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.
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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.”
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Scott Ryther during a hearing on Utah Education Association’s lawsuit against the Utah Fits All Scholarship (voucher) program, in Salt Lake City on Dec. 19, 2024. (Pool photo by Trent Nelson/The Salt Lake Tribune)
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. Ramya Ravindran during a hearing on Utah Education Association’s lawsuit against the Utah Fits All Scholarship (voucher) program, in Salt Lake City on Dec. 19, 2024. (Pool photo by Trent Nelson/The Salt Lake Tribune)
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.
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“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.
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“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.
Like many utilities in the Trump era, Rocky Mountain Power is pulling back on its renewable energy plans. But more than a dozen Utah communities are taking matters into their own hands.
About 300,000 homes and businesses will soon be part of a novel, bottom-up program to bring new clean power to the state’s fossil-fuel-heavy grid. The Utah Renewable Communities initiative allows city and county governments to offset their electricity use with 100 percent renewable power, backed by a $4 monthly bill surcharge.
“There’s no other program available to our residents that is this affordable or this impactful to Midvale’s environmental and economic future,” said Dustin Gettel, mayor of the Salt Lake City suburb of Midvale.
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Midvale is set to vote Tuesday on whether to join 15 other communities that have signed up ahead of an enrollment deadline next week. Three other eligible communities have opted out, although one may reconsider.
This coverage is made possible through a partnership between Grist and The Salt Lake Tribune, a nonprofit newsroom in Utah.
A sprawling, 40,000-acre data center planned for northern Utah has stirred up controversy across the state over the past month, partly because of the pollution it’s expected to contribute to a region that already struggles with smog.
Officials with the quasi-governmental Military Installation Development Authority, or MIDA, which approved the project and created tax incentives to spur its development, have become de facto cheerleaders for the data center campus, called the Stratos Project. They say Kevin O’Leary, the Canadian TV personality and the main backer of Stratos, specifically selected a remote valley north of the Great Salt Lake because a gas pipeline runs through it.
The plant that will generate electricity for the data complex would be powered “100 percent off the Ruby Pipeline,” a MIDA official said in April.
But after weeks of protests, reams of comments against the project, and disgruntled Utahns digging into state leaders’ finances and family businesses, the state’s Republican governor has now asserted the project will “never” be solely powered by natural gas.
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“That’s never going to happen,” Governor Spencer Cox told The Salt Lake Tribune last week. “The very first phase will be natural gas, but the other phases should not be. They should be nuclear, and they should be geothermal, and solar and other technology.”
The proposed Stratos Project is light on details so far. O’Leary has said that at full build, it will be one of the biggest data centers in the world, as large as Washington, D.C. Scientists, environmental advocates and some residents have raised alarms about the impact that the project — and the possibility of a massive natural gas plant to power it — could have on air quality, greenhouse gas emissions, and water supplies near the shrinking Great Salt Lake.
According to some estimates, a 9-gigawatt power plant entirely powered by natural gas could raise Utah’s carbon emissions by 64 percent. Although it’s still unclear how much water the facility would need, the project’s developers have said they’re working to secure 13,000 acre-feet in Hansel Valley and the surrounding area, which is mostly agricultural. That’s enough water to meet the needs of more than 20,000 households in Utah.
The north end of the Great Salt Lake and Hansel Valley, the planned site for the Stratos Project.
Trent Nelson / The Salt Lake Tribune
Opposition to the proposal has been intense. A water right filed to support the data center and power plant received nearly 4,000 letters of protest this month. Opponents held a rally at Utah’s Capitol last week and delivered a letter to Cox with more than 6,000 signatures urging him to take “binding action” to preserve the Great Salt Lake instead of issuing platitudes over social media.
During a news conference on Wednesday announcing a geothermal partnership with the neighboring states of Arizona, Colorado, and New Mexico, Cox acknowledged problems with the rollout of the Stratos Project in Box Elder County, saying future decisions like it should involve his office and elected representatives.
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“There’s no question, the process was not good,” Cox told reporters. “It’s something I’ve worried about for a long time with that entity that made that decision.”
Cox appeared to be referring to MIDA, a development authority ostensibly meant to fund projects to support the military. Its biggest developments in recent years, however, include a hotel at the Deer Valley luxury ski resort and a swanky ski village. MIDA officials and other Stratos supporters have called the project a matter of national security.
“That was not a decision that was made by me or the Legislature,” Cox said. “In the future, those are decisions that should be made by us, so that we can do these types of things ahead of time to make sure people understand what’s actually happening out there. That did not happen, and it should happen.”
When he made his comments, Cox was hosting the final workshop in his “Energy Superabundance” initiative as chair of the Western Governors Association, part of a broader push that complements his “Operation Gigawatt” goal to more than double Utah’s energy production over the next decade.
Electricity use across the country has held relatively steady for decades, but a surge in demand for artificial intelligence computing and data centers is putting a strain on the electric grid. That’s left Western states scrambling to build new energy supplies.
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At the same time, public skepticism toward large data center developments appears to be growing, particularly over concerns involving water use, noise, energy costs, and pollution.
“It feels like the future is here,” Cox said during his opening remarks at the workshop. “It’s coming quicker than people asked for, and there are so many amazing things that can come from that future, and some pretty awful ones as well.”
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Cox has also pushed for faster permitting timelines for large energy and infrastructure projects, arguing that environmental review processes often take too long. “This whole idea of being rushed — I’m so tired of our country taking years to get stuff done,” he said in April. “It’s the dumbest thing ever. We think that taking time makes things better or safer. It absolutely does not.”
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Last week, Cox struck a more measured tone as criticism of the project continued to mount. “One of the things people are worried about, and rightfully so, is air quality,” he said in a brief interview as he left the workshop. “That’s a yearlong [permitting] process. … We’re not speeding those up. Those are really important, and we want to make sure that things are done the right way.”
Earlier this month, O’Leary, who was featured on the reality show “Shark Tank,” also seemed to suggest that renewables could help power the Stratos Project. He described other technological advances — such as turbines cooled with air rather than water — before turning to the natural gas power causing a stir.
“We can also put a percentage of the power generation through solar, wind, and batteries, because the battery technology is 10x more efficient than it was just five years ago,” O’Leary posted on X on May 5. “So that’s very helpful, because it makes the cost of energy lower.”
But he stopped short of fully endorsing renewables for his project.
Logan Mitchell, a climate scientist and analyst with Utah Clean Energy, calculated that a 9-gigawatt natural gas power plant will produce around 35 million metric tons of carbon emissions each year. By comparison, the entire state of Utah generates 55 million metric tons annually, according to the U.S. Energy Information Administration. So the Stratos Project could raise Utah’s emissions by about 64 percent.
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“That’s massive,” Mitchell said. But it could be even more, because his estimate didn’t account for “any additional methane leakage” from piping and using the natural gas, he said.
