Ohio appeals court threatens school choice scholarships, but proponents confident in state’s highest court

An Ohio district court of appeals ruled Thursday that the state’s decades-old school choice programs are unconstitutional, a decision that would end education scholarships for hundreds of thousands of students if the state Supreme Court concurs.

“Make no mistake: This ruling is an egregious example of judicial overreach,” Christian Education Network Executive Director Troy McIntosh said in a statement. “It threatens to disrupt the education of 180,000 Ohio students who rely on EdChoice to access a school that fits their needs rather than being trapped in a system where two-thirds of eighth graders fall short in reading proficiency.”

Plaintiffs in the case, including a group of school districts, are challenging Ohio’s Education Choice Scholarship Program, first enacted in 2005, according to the suit. The traditional EdChoice program offers scholarships based on zones and respective school districts, while the expansion program offers statewide scholarships based on family income, Institute for Justice attorney Keith Neely explained in an interview with Heartlander News.

The case began in 2022 and will now head to the Ohio Supreme Court after Thursday’s ruling, which defendants will appeal, Neely said. The appeals court stopped short of immediately ending the EdChoice program, which will remain in operation until all legal proceedings end, Neely explained.

Additionally, Neely said he believes the Ohio Supreme Court will side with the defendants to protect the scholarship program, based on court precedent.

“We think our arguments, which are textualist arguments about what the Constitution says, what it means, are stronger than our opponents, and we think that they’re going to resonate with the Ohio Supreme Court,” he said.

McIntosh agreed, saying he expects the state’s high court to “reverse this decision and uphold the constitutionality of EdChoice,” citing “the current composition” of the court.

The lawsuit proposed five claims for why EdChoice is unconstitutional, citing Article VI, Section 2, of the Ohio Constitution, which requires “a thorough and efficient system of common schools throughout the state.” Plaintiffs argue this clause limits the state to supporting only public schools, called common schools in the 1850s, and claim that using state tax dollars for private scholarships depletes state funds for public education.

“The problem with plaintiffs’ claim is that they’re very selectively looking at a very specific kind of state funding, and they’re not looking at total funding,” Neely said. “So, they’re sort of missing the fact that public school students also get a wealth of federal and local funding that scholarship recipients do not.”

The suit also asserts that EdChoice allows “religious sects” to “control Ohio’s common school fund” and permits discrimination through educational or behavioral evaluations for scholarship recipients, Neely explained.

Neely said the religious argument contradicts a 2002 decision from the U.S. Supreme Court that protected scholarships for private education, citing the First Amendment’s religious freedom clause.

In the initial 2022 verdict, the Ohio trial court ruled against EdChoice and affirmed four of the five arguments, excluding the racial discrimination claim. The Ohio appeals court affirmed only two of the claims: the constitutional provision requiring “a thorough and efficient system of common schools” and the alleged misdirection of state funds to support private education.

But the Ohio Supreme Court previously sided with school-choice scholarships in a case involving Ohio’s pilot scholarship program, the Cleveland Scholarship Program.

“That program has been around for 30 years, and when the court affirmed the constitutionality of that program, they affirmed it in a way that also makes the Ed Choice program constitutional,” Neely said. “So, one of the reasons we think we’re going to succeed at the next level is that we think the Ohio Supreme Court is going to be excited to talk about this issue again.”