As education choice options expand for families across the nation, opponents are stepping up their fight to preserve the status quo.

Observers say these conflicts are examples of growing pains that come when a society undergoes transformational change.

“It’s just part of the cost of doing business,” said Michael Q. McShane, director of national research at EdChoice, a national nonprofit think tank. “Educators are not alone in challenging policies they don’t like. New laws get passed; people who can’t do things democratically try to do things through the courts.”

Michael B. Horn used a famous quote (often misattributed to Mohandas Gandhi) to describe the spate of lawsuits: “First they ignore you, then they laugh at you, then they fight you, then you win.”

“I think we’ve entered the fight stage,” said Horn, the co-founder, distinguished fellow, and chairman of the Clayton Christensen Institute and an author of several books on disruptive innovation. “Education choice has gotten big enough that the entrenched interests dedicated to preserving the status quo are starting to see it as a threat.”

Legal fights over education choice began in the 1800s when Catholic families opposed the Protestantism taught in public schools. In 1925, the U.S. Supreme Court ruled in Pierce v. Society of Sisters that parents had the right to put their children in private schools. In 2002, the high court issued another landmark decision, Zelman v. Simmons-Harris, which upheld an Ohio scholarship that allowed parents to spend the money on religious schools. The high court found that when the parent controls the expenditure, the state has no role in determining whether the parent will choose to use funding at a religious or secular school.

With the Zelman ruling settling that question, choice opponents began trying to insert race-based arguments using the language of state constitutions. Michael Bindas, a senior attorney at the Institute for Justice who argued the landmark case Carson v. Makin before the U.S. Supreme Court, outlined that shift in a paper published in the Syracuse Law Review. According to Bindas, common arguments center on education clauses requiring states to maintain uniform or common public school systems. Education choice opponents, he said, take that a step further and claim that private scholarship programs could upset racial balances that state constitutions require state governments to maintain. They also argue that the requirements that states maintain public school systems bar them from establishing concurrent private education choice programs. Lower court judges in Ohio and Utah recently cited this argument in striking down choice programs. Ohio plaintiffs also raised the issue of racial balance argument, which the judge rejected.

McShane and Horn say the spate of lawsuits won’t stop education choice programs from becoming the norm in public education. However, they will delay the transition.

“Yes, these cases are a headache and can delay implementation, but school choice has a good track record,” McShane said. “It will take numbers and time, and it’s going to tip over into a different mindset.”

Where things stand

Montana: Families are waiting on a judge to rule on a lawsuit brought by opponents of a 2024 education savings account program for students with special needs. Plaintiffs argue that the law allowing reimbursements for $6,800 per child violates several provisions of the state constitution and redirects tax dollars to private institutions at the expense of students with special needs who remain in public schools. The judge denied the plaintiff’s motion for a temporary halt to the program, allowing families to continue using their ESAs while the case is pending.

Ohio: The state has appealed a lower court’s ruling that declared the state’s $700 million Educational Choice Scholarship Program (EdChoice)  unconstitutional. In siding with the coalition of school districts and other choice opponents, the judge said that the program was not a subsidy program, as the state argued, but a separate system of schools in violation of the state constitution. However, the judge rejected the plaintiffs’ argument that the program violated the state constitution’s education clause by creating racial imbalances in the district schools. The 10^th District Court of Appeal is expected to hear the case in 2026.

Utah: Families are continuing to receive funds from the Utah Fits All scholarship program while a district court ruling in favor of a teachers union-backed lawsuit is under appeal to the state Supreme Court. A district judge ruled that the state constitution prevents lawmakers from using tax revenue to fund education programs other than public education, higher education, and services for people with disabilities. The judge rejected the state’s argument that it had met its funding obligations to public education and that nothing in the law prohibited it from funding a separate program to support families choosing private or home education.

Wyoming: Families seeking to use Steamboat Legacy Scholarship ESAs had to find other options for the 2025-26 school year after a trial judge blocked the state from distributing funds in July at the request of the Wyoming Education Association and other plaintiffs until the judge rules on their lawsuit against the program. The judge recently denied a motion by state officials and attorneys for two families to dismiss the lawsuit based on their argument that the plaintiffs lacked legal standing.

Missouri: Education choice advocates scored a win last month when a judge denied the teachers union’s request to freeze payments to the MOScholars K-12 scholarship program as their lawsuit continues. MOScholars began in 2021 as a tax credit program supported by private donors. Earlier this year, the state allocated $51 million to the program, prompting the Missouri Education Association to file the complaint, which contends that the allocation unconstitutionally diverts taxpayer funds to private schools.

Arkansas: The state’s Education Freedom Account program is being fought on two fronts. In June 2024, opponents sued in state court, arguing that the program illegally diverted tax dollars from the public school system to benefit private schools. The judge denied the state’s motion to dismiss the complaint, so state attorneys are appealing to the state Supreme Court.

