Despite being ruled unconstitutional, a judge will allow the Utah Fits All Scholarship to keep operating while the state appeals the decision.
Third District Judge Laura Scott ruled April 18 that the program, which is commonly referred to as a voucher program, was unconstitutional. The challenge came from the Utah Education Association, the state’s largest teachers’ union. State elected leaders quickly indicated that they intended to appeal to the Utah Supreme Court.
During an April 23 status hearing, Scott asked lawyers for the defendants and plaintiffs whether they wanted her to enforce her earlier decision and enter an injunction to halt the program, or let it continue operating until the Utah Supreme Court ruled on the appeal.
Both sides were fine with keeping it going.
Scott said she would not enter an injunction, meaning the Utah Fits All Scholarship will operate as normal. That means families with a student scholarship can keep using the money. And families can also apply to get a scholarship for next year.
Lawmakers created the program in 2023. Every year since then, they have increased the money allocated toward the program, which now sits at $100 million. Earlier this year, lawmakers made changes to limit how much funding could be spent on extracurriculars and decrease how much money a homeschooled student could receive.
The outcome of the appeal could also impact how much teachers are paid. In 2023, lawmakers gave teachers a pay raise that was contingent on the Utah Fits All Scholarship being “funded and in effect.” If it's not running, the 2023 bill stipulates that the raise be lowered.
In a statement after the status hearing, Utah Education Association President Renée Pinkney said they remained “confident that the decision declaring the Utah Fits All voucher program unconstitutional will be upheld on appeal.”
The Utah Constitution, under Article X, requires the Legislature to establish and maintain a public education system that is “open to all children of the state” and “free from sectarian control.” Scott ruled the Legislature did not have the authority to create publicly-funded education programs that run afoul of that requirement. Scott also found that, under the constitution, the legislature could not spend income tax dollars on a school voucher program for children without disabilities.
Pinkney said it agreed to let the program keep running because “this approach prevents immediate disruption for private and homeschool students and ensures public school educators continue receiving the pay increase tied to the program.”
Robyn Bagley, the executive director of Utah Education Fits All, a group that advocates for the program, said “While we respectfully disagree with Judge Scott’s partial ruling against this scholarship, we are grateful that families can continue forward in their education journey, uninterrupted, until such time the Utah Supreme Court can rule.”
In a social media post, Utah Parents United President Corrine Johnson said “parents, you can all breathe a deep sigh of relief and you can continue to move forward with all of your amazing education plans for your kids.” Johnson added that she was confident the state would be successful in appealing the decision.
Families have until May 1 to apply for the Utah Fits All Scholarship for the 2025-2026 school year.
In her initial ruling, Scott did not address two claims she said were “moot” based on her rulings on two other claims. Those claims focused on the constitutionality of allowing a private entity to oversee the program. Per the state’s request, Scott said she’ll rule on those claims in a final ruling within a couple of weeks.
Why Scott said the program is unconstitutional
Scott’s ruling said the Legislature did not have the authority to create additional publicly-funded education programs that run afoul of the “open” and “free” requirement in Article X. Utah’s constitution imposes a single, straightforward duty on the Legislature for education. That duty is a ceiling of its power, not a floor.
While private schools and providers that accept Utah Fits All money can not discriminate based on race, color or national origin, Scott wrote they can discriminate based on religion, sex, sexual orientation, gender identity and disability status. Additionally, while public schools have to allow all students, private schools have “some form of an application process, which may include assessments, interviews, or tests to determine if the student is the right ‘fit.’”
In light of that, Scott wrote, “the Program is not ‘open to all children of the state.’”
Voucher recipients, Scott wrote, receive benefits that may not be available to children attending public school, “such as funds for computers, test prep courses, private tutoring, summer camps, extracurricular activities such as music and dance lessons and sports, ride share fees, and other ‘educational experiences.’”
While the state argued that Utah Fits All was not a part of the public education system, because it is a “legislatively created, publicly funded education program aimed at elementary and secondary students,” Scott concluded it still needed to satisfy Article X.
The funding of the program also violated Article XIII of the Utah Constitution, the ruling stated. That’s a constitutional provision that limits the use of income tax funds to public education and higher education, as well as services for children and people with disabilities.
The passage of Amendment G in 2020 added services for children to the list of acceptable uses. The state argued this gave them the authority to use income tax funds for the Utah Fits All Scholarship.
That’s not how voters would have likely understood it when they passed it, Scott wrote. When Amendment G was debated and discussed leading up to the election, vouchers for children without disabilities were never brought up.
Voters, the judge said, were never told this constitutional change was about “school choice.” So, the “original public meaning” of the amendment was that it was a narrow expansion of income tax funds.
“Because the program is neither a social services program nor a program limited to supporting children with disabilities, the court concludes that the program is also unconstitutional under Article XIII.”
