The 2022 lawsuit filed by a coalition of Ohio’s public school districts over the constitutionality of the state’s EdChoice universal vouchers went to the Tenth District Court of Appeals Tuesday. At issue is whether the state constitution, which requires funding of public schools, also allows the state to fund vouchers for all students to go to private schools.
The state has argued that the EdChoice program provides educational options to better serve students and families, and that vouchers are scholarships and not state funding for private schools.
A Franklin County Common Pleas judge found the EdChoice program is unconstitutional, but allowed the program to continue while litigation goes on. In this fiscal year, there are 42,607 students in the traditional EdChoice program and 100,941 students in the EdChoice expansion.
More than half of Ohio’s over 600 public school districts are in the Vouchers Hurt Ohio group, which is represented by Mark Wallach. The schools' argument is grounded in Article VI, Section 2 of the Ohio Constitution, which "requires the General Assembly to secure a “thorough and efficient system of common schools”.
“The issue here isn’t choice. It's education," Wallach told reporters after the arguments. "The school systems exists not to provide choice. They exist to provide education so we have educated citizens.”
"Education isn't a zero sum game," said Kevin Neely with the Institute for Justice, a libertarian law firm which has teamed up with the state. "This is a great state that can provide both support for students who want to obtain a public education, and students who want to obtain a private education. And the plantiffs' suit is, I think, a little misguided and kind of treating education in a zero sum game sort of way."
But Wallach said the choice really lies with the private schools.
“That's what gets lost with all of this nonsense about choice, as I think was pretty clear that the real choices here belong to the schools. They don't belong to the students anyway," Wallach said. "The students can only decide to apply. The schools decide who they want to take.”
“This is kind of a spite suit," Neely said. "It's not about improving the quality of Ohio public schools. It's about trying to take away choice from other people.”
The three judges hearing the case are all Democrats—David Leland, Kristin Boggs and Shawn Dingus. Leland and Boggs are former state lawmakers. The judges asked several questions about whether ending the EdChoice program would help public schools, and whether private schools can actually provide choice because they can decline to accept students.
Public schools have long claimed that schools are underfunded, and money provided to vouchers is funding that can't be invested in public education. But the state and private schools have pushed back on public schools for using funding that comes from taxpayers to sue the state over vouchers.
A decision from the appeals court is expected in the next few months. The case is almost certainly headed to the Republican-dominated Ohio Supreme Court.
