Maria Ruiz calls the Utah Fits All Scholarship Program 'a rich blessing' for her family and is one of two parents fighting to protect the program from being shut down. This week a district judge ruled it unconstitutional. Photo courtesy of the Institute for Justice
Editor's note: This story has been updated with the outcome of the status hearing on April 23.
When Utah officials defended a union-backed court challenge to its Utah Fits All Scholarship Program, they relied on cases in five other states in which courts upheld similar programs as constitutional.
However, in her ruling against Utah’s scholarship program last week, Third District Judge Laura Scott noted the absence of a Florida case: Bush v. Holmes.
The 1999 complaint challenged the Florida Opportunity Scholarship Program. In it, the Florida Supreme Court ruled in 2006 that the program violated the constitution’s provision requiring a “uniform” system of public schools for all students.
On page 31 of the 57-page order in the Utah case, Scott cited Florida Chief Justice Barbara J. Pariente’s opinion, which said that the Opportunity Scholarship Program “diverts dollars into separate, private systems…parallel and in competition with the free public schools” and funds schools “that are not ‘uniform’ when compared with each other or the public school system.”
Scott wrote that the Florida provision “acts as a limitation on legislative power” and that in spelling out how something must be done, it effectively forbids it from being done differently.
Scott used that reasoning, along with a 2001 Utah Supreme Court ruling that dealt with the legislature’s authority to grant the state board of education the power to approve charter school applications, to form the basis for her ruling that declared the Utah Fits All program an unconstitutional overreach.
Because Utah’s Education Act does not mention any other duties except “establish and maintain a public education system which shall be open to all children of the state, and a higher education system, which shall be free from sectarian control,” it is a ceiling and not a floor.
“Accordingly, the court concludes that the legislature does not have the plenary authority to create a publicly funded education program that is outside of the public school system that is neither open to all the children of Utah nor free.”
An attorney representing two scholarship parents trying to protect the program, said the judge based her ruling on a flawed interpretation of the state constitution.
“The district court abandoned the plain text of the Education Clause and read in a restriction on legislative power where none exists,” said Arif Panju, senior attorney for the Institute for Justice. “In state after state, state supreme courts have had to reverse trial courts in these cases.”
Lawmakers approved the Utah Fits All program in 2023. It took effect in fall of 2024 and gives eligible K-12 students up to $8,000 a year for private school tuition and other costs.
In the first year, more than 27,000 students applied for 10,000 available scholarships. Among them is Maria Ruiz, a restaurant manager and mother of two whose husband has battled serious health problems and amassed a large medical debt. The scholarship program has allowed her to afford private school tuition and keep her son and daughter in the schools that she has determined provide the best educational fit.
If the court shuts down the program, “I wouldn’t be able to pay,” she told NextSteps last month.
Scott’s ruling didn’t say if or when the program would be halted. State officials say they plan to appeal to the Utah Supreme Court. The Institute for Justice, which represents two parents seeking to protect the program as intervenors, say they also plan to appeal.
The district court abandoned the plain text or the Education Clause and read in a restriction on legislative power where none exists. In state after state, state supreme courts have had to reverse trial courts in these cases.
This isn’t the first time that issues like those raised in Bush v. Holmes have surfaced in challenges to education choice programs in other states. Last summer, education choice opponents sued the state of Arkansas over its Education Freedom Accounts program that provides state funds for approved educational expenses. The program, passed in 2023, is being phased in over three years, with universal eligibility in the third year.
The complaint, filed in circuit court, says the Arkansas Supreme Court has “consistently upheld the constitutional requirement that public school funds may not be used for non-public purposes.” It also says the law will “drain valuable and necessary resources from the public school system and create a separate and unequal school system that discriminates between children based on economic, racial and physical characteristics and abilities.”
The case is pending.
Though the Florida Supreme Court sided with choice opponents, legal experts criticized the 2006 ruling as flawed and politically inspired. The Harvard Law Review said the court based its decision on “adventurous reading and strained application” of the Florida Constitution.
Where things stand
Maria Ruiz and thousands of other families could lose their ability to choose schools that best fit their children's educational needs if a judge strikes down the Utah Fits All ESA program. Photo courtesy of Institute for Justice
Maria Ruiz is at the hospital again.
She’s with her husband, Carlos Dominguez, who is still receiving care to help him recover from health issues after suffering a stroke in 2021. His treatments have left Maria as the sole full-time breadwinner.
