Ohio's EdChoice voucher program is a classic example of how these programs are planted and then grow. But a recent court decision suggests that EdChoice will suffer because of that growth.
EdChoice was launched in 2006 after the usual wailing and gnashing of teeth about poor students trapped in underperforming public schools. But for voucher fans, this is always only the beginning. In 2013, legislators came up with EdChoice Expansion, which upped the voucher ante to 200% of the federal poverty level and removed any "trapped in a bad school" requirement. They were encouraged by Simmons-Harris v. Goff, a 1999 case in which the state supreme court found the Cleveland pilot voucher program did not violate the state constitution because it was narrow, focused and cheap (but still lost because it was birthed by legislative shenanigans-- another voucher classic).
In 2022 some public schools and students sued the state for violating Ohio's constitution and its requirement to maintain "a thorough and efficient system of common schools." Legislators were unimpressed; in 2023 they went ahead and expanded the expansion of vouchers, offering vouchers to any family, regardless of income (if you were more than 450% of the poverty line, you only got part of a voucher). However, the program commenced to suck up $1.4 billion-with-a-b in taxpayer dollars.
Last year a Franklin County judge declared the voucher program unconstitutional. The state appealed to the Tenth Appellate District Court of Appeals, and last week that court agreed that, yes, the program violates the state constitution.
The court found a couple of problems. Bottom line:
EdChoice, as presently structured and funded, secures with taxpayer funds a competing system of uncommon schools that is not subject to the same obligations imposed on Ohio’s system of common schools. This system of uncommon schools violates the mandate of Ohio Const. art. VI, § 2 to secure “a thorough and efficient system of common schools throughout the state.”
The court finds that EdChoice schools are not common schools for three reasons.
First, the schools--not the parents--choose which students to admit, without "any meaningful constraints on the schools' selection process. They "actually end up depriving families of choice." Second, EdChoice schools are available only in urban areas; rural students don't get that choice. Third, EdChoice schools are not "subject to any meaningful state oversight. " No fiscal oversight, no requirement for teacher licensure. And as noted in the first point, no meaningful anti-discrimination regulations.
The court also finds that EdChoice "undermines the financial integrity" of the state's public schools. Again, three reasons.
First, taxpayer funds are diverted to private schools instead of public ones. This is a particularly bitter pill in Ohio, where the courts thirty (thirty!!) years ago told the legislature that the school funding formula was unconstitutional and they needed to shape it up. The legislature dithered and ten years ago came up with a Fair School Funding Plan, which they have since failed to actually fund, or even act like they want to.
Second, EdChoice increases the per-pupil cost of educating the students remaining in public school, because voucher schools select the cheapest-to-serve students.
The third point is a more subtle one, and I'm a little impressed that the court got it. In Ohio, taxpayers get to vote directly on education tax increases (levies). The court correctly concludes that EdChoice makes local taxpayers less likely to vote for local tax levies. We've actually seen this movie before-- after Brown white parents pulled their children out of public schools and sent them to segregation academies, but then they also chopped taxpayer support for the schools their children no longer attended. Says the court-
We recognize that many factors influence whether levies pass or fail. However, the record supports the conclusion that EdChoice’s impact on public schools— through the extraction of resources and the erosion of the public’s incentive to remain invested in local schools—is among those factors that may affect levy support.
So EdChoice is, in fact, unconstitutional.
Is this the end? Of course not. Recognizing that this case will continue to climb the judicial ladder all the way to the state supreme court, the appellate court has allowed that the program can continue while the legal wrangling goes on. The law shops lined up to help the state include some Catholic school heavy hitters, including the Notre Dame Law School Religious Liberty Clinic, which has gotten involved in some tax dollars for religious school business before.
Meanwhile, a House version of "Take The Dough, We Gotta Know" bill wants to add some transparency to the Ohio voucher landscape. The Ohio GOP really aspires to make Ohio the Florida of the North, and people just keep getting in their way. May their hard times continue.
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