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
- At a virtual hearing on Wednesday, April 23, Judge Scott agreed to let the scholarship program continue while the case is under appeal after attorneys for the Utah Education Association said they had no objections. The Insitute for Justice had requested that the judge suspend her ruling while the case is under appeal to avoid disrupting families. Attorneys for the state and IJ say they will ask the Utah Supreme Court to review the decision.
- Applications for the Utah Fits All scholarship opened to renewing families on Jan. 21 and new applicants on March 3. Families can continue to apply on the Utah Fits All website until May 1.