They live with their two teenage children in Tooele, a fast-growing bedroom community on the southwest shore of Utah’s Great Salt Lake.
Like many residents of Tooele County, Ruiz commutes about 50 miles to Salt Lake City, where she works as general manager at a Carl’s Jr. restaurant. Her salary barely covers the bills. Over the years, she has worked multiple jobs to scrape together enough money to cover the tuition necessary for her son and daughter to attend the schools that she says best meet their educational needs. In addition to her primary restaurant job, she cleaned houses, sold baked goods, and worked at a bakery.
Her son, a high school junior, also works nights at the Salt Lake City International Airport to pay for his car and related expenses and to help ease his mother’s financial burden.
Those burdens got lighter last year. Ruiz had been enduring financial hardship to send her children to private schools, where they felt seen and valued by teachers who helped instill moral virtues. Her children were awarded scholarships through the newly expanded Utah Fits All scholarship program, which meant Ruiz could get up to $8,000 per child to help cover tuition.
“I could pay off some medical debt,” she said, adding that she would look for better health insurance to help cover her husband’s treatment. She called the scholarship program “a rich blessing” to her family.
But the relief she felt from receiving the scholarships soon turned to worry when Utah’s largest teachers union filed a lawsuit asking a judge to strike down the program.
The arguments outlined in the complaint were like those filed in other states, where programs allow families to direct public funding to learning. The Utah lawsuit alleges the program diverts income tax dollars earmarked by the state constitution for the state’s public education system, higher education and disability services and funnels them to private schools and homeschools. The state attorney general argued that the program amounts to only 1% of the state’s $8.43 billion annual budget for public schools and that “nothing states or implies” that scholarship funds would be taken from money that would otherwise be appropriated to the public education system.
Utah’s attorney general is defending the case. Ruiz and Tiffany Brown, a mother of eight, including a child with special needs, joined attorneys at the Partnership for Educational Choice as intervenors to defend and protect the scholarship program.
A judge is expected to rule this spring. Ruiz said her children have struggled in their previous schools. When her son was in the fourth grade, she moved him to a public school to help make ends meet. But his academic performance suffered because “the teachers didn’t care about him,” she said. He also experienced bullying.
“I went in once or twice, and they don’t recognize you,” she said.
Despite the financial hardship, she returned him to private school, where he thrived. She said her kids’ private schools, which are both faith-based, instill moral virtues while also offering personalized education and a sense of community.
“At the private school, they recognize you on the phone,” she said. Classes were small, and school leaders knew every kid’s name.
Ruiz’s daughter, who witnessed her dad’s stroke and called 911 as her mother tended to him, is still recovering from that experience. The personal care she receives at her school has helped.
She said if the court strikes down the program, the effect on her family and others would be devastating.
“I wouldn’t be able to pay,” she said. She owes one school money, but she said the administrators have shown patience and compassion.
“They know me,” she said. “And they know I’m going to pay.”
Meanwhile, the medical bills continue to pile up. Ruiz’s husband is receiving physical therapy for a foot wound that required a toe amputation. Despite five eye surgeries for retinal problems and cataracts, he still has no sight in his right eye.
“His health has been a roller coaster,” she said. “It has been doctor after doctor after doctor.”
Ruiz believes it’s important to show the court and the public how much of a lifeline Utah Fits All is to families facing economic challenges.
“Regardless of our family’s needs, the money needs to be used for the right purpose, to benefit people’s lives. Many kids drop out because they don’t get treated properly.”
Two South Carolina parents are fighting to reclaim the power to direct their children’s education after a state Supreme Court ruling ripped it away only weeks into the new school year.
Yamilette Albertson Rodriguez and Constantine Shulikov teamed up with the national nonprofit law firm Institute for Justice to file a lawsuit Thursday to restore South Carolina’s Education Scholarship Trust Fund (ESTF) program. Lawmakers passed the program last year so that children from low-income families could use the scholarships to attend private schools. The education savings account also lets parents direct funding to buy approved education-related materials.
The parents' lawsuit, filed in the South Carolina Supreme Court, challenges the federal constitutionality of a state Department of Education policy that prohibits parents from using their children’s scholarships to pay for tuition at private schools. That policy came after the South Carolina Supreme Court ruled that letting the parents spend their funds on private school tuition violated the state’s constitutional ban on direct aid to private schools.
The parents’ lawsuit contends the state court ruling and resulting education department policy violates the U.S. Constitution.