The same plaintiffs filed another lawsuit a year later  in U.S. District Court.  It argues that the program violates the Establishment Clause of the First Amendment because “it aids in the establishment of religion” by providing state funding to private schools operated by religious organizations.  The state refutes that by arguing that the money can go to schools representing a wide variety of faiths, as well as secular schools.

They also argue that the program violates the Equal Protection clause of the 14^th Amendment because it discriminates against low-income families, families in rural areas where there are fewer private schools and students with disabilities, because private schools are exempt from the federal Individuals with Disabilities Education Act. The program is also discriminatory, according to the complaint, because private schools are not held to the same standards as public schools. The state attorney general has filed a motion to dismiss the case, arguing that the plaintiffs lack standing.

Kentucky: The Kentucky Supreme Court heard arguments on Sept. 11 about whether the state’s charter school funding law violates the state’s constitution. Charter schools have been legal in the Bluegrass State since 2017, but there was no state funding mechanism. Lawmakers passed House Bill 9, which allocated money to charter schools, which are publicly funded but independently managed. A trial court judge ruled in 2023 that the law violated the state constitutional ban on the use of tax dollars to support non-public education and the constitutional requirement for “an efficient system of common schools.”

 

 

 

 

 

 

Editor's note: This is the first of two post we're running this week to commemorate the 10th anniversary of the monumental U.S. Supreme Court decision in Zelman v. Simmons-Harris, which upheld the constitutionality of the voucher program in Cleveland, Ohio and kicked open the doors for expanded school choice nationwide.

Zelman made clear that the federal constitution allows states to give money to parents that they can use for tuition at religious schools. So long as states don’t directly finance the school itself, no foul. Sadly, some states have constitutions with “Blaine Amendments” that do forbid helping parents this way. These are relics of bigotry; hopefully, the federal courts or sheer political shame will one day erase them.

Would a national commitment to parental choice be a good thing? Think about it. First, remember that the choice of a religious school by parents who pay is a long settled constitutional right. It is widely exercised by those who can afford it. Middle class people in fact have considerable control over where their children enroll and what they learn; they can move to a house in their favorite suburb or they can pay private school tuition.

Clearly, our society is committed to the proposition that parental choice is a social good—at least when made by those who can pay for it themselves. The real issue, then, is whether choice is a good for kid, kin, and country when exercised by families of ordinary means and by the poor.

More bluntly—do we or don’t we want inner-city citizens exercising their rights over their own children? Why have we made it so hard for them? And even where we do allow them to choose a bit (as with public charter schools), what do we, as a society, gain or lose by excluding religious private schools as one among many choices?

Long ago Plato gave arguments for having the state seize complete authority over the child at birth from all families—rich and poor. He thought he knew the one true way and simply did not trust any parent to do right. Maybe there are some platonic arguments for various goods that America achieves when it frustrates choice to the extent it does. Is it somehow productive to snatch the child the child from the authority of ordinary parents for the prime hours of the day for 13 years? What magic is worked by government monopoly over the core experience of the child outside the home?

Is it right that we assume that ordinary parents who cannot afford to pay tuition do not deserve that choice, even if they believe the choice would be best for their children? Crime is, to be sure, more common among lower income groups. But is it less common than it would be if the government were to allow choice? What is cause here and what is effect? Do kids (and all of us) really improve by having complete strangers decide what is worth learning? And do these unchosen strangers do a better job at transmitting the ideas that all of us think important? (more…)

Next week marks the 10th anniversary of the monumental U.S. Supreme Court ruling in Zelman v. Simmons-Harris – the decision that upheld the constitutionality of the voucher program in Cleveland, Ohio and accelerated school choice nationwide by describing the conditions under which parents could use public funds to pay tuition and fees at religious schools. To honor the occasion, redefinED will bring you special posts from our partners at the American Center for School Choice.

On Monday, you’ll hear from John E. Coons, a member of the ACSC board of directors and a professor of law, emeritus, at the University of California, Berkeley. “Do we or don’t we want inner-city citizens exercising their rights over their own children?” he writes. “Why have we made it so hard for them? And even where we do allow them to choose a bit (as with public charter schools), what do we, as a society, gain or lose by excluding religious private schools as one among many choices?”

On Tuesday, ACSC executive director Peter Hanley will weigh in. He takes a closer look at the ongoing court battle over vouchers in Douglas County,  Colo., and writes this about some of the legal briefs filed in the case: “Drawing on the historical work of my American Center for School Choice colleagues … the briefs provide a lurid and extensive history of the anti-Catholic bigotry that led to a wave of state constitutional amendments banning funds to support “sectarian” (19th century code for “Catholic”) organizations. They make a compelling case that the trial court not only erred in finding the amendments were violated, but incorrectly ignored this shameful history that means they should be struck down.”

Enjoy.