Ohio anti-voucher lawsuit misses the mark in its constitutional arguments

Marburn Academy in New Albany, Ohio, is one of 1,134 private schools in the state serving 215,189 students.

Editor’s note: This commentary appeared Tuesday on the Fordham Institute’s website.

If you’re at all involved in Ohio education policy, you’ve heard about the anti-voucher lawsuit that was recently filed by the Ohio Coalition for Equity and Adequacy of School Funding. The coalition, which is made up of dozens of traditional public school districts, hopes that a victory will spell the end of the EdChoice Scholarship Program, which served over 50,000 kids during the 2020–21 school year.

The lawsuit opens with the assertion that EdChoice poses an “existential threat” to Ohio’s public school system. The claims that follow outline several arguments in favor of abolishing the program. My colleague Aaron Churchill recently did a very thorough and efficient job of debunking the lawsuit’s claim that EdChoice has created an inequitable funding system. But there are a few other erroneous claims that also deserve rebuttals. And one of the most significant is that EdChoice is unconstitutional.

Most of the plaintiffs’ case is predicated on Article VI, Section 2 of the Ohio constitution, which reads:

“The General Assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State; but, no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this State.”

The plaintiffs’ arguments against this provision can be boiled down to this: First, the expansion of EdChoice has, in their words, “created multiple state-wide systems of publicly-funded, uncommon, private schools.” The program offends the constitution in doing so, as they believe the law “authorizes the state only to fund a thorough and efficient system of common, i.e., public, schools.”

Second, because many of the private schools that participate in EdChoice are religious, the lawsuit claims that the program violates the Ohio constitution by “placing hundreds of millions of dollars in school funds within the exclusive, unfettered control of private (mostly religious) institutions.”

Both arguments miss the mark, and here’s why.

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