The fate of Utah’s voucher program remains uncertain after a judge on Wednesday ordered the plaintiffs and defendants to return to court with more historical information to help determine whether the state’s $82 million Utah Fits All scholarship program is constitutional.
The Utah Education Association, the state’s largest teachers union, first sued the state in May, alleging that the program was unconstitutional and an illegal use of the state’s income tax dollars — currently reserved only for public education, higher education and services for people with disabilities.
The UEA’s complaint came more than a year after Republican lawmakers in 2023 pushed a controversial bill file through in just 10 days to establish the program.
The lawsuit named as defendants Gov. Spencer Cox, then-Utah Attorney General Sean Reyes and the Alliance for Choice in Education (”ACE”), the organization hired by the Utah State Board of Education to manage the voucher program — which ACE refers to as an “education savings account” program — and its application process.
Third District Judge Laura Scott heard arguments in December but opted not to issue a ruling from the bench.
During the hearing, Scott questioned whether to rely on a narrow reading of Utah’s constitution and its relevant voter-approved amendments to make her decision — or instead, the plaintiff’s exhibits, which reflected how Utah voters from the 1980s or early aughts thought about how those amendments could apply at the time.
In other words, could she consider whether Utah voters knew how education funding may change over time when they approved relevant constitutional amendments decades ago? Or should she rely on the plain language of the constitution, which allows lawmakers to fund programs using income tax revenue in order to broadly “support children”?
Now, Scott wants more evidence to ascertain the “original public meaning” of the two relevant constitutional amendments — Proposition No. 3 (1985) and Amendment G (2020) — to help make her decision.
What historical information is the judge seeking?
For 50 years, Utah allocated 100% of its income tax revenue solely for public education. This changed in 1997, when voters amended the Constitution to allow income tax revenue to also go toward higher education.
The earlier Proposition No. 3 is relevant because it amended the state constitution to separately define the “higher education system” and “public education system.”
It also allowed the state and local governments to provide “certain types of indirect support” to schools partially or fully controlled by religious organizations, lifting the previous ban on any government appropriations to such schools. But the amendment still prohibited “direct support” without further defining what constituted “indirect support.”
In 2020, Amendment G allowed income tax revenue to also fund services for children and individuals with disabilities.
Lawmakers last year attempted to expand income tax revenue spending again with Amendment A, a ballot proposal that would have allowed the state to use income tax dollars for a “broader range of state needs.”
UEA sued over Amendment A, too, tacking on a supplemental complaint to its original May lawsuit. In this case, the UEA asked the judge to throw out the amendment.
Scott ultimately ruled the ballot question void. That resolution followed the Utah Supreme Court’s ruling on Sept. 25 that upheld a lower court’s decision to void Amendment D, which would have given the Legislature the power to repeal citizen-passed ballot initiatives.
In both cases, plaintiffs argued that the Utah Legislature violated Article XXIII of the Utah Constitution, which mandates that ballot language must be published in newspapers statewide at least two months before appearing on ballots.
Scott on Wednesday ordered both parties to submit their supplemental briefings on Proposition 3 and Amendment G by Feb. 19, unless a different briefing schedule is agreed upon.
The briefings must include any relevant legislative history and source materials, plus an explanation as to how that history supports their interpretation of the texts.
Lawsuit arguments
Families began receiving Utah Fits All scholarships this year, which they can use to send their kids to private school, homeschool them, or pay for a wide range of educational expenses, such as piano lessons or ballet.
The maximum scholarship available — $8,000 — is nearly double what a student is traditionally designated in Utah’s public school system, under what is called the weighted pupil unit. That number is currently set at roughly $4,400 per child.
The UEA asserts in its complaint that the voucher program violates multiple provisions of the state constitution, which requires Utah to establish a “free education system” that is equally accessible to every child.
Creating a publicly funded voucher program — where taxpayer dollars can help fund private school tuitions, but likely won’t cover the entire cost of tuition — means the system supported by Utah is now no longer free, the union argues.
The UEA also argues that the program diverts income tax revenue toward potentially paying for private education expenses when that revenue is currently only reserved for its three core purposes.
In July, attorneys for Cox and Reyes filed court papers to throw out the lawsuit, arguing that the voucher program “is not an education system” and that the Utah Legislature acted within its constitutional authority to use public money to “support children.”
Scott Ryther, with the attorney general’s office and representing the state, said at the December hearing that the phrase “to support children” is not ambiguous. It is “somewhat broad,” he said, but it’s clear.
He preferred that Scott rely on the Utah constitution for her ruling, although he argued that even if she considered the plaintiff’s exhibits, she would come to the same conclusion.
Meanwhile, lawmakers have said they’re looking to further fund the voucher program.
“There’s certainly a demand for more funding,” Sen. Kirk Cullimore, R-Cottonwood Heights, said Tuesday. “Obviously, with the budget circumstances as they are, it’s just a matter of what can we find. But there will be a request for more funding.”
