In early May, 10,000 Utah students were notified that they would receive an $8,000 publicly funded Utah Fits All scholarship to customize their education, including things like at-home learning or private school enrollment. The program places top priority on low-income children, and nearly 99% of scholarship recipients for the 2024-25 school year came from the program’s lowest income group.
Now, a lawsuit threatens to take this opportunity away from these students and their families.
The Utah Legislature enacted the Utah Fits All scholarship program in 2023 as a way to create additional or alternative educational options for children who can benefit from them. Separate state programs (soon to be combined into one) already offer similar options for students with disabilities; The first of these programs was available to families since 2005.
The lawsuit argues that since the Utah Constitution requires the state to establish and maintain free public schools open to all children, it is unconstitutional for the state to offer scholarships to students who might (or might not) choose to attend private schools operating under different conditions. rules. It also argues that the state cannot contract with an outside vendor to administer the scholarship program under the State Board of Education’s constitutional authority of “general control and supervision” over public education.
These arguments are based on an unreasonable reading of the Utah Constitution. There will continue to be a system of free public education open to all children even if 10,000 low-income students use publicly funded scholarships to attend private schools. The Utah Constitution gives the Utah Legislature broad authority to incorporate programs outside of public schools into the public education system.
Additionally, the State Board of Education regularly contracts with private entities to administer public education without violating the Utah Constitution. It even contracts with a private entity to run its tax credit program for educational options for students with disabilities, which has not led to any lawsuits.
Many of the arguments raised by the plaintiffs are political disagreements, not constitutional objections.
For example, the plaintiffs argue that the scholarship program will have a negative or detrimental impact on public school funding, a common political argument against educational choice programs. However, in 2023, the Legislature enacted a policy to “hold harmless” public school funding even as public school enrollment is projected to decline. In short, the scholarship program itself will not negatively impact public school funding, as that funding is up to state legislators, who have consistently increased public school budgets to record levels for years.
Additionally, the plaintiffs argue that the scholarship program could harm students with disabilities. However, state education choice programs for students with disabilities point to the opposite conclusion: Providing families with more educational options offers unique and otherwise unattainable benefits to disabled students and their families.
Political preferences and constitutional requirements are not the same and should not be confused. State courts are a forum for legal and constitutional reasoning, not a second chance for failed lobbying. If the courts interpret the Utah Constitution reasonably, Utah Fits All Scholarship recipients will have the opportunity to reach their full potential, while public schools will maintain their valuable and valued place in Utah communities.
The lawsuit, at its core, reflects a zero-sum mentality: If public schools are supported, students who would benefit from other options must be excluded; If parents receive a scholarship to help their children access private school resources, public schools must suffer. This is a wrong perspective that fuels wrong reasoning. The most compelling reading of the Utah Constitution is that the Utah Fits All program is fully constitutional.
Christine Cooke Fairbanks is an education policy fellow at the Sutherland Institute. William C. Duncan is a Constitutional Law and Religious Liberty Fellow at the Institute.
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