“Because of this prohibition, five thousand low-income families lost the ability to use their scholarships to attend private schools,” said IJ educational choice attorney David Hodges. “This is a travesty not only for these children, but for the rule of law. These education scholarships were meant for every family — not every family except the ones who choose a type of education that the state constitution disfavors.”
South Carolina’s ESTF program was created in 2023. The program gives thousands of qualifying, low-income families a $6,000 scholarship that parents can use to purchase educational expenses. When the program was created, qualifying expenses included, among other things, tuition and fees at public and private schools, textbooks and curriculum for homeschooling, tutoring, school supplies, therapies, exams, and extracurricular activities, as well as any other educational expense approved by the state Department of Education.
Once the program was signed into law Rodriguez and Shulikov jumped at the opportunity to send their children to private schools that better fit their educational needs than the public schools in which they were enrolled. But, due to the Department of Education’s response to the ruling, the quarterly payments cannot be used on tuition anymore.
“It feels like I’ve had the rug pulled out from under me,” said Rodriguez, a Marine veteran who used funds from the program to enroll her 17-year-old daughter and 6-year-old twin sons in a private school. “My kids are succeeding in subjects that they used to struggle in, but without the scholarship money, I’m not sure how I’m going to afford tuition.”
Yamilette Albertson Rodriguez is one of two South Carolina parents suing to restore the state's Education Trust Fund Scholarship program.
Rodriguez, who was deployed to the Middle East to help conduct counter-piracy operations, is the sole income provider in her household. In addition to providing for her three children, she takes care of her 65-year-old father who recently moved in due to chronic health issues, including cancer. She felt her daughter’s original public school was below her expectations. Now, her daughter is succeeding in class and receiving support to pursue higher education. The teenager is so passionate about the education she’s receiving that she offered to get a job at a shoe store to help pay for her brothers to also attend the school. The job made the difference. Between Rodriguez's and her daughter’s earnings, Albertson’s savings, and the ESTF Program, the family was able to pull together enough money to pay for the education of all three children at the school. The court ruling, issued just weeks after the start of the 2024-25 school year, sent scholarship families scrambling for alternatives.
A $900,000 donation from billionaire Jeffrey Yass and other charitable contributions threw them and other families a lifeline, but that lasts only until the end of 2024.
The issue for South Carolina and 37 other states, has what is called a “Blaine Amendment.” These amendments, named after former Maine Sen. James Blaine, typically restrict public funds from being used for the “aid” or “benefit” of religious schools. However, South Carolina’s Blaine Amendment goes much further than those in other states and bans public funds from being spent “for the direct benefit” of any private school, regardless of religion. It is this provision, as interpreted by the South Carolina Supreme Court, that the South Carolina Department of Education is now using to justify its ban on the use of the ESTF Program to pay for private school tuition and fees.
IJ’s lawsuit argues that the state’s application of its Blaine Amendment is unconstitutional under two landmark United States Supreme Court cases: Meyer v. Nebraska, which recognized the right of parents to direct the education of their children; and Pierce v. Society of Sisters, which held that this right includes the right to send one’s children to a private school.
“South Carolina allows low-income families to use their scholarship funds on virtually any type of educational expense, public or private, except one: tuition at a private school,” IJ senior attorney Michael Bindas explained. “The state is penalizing parents who choose private schools for their children, a choice protected by the U.S. Constitution. The state cannot point to the South Carolina Constitution as justification for this discrimination, because the federal Constitution prohibits it.”
Editor’s note: The following is the text of a news release issued Monday by the Institute for Justice.
ARLINGTON, Va.—Today, the Institute for Justice (IJ) sent a letter to officials in Cobb County, Georgia, calling on them to stop weaponizing building and fire safety code laws to crack down on learning pods and other hybrid education setups.
During the pandemic, learning pods became a reliable way for parents to educate their children while traditional schools were closed. These pods are typically groups of children, organized by parents, who come together for instruction in a location such as a church or a home school setup to supplement either traditional schooling or home schooling.
The programs are so popular that the Georgia Legislature, with help from the Georgia Public Policy Foundation, passed a law in March of 2021 protecting these pods from overly burdensome regulations, including certain building codes and fire safety codes. Despite that, Cobb County’s fire marshal recently informed several different hybrid learning co-ops that if the buildings they were using did not reapply for a different certificate of occupancy by Aug. 8 they would be saddled with daily fines of $1,000.
“Cobb County’s proposed crackdown is a direct violation of the law protecting learning pods,” said IJ Attorney Suranjan Sen, one of the authors of the letter. “Officials should not be using building code laws to deny families the education they feel best fits their children’s needs.”
