and relatives (other than parents) of students participating in choice programs, but they are indeed out there and are registered to vote.
Another response noted that the potential coalition against private choice was much larger than that in favor of private choice in Arizona, given that far more students attend school districts than participate in choice programs. The latter part of this is of course true, but I noted that both absolute and per pupil spending in Arizona school districts stands at or close to all-time highs, making it a fairly latent constituency. Notwithstanding a whole lot of windy rhetoric, no one is proposing to eliminate district schools in Arizona (or anywhere else).
Supporters of private choice programs, on the other hand, have watched as Gov. Katie Hobbs proposed eliminating the programs that they rely upon, making them more of an active constituency. I had a couple of readers inquire as to why I did not include charter school students and families. To my knowledge no one has proposed eliminating Arizona charter schools, so I view them as a mostly latent constituency, at least until someone is reckless enough to threaten their existence.
I put together the chart below based on a few different sources of information. Some numbers are from 2025; the tax credit numbers are from the state’s 2023 report. The tax credit donor numbers only count donations, rather than the number of members of the families who made the donation. There is certainly some double counting going on with the original and switcher credits, as many people claim both. The parent figure is an estimate that assumes 1.5 parents per ESA student in 2025 and does not consider the possibility of other relatives. The below list is by no means exhaustive, or even close to it. Also included are the number of swing votes each losing candidate would have needed to win in the swing Arizona Senate races.
Here goes:
By November 2026, these numbers are going to look even less forgiving than they do now. There are a whole lot of registered Democrats in those larger numbers. It might not be a great idea to give them an incentive to split their tickets to vote in their kids’ interests in legislative races.
By the way, did I mention that the margin of victory in Arizona’s 2022 governor’s race was 17,117 votes and, in the attorney general race, the margin was 280 votes?
Maria Ruiz and thousands of other families could lose their ability to choose schools that best fit their children's educational needs if a judge strikes down the Utah Fits All ESA program. Photo courtesy of Institute for Justice
Maria Ruiz is at the hospital again.
She’s with her husband, Carlos Dominguez, who is still receiving care to help him recover from health issues after suffering a stroke in 2021. His treatments have left Maria as the sole full-time breadwinner.
They live with their two teenage children in Tooele, a fast-growing bedroom community on the southwest shore of Utah’s Great Salt Lake.
Like many residents of Tooele County, Ruiz commutes about 50 miles to Salt Lake City, where she works as general manager at a Carl’s Jr. restaurant. Her salary barely covers the bills. Over the years, she has worked multiple jobs to scrape together enough money to cover the tuition necessary for her son and daughter to attend the schools that she says best meet their educational needs. In addition to her primary restaurant job, she cleaned houses, sold baked goods, and worked at a bakery.
Her son, a high school junior, also works nights at the Salt Lake City International Airport to pay for his car and related expenses and to help ease his mother’s financial burden.
Those burdens got lighter last year. Ruiz had been enduring financial hardship to send her children to private schools, where they felt seen and valued by teachers who helped instill moral virtues. Her children were awarded scholarships through the newly expanded Utah Fits All scholarship program, which meant Ruiz could get up to $8,000 per child to help cover tuition.
“I could pay off some medical debt,” she said, adding that she would look for better health insurance to help cover her husband’s treatment. She called the scholarship program “a rich blessing” to her family.
But the relief she felt from receiving the scholarships soon turned to worry when Utah’s largest teachers union filed a lawsuit asking a judge to strike down the program.
The arguments outlined in the complaint were like those filed in other states, where programs allow families to direct public funding to learning. The Utah lawsuit alleges the program diverts income tax dollars earmarked by the state constitution for the state’s public education system, higher education and disability services and funnels them to private schools and homeschools. The state attorney general argued that the program amounts to only 1% of the state’s $8.43 billion annual budget for public schools and that “nothing states or implies” that scholarship funds would be taken from money that would otherwise be appropriated to the public education system.
Utah’s attorney general is defending the case. Ruiz and Tiffany Brown, a mother of eight, including a child with special needs, joined attorneys at the Partnership for Educational Choice as intervenors to defend and protect the scholarship program.
A judge is expected to rule this spring. Ruiz said her children have struggled in their previous schools. When her son was in the fourth grade, she moved him to a public school to help make ends meet. But his academic performance suffered because “the teachers didn’t care about him,” she said. He also experienced bullying.
“I went in once or twice, and they don’t recognize you,” she said.
Despite the financial hardship, she returned him to private school, where he thrived. She said her kids’ private schools, which are both faith-based, instill moral virtues while also offering personalized education and a sense of community.
“At the private school, they recognize you on the phone,” she said. Classes were small, and school leaders knew every kid’s name.
Ruiz’s daughter, who witnessed her dad’s stroke and called 911 as her mother tended to him, is still recovering from that experience. The personal care she receives at her school has helped.
She said if the court strikes down the program, the effect on her family and others would be devastating.
“I wouldn’t be able to pay,” she said. She owes one school money, but she said the administrators have shown patience and compassion.
“They know me,” she said. “And they know I’m going to pay.”
Meanwhile, the medical bills continue to pile up. Ruiz’s husband is receiving physical therapy for a foot wound that required a toe amputation. Despite five eye surgeries for retinal problems and cataracts, he still has no sight in his right eye.
“His health has been a roller coaster,” she said. “It has been doctor after doctor after doctor.”
Ruiz believes it’s important to show the court and the public how much of a lifeline Utah Fits All is to families facing economic challenges.
“Regardless of our family’s needs, the money needs to be used for the right purpose, to benefit people’s lives. Many kids drop out because they don’t get treated properly.”
