Judge rules Ohio EdChoice program is unconstitutional

COLUMBUS, Ohio (WCMH) — A Franklin County judge ruled Tuesday that Ohio’s Education Choice program is unconstitutional.

This is the first ruling in the Vouchers Hurt Ohio lawsuit, a group of dozens of public schools and the Coalition for Adequacy and Equity of School funding, which challenged Ohio’s EdChoice scholarship program as unconstitutional. Judge Jaiza Page recognized the lawsuit will likely progress through appeals court, so she said although it is unconstitutional, the EdChoice program can continue until a final verdict is reached.

Page determined that the state took money from public schools to fund the voucher program, unfairly creating a second system of “uncommon private schools” directly funded by the state. The state has allocated more than $1 billion to fund the EdChoice program, particularly after the state removed the income requirement for participation.

“EdChoice involves direct payments to private religious schools, no state oversight to prevent racial, religious, or other discrimination, and the involvement of exponentially more private religious schools and funds,” Page wrote in the ruling.

Ohio offers five scholarship programs for public school students to attend private schools, two of which are the subject of the lawsuit: EdChoice and EdChoice-Exp. Students can receive up to $6,166 in grades K-8 and $8,408 for high school students in scholarship funding, supported by tax dollars. As referenced in the lawsuit, this is less than the state typically allocates per student to public schools.

The EdChoice program originally began as a way for low-income students from poorly performing districts to attend private schools. In 2022, the state expanded the program and removed the income requirements, allowing all students, regardless of financial ability, to attend private schools on at least a partially funded scholarship. The state also offers a minimum scholarship form where students can accept a partial scholarship without having to verify their income.

“We are pleased that the court affirmed what we have been saying all along,” William Phillis, executive director for the Coalition for Adequacy and Equity of School Funding, said. “The EdChoice private school voucher program, which has been diverting hundreds of millions of much-needed tax dollars from public schools to private schools, is unconstitutional.”

Phillis was behind another lawsuit over Ohio’s schools in the 1990s, which ruled Ohio’s system of funding schools did not adequately live up to the Constitutional requirements. The case, DeRolph v. Ohio, ruled that the state’s reliance on property taxes and its funding system did not fulfill the Ohio Constitution’s requirement to create a “thorough and efficient system” of public schools.

Page said the state’s voucher program also fails to create a thorough and efficient system. She ruled that the EdChoice program directly contributed to less funding for public schools, increased segregation in public schools as more white students participated in EdChoice, and unconstitutionally provided funds to religious schools without oversight.

Proponents of EdChoice say the state program allows families to make choices that work best for their families when it comes to schooling, saying high-income students who participate do not devalue the role of low-income students getting new opportunities. School Choice Ohio President Eric “Yitz” Frank said the organization “vehemently” disagrees with Page’s interpretation of the Ohio Constitution.

“We are confident of prevailing on appeal and will continue to stand alongside Ohio families who rely on these important programs,” Frank said. “We do appreciate Judge Page staying the ruling, allowing EdChoice to continue uninterrupted during the appeals process.”

The state has already pledged to appeal.

“We are appealing this decision and are confident that we will win on the merits. The judge’s decision stayed the order, so parents don’t have to panic or worry about other options while the court process plays out,” Bethany McCorkle, spokesperson for the Ohio Attorney General, said.

The judge’s ruling today is something Scott DiMauro, president of the Ohio Education Association, agrees with. 

“When money is diverted to voucher programs, particularly to fund private school tuition for kids who never set foot in a public school, the vast majority of those students coming from high-income backgrounds, that depletes resources from the nearly 90% of kids attending our public schools,” DiMauro said.

Frank said the ruling isn’t the end of the process.

“We think the Constitution will ultimately back that up, but we might need to wait for another court to make that decision in this case and, you know, obviously, we take every ruling seriously,” he said. “But again, we have district courts, appellate courts and supreme courts for a reason.”

“I am confident that when the appeals court and, if ultimately, the Supreme Court looks at the same set of facts, looks at the plain language of the Constitution, that they will rule in the same way,” DiMauro said.

School Choice Ohio is confident that the appellate court or the Supreme Court will find that the program is constitutional. 

“That being said, if it were to be immediately or ruled unconstitutional, the effect would be that there would probably be 100,000 kids that would have to leave the school of their choice right now and go elsewhere, whether that’s a public school or some other alternative,” Frank said.