These pods are all currently using classroom space in different churches, and the churches each have certificates of occupancy for “assembly.” Yet the fire marshal is using a burdensome building code law to say these churches must also receive certificates of occupancy for “education” if they offer more than four hours of instruction per day. At the same time, the marshal is not demanding this of church preschool programs—further suggesting that the requirement is in fact unnecessary.
In order to reapply for the new permit, the churches would need to get an architect and submit site plans to the fire marshal, who would then inspect the buildings. After the inspection, the fire marshal could require the churches to make upgrades to their buildings that could total thousands or even tens of thousands of dollars. One pod, Arrows Academy, already shut down because of the crackdown last week.
“Learning pods provide families with flexible, quality education. Local governments should be making it easier for parents to find these educational options, not trying to regulate them out of existence,” said IJ Senior Attorney Erica Smith Ewing. “If these buildings are safe for mass and Sunday school, they’re also safe for learning pods.”
St. John the Baptist Hybrid School is another school that has come under threat by the fire marshal. The school, which serves 97 students, offers supplemental instruction for home schoolers Monday through Wednesday in Christ Episcopal Church in Kennesaw.
"St. John the Baptist Hybrid is an 'accredited with quality' educational program for Catholic home school families. We are a group of home school parents who came together with the primary goal of providing exceptional classes to supplement our home school experiences,” said Sharon Masinelli, the school’s administrator. “Our facility has passed all standards for a certificate of occupancy for assembly and was inspected by the fire marshal, who deemed this appropriate one year ago. Our hybrid program and facility have undergone rigorous evaluation by our accreditation agency. We sincerely hope the regulations which are newly imposed on facilities hosting home school groups will not deprive our families of school choice."
IJ is the nation’s leading advocate for educational choice. Earlier this year, IJ won a landmark 6-3 ruling before the U.S. Supreme Court which held that states may not prohibit families that participate in educational choice programs from selecting schools that provide religious instruction. Two years prior, IJ won another massive school choice case before the nation’s highest court.
Editor's note: This is the second of two posts we're running this week to commemorate the landmark U.S. Supreme Court decision in Zelman v. Simmons-Harris.
As we commemorate the 10th anniversary of the landmark Zelman Supreme Court case, its implications are widely visible in the expansion of voucher programs, such as those in Indiana and Louisiana, as well as the growth of tax credit scholarship programs from Florida to Arizona. But the primary Zelman principle - that parents can utilize scholarship funding to enroll in any qualified school that they believe will best educate their children - is also at the heart of an important court battle in Douglas County, Colorado.
Conceivably, Zelman could not only lead to the reinstatement of an innovative voucher approach that local school districts could adopt more broadly, but also provide a pillar for arguments to overturn Colorado’s discriminatory and prejudiced Blaine Amendments.
Beginning in June 2010, the Douglas County School District’s School Choice Task Force began a series of community discussions to align its programs with its overarching policy of “universal choice.” The purpose: to create “multiple pathways for educational success” and then to assist families in choosing the best educational program for their child. This led in March 2011 to the adoption of a pilot Choice Scholarship Program (CSP) whereby in the 2011-12 school year up to 500 families could receive either the lesser of a private school’s tuition or 75 percent of the per-pupil revenue the district received. This amounted to a scholarship of $4,575 for 2011-12.
Just before its implementation in fall 2011, the Denver District Court issued a permanent injunction against the program because it caused state funds to flow to religious schools, violating the Blaine Amendments in the Colorado constitution and the Public School Finance Act. The appeal to overturn this decision attracted high-powered support from the Colorado Attorney General, the Beckett Fund for Religious Liberty, the Institute for Justice on behalf of families that had received scholarships, and the school district itself. Zelman is at the heart of their legal briefs.
The Institute for Justice notes that neither the school district nor the state has any role in selecting the school in which the family enrolls, i.e., this is a private choice program that Zelman specifically endorsed as constitutional. Citing the Zelman decision, when a scholarship program “permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients, the circuit between government and religion is broken,” and any “incidental advancement of a religious mission…is reasonably attributable to the individual recipient, not to the government.” This principle of parental choice, which state supreme court decisions upholding voucher programs in Wisconsin and Ohio recognized even prior to Zelman, led an Indiana court this year to reject a challenge to the Indiana Choice Scholarship Program. Yet, for some reason, the Colorado trial court chose to ignore this precedent. (more…)
