In early May, 10,000 Utah students were notified that they would receive a publicly funded, $8,000 Utah Fits All Scholarship to personalize their education, including things like at-home learning or private school tuition. The program gives low-income children top priority, and nearly 99% of scholarship recipients for the 2024-25 school year came from the lowest income bracket for the program.
Now, a lawsuit threatens to take away this opportunity from these students and their families.
The Utah Legislature enacted the Utah Fits All Scholarship program in 2023 as a way to create additional or alternative educational options for children who can benefit from them. Separate state programs (soon to be combined into one) already provide similar options for students with disabilities, with the earliest of these programs having been available to families since 2005.
The lawsuit argues that since the Utah Constitution requires the state to establish and maintain free public schools open to all children, it is unconstitutional for the state to offer scholarships to students who might (or might not) choose to attend private schools that operate under different rules. It also argues that the state cannot contract with an outside provider to administer the scholarship program under the State Board of Education’s constitutional authority of “general control and supervision” over public education.
These arguments are based on an unreasonable reading of the Utah Constitution. A free public education system open to all children will continue to exist even if 10,000 low-income students use publicly funded scholarships to attend private schools. The Utah Constitution gives the Utah Legislature broad authority to incorporate programs outside of public schools into the public education system.
Additionally, the State Board of Education contracts regularly with private entities in administering public education without violating the Utah Constitution. It even contracts with a private entity to run its education choice tax credit program for students with disabilities, which has triggered no lawsuit.
Many of the arguments raised by the plaintiffs are policy disagreements, not constitutional objections.
For example, the plaintiffs argue that the scholarship program will have a negative or harmful impact on public school funding, a common policy argument against educational choice programs. However, in 2023, the Legislature enacted a policy to “hold harmless” public school funding even as public school enrollment is projected to decline. In short, the scholarship program itself won’t negatively affect public school funding, as that funding is up to state legislators, who have consistently increased public school budgets to record highs for years.
Furthermore, the plaintiffs argue that the scholarship program could harm students with disabilities. However, the state’s education choice programs for students with disabilities point to the opposite conclusion: Giving families more educational options offers unique and otherwise unattainable benefits to disabled students and their families.
Policy preferences and constitutional requirements are not the same and should not be confused. The state courts are a forum for legal and constitutional reasoning, not a second chance for failed lobbying. If the courts read the Utah Constitution reasonably, Utah Fits All scholarship recipients will have the chance to meet their full potential, while public schools will maintain their valued and valuable place in Utah communities.
The lawsuit, at its base, reflects a zero-sum mindset: If public schools are supported, students who would benefit from other options must be excluded; if parents receive a scholarship to help their children access private school resources, public schools must suffer. That is a misguided perspective that fuels flawed reasoning. The more compelling reading of the Utah Constitution is that the Utah Fits All program is wholly constitutional.
Christine Cooke Fairbanks is the education policy fellow for Sutherland Institute. William C. Duncan is the Institute’s constitutional law and religious freedom fellow.