School choice in Ohio has taken a big hit. On Thursday, a panel of the state’s 10th District Court of Appeals unanimously ruled the state’s Educational Choice Scholarship, or EdChoice, program unconstitutional.
Vouchers Hurt Ohio (VHO), a coalition of public school districts, banded together in 2022 to sue the state over the EdChoice program, which uses public funds to finance scholarships for K-12 students to attend private schools. Under EdChoice’s “Traditional Plan,” which has been around since 2005, students can receive annual scholarships as high as $6,166 for elementary and middle school and $8,408 for high school. The scholarship’s “Expansion Program,” which state lawmakers created in 2013, awards maximum scholarship amounts identical to the Traditional Plan, “but scale based on a family’s income,” according to EdChoice, an educational freedom nonprofit. The organization says the scholarship program supports more than 100,000 Ohio families.
The VHO argues that the EdChoice scholarship program drains funding from the public school system, depriving Ohio students of much-needed resources. Its website states “private school vouchers create a system of state-funded discrimination” and that school choice is a “myth.” Interestingly, the Court of Appeals of Ohio’s 10th Appellate District largely concurred.
The court’s ruling came down to Article VI, Section 2 of the Ohio Constitution, which says that the state must secure a “thorough and efficient system of common schools.”
The panel held that the EdChoice voucher program violates this mandate by funding a “competing system of uncommon schools.” Writing for the court, Judge David Leland took the argument further, contending that EdChoice schools “actually end up depriving families of choice.” He cited private schools’ selective admissions process and urban concentration, calling the defendants’ appeals to choice “a fundamental misnomer,” because the choice to admit students rests with the schools, not the families.
Keith Neely, an attorney at the Institute for Justice who represents families using EdChoice in the case, argues that the program funds families rather than a competing school system.
He also challenges the court’s rationale that the state’s obligation to fund public schools implicitly prohibits them from funding other forms of education. “I think that’s just fundamentally wrong as a matter of constitutional interpretation and also just as a matter of public understanding,” he tells Reason.
The court “seemed to take the view that any dollar spent on other educational programs like scholarships is a dollar that could be spent on public schools instead, but that’s not how budgeting works,” he says.
Neely says that public education funding is separate from the scholarship program and that every funding decision has tradeoffs. If the court finds that EdChoice’s school voucher program violates the state’s obligation to fund public schools, what stops it from reaching the same conclusion for other programs, like the Jon Peterson Special Needs Scholarship or the Cleveland Scholarship program, which provides private school tuition scholarships for K-12 students living in the Cleveland Municipal School District?
Neely also points to Simmons-Harris v. Goff (1999), where the Ohio Supreme Court partially reversed a lower court’s ruling and found that school choice was constitutional under the same public-education clause. The court invalidated the Cleveland scholarship program in question, finding that it was “improperly enacted by the legislature,” according to the Institute for Justice. However, the Ohio Legislature later reenacted the program.
The families using the EdChoice scholarship program—as well as the state’s attorney general—plan to appeal to the Ohio Supreme Court, and Neely is optimistic that history will repeat itself in this case. He tells Reason, “When you look at what the Constitution says, and you look at what the court said in Simmons-Harris, I think the only conclusion that the Ohio Supreme Court can walk away with is that programs like the Educational Choice Scholarship program are constitutional.” Families will be able to keep their scholarships while the litigation is pending.
This case is just one battle in a nationwide war on school choice. A recent report from Reason Foundation, the nonprofit that publishes Reason, found that 80 percent of public-school students live in states with “weak or ineffective open enrollment laws.” These laws “allo[w] students to transfer to public schools other than their residentially assigned one, provided space is available,” writes Jude Schwalbach, senior policy analyst at Reason Foundation. Several states are also holding out against the Education Freedom Tax Credit, a new federal tax credit that offers a dollar-for-dollar tax refund for donating to K-12 scholarship programs.
The court’s decision reflects the broader rationale fueling that opposition: that education dollars going to anything other than public schools are taken from ordinary students. For decades, policymakers have invested in that premise, yet student outcomes have little to show for it. The real myth isn’t school choice; it’s that giving families more options means betraying students’ education.
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