Utah’s $100 million school voucher program violates the state’s constitution, a judge ruled Friday.
“[Because] the Program is a legislatively created, publicly funded education program aimed at elementary and secondary education, it must satisfy the constitutional requirements applicable to the ‘public education system’ set forth in the Utah Constitution,” Third District Judge Laura Scott wrote in her ruling. “The Program is not ‘open to all children of the state.’”
Gov. Spencer Cox, one of the defendants in the case, said Friday the state will appeal Scott’s ruling.
The decision comes almost a year after the Utah Education Association, the state’s largest teachers’ union, sued the state, alleging that the “Utah Fits All” program was an unconstitutional use of the state’s income tax dollars — which are reserved only for public education, higher education and services for people with disabilities.
The judge agreed, ruling the program violates Article X and Article XIII of the Utah Constitution.
Article X states the Legislature shall establish and maintain a public education system and higher education system both “free from sectarian control.”
Article XIII governs how the Legislature is to spend income tax dollars, which are currently earmarked for public education, higher education and services for people with disabilities.
“The Utah Education Association celebrates today’s court ruling deeming the Utah Fits All voucher program unconstitutional,” UEA said in a statement shortly following the ruling. “This is a significant victory for public education and a reaffirmation that public money belongs in public schools.”
The statement continued: “The Legislature overstepped its authority and the UEA acted to hold them accountable and enforce the constitution. All governmental power requires oversight and accountability to the public, and the UEA is here to ensure it.”
In addition to Cox, the lawsuit named as defendants 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. The state has since terminated its contract with the organization.
In a statement to The Tribune sent Friday evening, Cox said that “while we are disappointed in the court’s decision, our commitment to Utah families and their right to make choices about their children’s education remains unchanged.”
Cox added that his office will review the ruling with the state’s attorneys and prepare an appeal.
Attorney General Derek Brown echoed that, saying the state is evaluating its next steps.
Rep. Candice Pierucci, R-Herriman, who sponsored the bill that created Utah Fits All as well as a recent bill that made significant changes to the program, called the judge’s ruling “judicial activism.”
“The Utah State Constitution states that ‘parents have the primary responsibility for the education of their children,’” Pierucci said Friday in a statement to The Tribune. “I’m committed to fighting for this program and for Utah families — every child deserves the chance to learn in the environment that suits them best. We can support strong public education while also empowering parents through school choice."
Why is Utah Fits All unconstitutional?
At the heart of the judge’s ruling is Article X of the Utah Constitution, which requires the state to maintain a public education system that is both “free and open to all children.”
Attorneys for Cox and the attorney general argued in their July 2024 motion to dismiss the case that the voucher program did not prevent the state from fulfilling its obligation to provide Utah students with a “free and appropriate public education.”
“Nothing in the statute that creates the UFA Scholarship Program states or implies that funding for the Program will be taken from funds that would otherwise be appropriated to fund the public education system,” the motion stated.
However, the judge ruled that because the Legislature is funding the program with income tax dollars – money that is constitutionally earmarked for public education, higher education and supporting people with disabilities – the funds remain beholden to Article X’s requirements.
Families may use their scholarship to cover a variety of “educational expenses,” which includes homeschooling costs, private school tuition and even entirely on extracurricular activities, such as violin or swim lessons.
The judge ruled that while participating in Utah Fits All is “free,” it is not “open.”
“As required by the Utah Constitution, public schools must allow all resident students to enroll and may not discriminate against them,” the ruling states. “In stark contrast, every school participating in the Program has some form of an application process, which may include assessments, interviews, or tests to determine if the student is the right ‘fit.’”
Private schools and other providers participating in Utah Fits All aren’t required to serve students with disabilities and can deny admission based on factors like gender, religion or income, the ruling states.
Because of these factors — and because public funds are used to pay for private education and other educational services — the judge determined the voucher program fails to meet constitutional standards.
The judge also rejected the state’s argument that the program is outside the public education system and thus not subject to Article X. While the Legislature has some authority over education programs, the ruling states, its authority does not extend to creating a publicly funded education system that sidesteps constitutional protections.
Simply labeling it a separate program, the judge ruled, doesn’t make it exempt from the laws that apply to all public education.
Vouchers set for an overhaul this year
The Republican-dominated legislature passed HB215 in 2023, creating the “Utah Fits All Scholarship” voucher program, despite opposition from teachers and nearly every education organization in Utah.
Initially, the state allocated $42 million for the program starting in the 2024-25 school year — enough funding for about 5,000 students to each receive the allotted $8,000 share/scholarship. In February 2024, however, lawmakers injected another $40 million into the pot, raising the number of available scholarships to 10,000.
Lawmakers injected another 25% funding boost this legislative session, raising total state spending to more than $100 million.
The increase comes amid sweeping changes to the program, which has yet to complete its first full year of implementation.
Last year, all 10,000 recipients received an $8,000 scholarship, regardless of they were homeschooled or attended private school. The main rule: In order to receive the voucher money, students cannot be enrolled in public school full time.
The scholarship could then be spent on a range of “educational expenses,” including private school tuition, tutoring, homeschooling expenses and even entirely on extracurricular activities, such as violin or swim lessons.
That will change next academic year: There will be new limits on spending for certain extracurriculars — as well as varying scholarship amounts, depending on a student’s age and whether they are homeschooled.
Homeschoolers age 5-11 will receive a $4,000 scholarship, for example, and homeschoolers age 12-18 will qualify for $6,000. Students attending private schools will still receive the full $8,000, regardless of age.
This means the more than $100 million in taxpayer-backed scholarships — if the judge had allowed them — could be spread across more recipients. Last year, 80% of voucher recipients were homeschooled, lawmakers have said.
Now the fate of those millions is up in the air, though a status conference in the lawsuit, scheduled for Wednesday, could shed light on how and if the program will proceed for the 2025-26 school year, attorneys for UEA told The Tribune.
Applications for the Utah Fits All scholarship opened to renewing applicants on Jan. 21 and to new applicants on March 3. Families can continue to apply through the Utah Fits All website until the portal closes May 1.
Scholarships must be awarded within 30 days of the portal closing, according to Utah law.
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