Should Utah’s “school choice” program be allowed to stay put — or is it unconstitutional?

That’s the question that a judge is now weighing after spending several hours listening to oral arguments Thursday.

In the hearing, 3rd District Court Judge Laura Scott grilled attorneys for both the state and for Utah’s largest teacher union, the Utah Education Association, on the complex constitutional questions she must now unravel before issuing a ruling in the case — which she said she expects to hand down sometime in mid-to-late January. 

Earlier this year, the Utah Education Association filed a lawsuit challenging the constitutionality of the Utah Fits All “scholarship program,” which the 2023 Utah Legislature created as an effort to offer “school choice” options by setting up a fund from which eligible K-12 students can receive up to $8,000 for education expenses including private school tuition and fees, homeschooling, tutoring services, testing fees, materials and other expenses. 

Utah’s largest teacher union files lawsuit against Utah Fits All school choice voucher program

In 2023, lawmakers appropriated about $42.5 million in ongoing income tax revenue to the program. Then this year they nearly doubled that ongoing funding by adding an additional $40 million. In total, the program uses about $82.5 million in taxpayer funding a year. 

That is, if the courts allow it to continue to exist. 

In its lawsuit, the Utah Education Association alleges it’s an unconstitutional “voucher” program that diverts money from Utah’s public school system — using income tax dollars that they contend are earmarked under the Utah Constitution for the public education system and should not be funneled to private schools or homeschooling in the form of the Utah Fits All scholarship program.

The Utah Constitution has historically required the state’s income tax revenue be used only for public education, though that constitutional earmark has been loosened twice — once in 1996 to allow income tax revenue to be spent on public higher education, and once in 2020 with voter-approved Amendment G, which opened income tax revenue to be used to “support children and to support individuals with a disability.” 

This year the Utah Legislature tried to remove that education earmark completely by putting Amendment A on the Nov. 5 ballot — but that effort failed after a judge voided the question because lawmakers failed to properly publish the proposed constitutional amendment in newspapers across the state. 

Attorneys representing state officials, the Alliance for Choice in Education (a group that the Utah State Board of Education chose to administer the program), and parents of students benefiting from the program urged the judge to dismiss the lawsuit. 

They argued the Utah Legislature acted within its constitutional constraints when it created the program. They contended that when Amendment G added to the Utah Constitution the word “children” as an allowable use for income tax dollars, that created a “broad” yet “not ambiguous” category that allowed Utah lawmakers to use the revenue for the Utah Fits All scholarship fund. 

Attorneys for the Utah Education Association, however, argued that when legislators put Amendment G on the ballot and pitched it to voters, their stated intentions did not include using the funding for private school vouchers. Rather, they argued it was characterized as an effort to narrowly open the revenue up to “social services” for children and people with disabilities. 

The judge repeatedly questioned state attorneys about their position, asking for clarity on the state’s interpretation of the Utah Constitution and whether it would allow Utah lawmakers the power to create a “shadow” or “parallel” education system that could funnel public dollars to private schools, which can select students based on religion, political beliefs, family makeup or other criteria. In contrast, Utah’s public school system must be free and open to all. 

Arif Panju, an attorney representing parents who intervened in the case to argue in favor of protecting the Utah Fits All program, argued parents have a “fundamental right” to exercise their “school choice” options. 

“The mere fact that they can use a private scholarship … does not transform those options into a shadow system,” Panju argued. 

But to Scott, that still didn’t answer her question. 

“I’m getting a little frustrated,” Scott said, adding that she wasn’t trying to debate school choice but rather she was trying to conduct a constitutional analysis. 

Ultimately, state attorneys conceded their position could open the door to a “parallel” or “shadow” system — however, they argued that’s not what is being debated in this case. They argued the Utah Fits All program was funded only after the Utah Legislature appropriately funded its education system, as required by the Utah Constitution (which does not set a specific threshold). 

When the hearing’s time ran out at about 4:30 p.m., Scott said she would take the issue under advisement, and she would not be ruling from the bench. 

“I’m hopeful for mid-to-late January,” she said, “but I’m not making any promises I won’t take the entirety of the 60 days” that she has to make a decision.