Schools sue over voucher programs

Districts challenging the constitutionality

Calling it “an existential threat to Ohio’s public school system,” 100 school districts filed a lawsuit Tuesday challenging the constitutionality of the state’s voucher system.

If they succeed, it could mean the end of the Edchoice scholarships programs that currently cover at least part of the private school tuition for more than 50,000 Ohio children.

Supporters of the lawsuit filed in Franklin County say Ohio must “secure” a single “system of common schools” and giving $2 billion to private institutions over the last decade goes against that goal.

“Funding schools that aren’t for everybody is not the business of the Ohio General Assembly,” Columbus City School board member and plaintiff Eric Brown said. “And it is not the responsibility of Ohio taxpayers to pay for these private schools.”

Opponents say public school funding has risen significantly since the Edchoice programs were created and scrapping these scholarships would devastate thousands of families.

“The bottom line is, after maybe the most difficult educational circumstances in our lifetime, for the public schools to try and kick kids out of their schools right now is absolutely disgusting,” said Aaron Baer, a longtime school choice advocate and president of the Center for Christian Virtue. “These heartless school leaders are trying to make kids’ lives more miserable. It’s unbelievable.”

What the case is about

The lawsuit rests on five different arguments, but the crux of the case centers around the idea that school vouchers created multiple school systems, and that harmed the one common system state lawmakers were supposed to protect.

Basically, the voucher program might have started as a way to help students in low-performing schools, but it’s “increasingly paying for private school educations for all interested students.”

And that, in the eyes of the plaintiffs, is unconstitutional because more money for Edchoice has meant less money for public schools.

Take the Fairborn City School District as an example, said Andrew Wilson, a board member with Public Education Partners, a group of educators, parents and other interested parties advocating for public education. The district received an additional $90 from the new school funding formula over the next two years. Meanwhile, private schools in the district will get about $3,000 more per student.

“Virtually all growth in school funding authorized by the General Assembly in the past five years has gone to fund voucher programs,” according to the lawsuit.

But Senate President Matt Huffman, R-lima, disagreed.

“We’ve increased spending on public schools by 50% in the past 25 years, and that doesn’t count that $12 billion we spent in tobacco money on school buildings,” Huffman said. “They have plenty of money.”

Segregation in schools

Another argument in the lawsuit is that a “disproportionate percentage of non-minority students have used Edchoice vouchers.”

Nneka Jackson, a school board member from Richmond Heights, said that her district used to be 26% white and 74% minority groups.

“Today, after Edchoice, Richmond Heights is 3% white and 97% students of color, Jackson said. “What’s wrong with this picture? Everything.”

When asked why more white children might be taking vouchers in districts like Jackson’s, the attorney for Vouchers Hurt Ohio said it might come down to family economics.

“In many schools, the tuition is higher than the voucher amount,” attorney Mark Wallach said.

School choice advocates were quick to point out the suburban school districts around Ohio’s eight largest cities don’t take kids from other districts even if they have open seats.

“If people want to see systematic racism at work look at the map of districts that do and don’t allow it,” Baer said back in August. “It is the most racist policy in Ohio, and it is perpetuated by the public school system.”

And Greg Lawson of the Buckeye Institute said the data on who takes vouchers varies from school to school, but overall more minority students use Edchoice.

Ohio is about 82% white, according to data from the U.S. Census Bureau. But 50% of the students who take an Edchoice scholarship identify as white or non-hispanic, according to the Ohio Department of Education.

“The choice is there for everybody regardless of what demographic box they check,” Lawson said.

Education and the courts

Ohio has a long history when it comes to legal challenges to the way it educates students.

The Ohio Supreme Court declared part of the state’s first voucher program for Cleveland students constitutional back in 1999.

The court said those scholarships didn’t violate the First Amendment’s freedom of religion clause “because (public) funds cannot reach a sectarian school unless the parents of a student decide, independently of the government, to send their child to that sectarian school.”

The U.S. Supreme Court reached a similar conclusion in 2002.

But Ohio’s highest court also found the General Assembly’s method of funding public schools unconstitutional.

Justices in Derolph v. State of Ohio said the state’s heavy reliance on property taxes meant a child’s education was being unfairly dictated by his or her ZIP code.

Vouchers Hurt Ohio spokesman Dennis Williard said that’s exactly what vouchers are doing now.

For example, the Edchoice scholarship amounts are $5,500 for K-8 students and $7,500 per year for high school students. But children attending the Cleveland Heights-university Heights City School District get about $1,100 from the state.

The complaint claims those students are therefore being denied equal protection under the law.

“It’s discriminatory to be giving more to the private schools,” Brown said.

What happens next

The complaint asks for something called a declaratory judgment, which means they want a Franklin County Court judge to stop the Edchoice scholarship programs while the case is being litigated.

If that doesn’t happen, both sides agreed it could be years before the Ohio Supreme Court gets the case.

“We are asking our judicial system a basic question: Where does the General Assembly get the permission to fund private school vouchers?” Brown asked.

But Lawson wondered if the lawsuit served another purpose.

The new school funding formula doesn’t have guaranteed funding beyond fiscal year 2023 – something the lawsuit repeatedly points out.

“It does seem to imply that if you increase the funding, that might make it OK,” Lawson said. “Is this really about budget positioning?”

Read the lawsuit here:

Anna Staver is a reporter with the USA TODAY Network Ohio Bureau. It serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.