UT: Court Strikes Down Voucher Program

Utah privateers were pretty excited about getting a taxpayer-funded school voucher program through the legislature. HB 215 pulled off that trick in part by bundling teacher salary boosts with an education savings account program. But now they're back to square one, because Judge Laura Scott of the Third Judicial District Couty in Salt Lake has found the whole thing unconstitutional.

In 2023, the legislature (swiftly) created Utah Fits All (curious name, suggesting one size does fit all, I guess). It was supposed to be universal (maybe that's the "all" part), with wealthy families who had never set foot in public schools eligible. That's standard these days-- taxpayer funded vouchers have pretty much left behind the old "for poor children trapped in failing schools" rhetoric. 

The bill was passed with a GOP super-majority, avoiding a repeat of 2007, when lawmakers passed a voucher bill, voters forced a referendum, and vouchers were then repealed by 62% of Utah voters. The legislature in 2023 appropriated $42.5 million from the Income Tax Fund to finance the vouchers (with a slice, of course, for ClassWallet, the voucher management company). Then in 2024 they threw in another $40 million.

Utah Fits All has most of the usual features, like voucher money being spent on any education-flavored expense of the family's choice, and some unusual ones, like mandating that nobody but the family can see inside the student "portfolio"-- in other words, nobody is allowed to know how the money was actually spent. And critically, as always, the schools receiving taxpayer-funded vouchers are not state actors and may discriminate on many bases, including LGBTQ status, disability, or religion. 

Utah's teacher union challenged the new law, thus beginning the trek to this month's decision.

As happened in South Carolina and Kentucky, the voucher fans found themselves facing a court that can read the plain language of the state constitution. The decision cites key parts of the Utah constitution, like this one:

The Legislature shall provide for the establishment and maintenance of the state's education systems including: (a) a public education which shall be open to all children of the state' and (b) a higher education system. Both systems shall be free from sectarian control.

The court also cites the part of the constitution that delineate the state's responsibility to establish and manage the education system. Does the state, asked the court, have the authority to "create an education program that is not part of the public education system." 

In what may seem like a tasty twist for court watchers, the Utah court notes that while there's an argument that some of the language of the constitution may be ambiguous or subject to interpretation of modern legislative intent, the US Supreme Court has been big on the "original public meaning: and tradition argument for reading constitutions. 

The court decision finds a couple of problems with the taxpayer-funded voucher program. 

First, the state tried to lean on a 1986 Proposition claiming that it gives the state the authority to designate schools that aren't onside the public system and are sectarian. The court agrees that there's no way that voters of 1986 would have understood the amendment to empower the legislature "to create a constitution-free zone where publicly funded education programs could operate in violation of constitutional requirements." So, the state doesn't have the authority. 

There's a similar argument with a 2020 action known as Amendment G, meant to alter the constitutional rules for using tax revenue. The discussion of the bill (by which the court judges intent) never mentions school choice, nor did the publicity surrounding it. Once again, the court determines that a taxpayer-funded voucher was not part of the intent of the bill at all.

In addition, the court finds that the proposed system is not open to all children of the state. Public schools must take the students that land on their doorstep; voucher schools don't.

Judge Scott's ruling is just short of 60 pages, much of it highly detailed and dizzying legal argument, but the bottom line is clear-- Utah privateers have to go back to the drawing board or to a higher court. She deliberately avoided a debate about the merits of choice, but instead focused on the constitutional violations-- most especially the state's argument that some taxpayer-funded schools should still get to discriminate as they see fit. 

Does this have any far-reaching implications. Unlikely. As Chris Lubienski, ed policy professor at Indiana University, told Education Week, 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. These battles will be fought state by state. And I expect we haven't heard the last from Utah.