Is Utah’s “school choice” program unconstitutional? A year after Utah’s largest teacher union sued the state over that question, a 3rd District Court judge ruled that the program known as “Utah Fits All” violates the state constitution.
The Utah Education Association had argued that the Utah Fits All program violated articles III and X of the Utah Constitution because it was a “program within the public education system that is not free and is not ‘open to all the children of Utah,’” and diverts constitutionally appropriated funds from already underfunded public schools.
The Utah Fits All program was established in 2023, providing up to $8,000 in scholarships per eligible student to cover private schools, or homeschool curriculums. In 2024, the Utah Legislature doubled the initial appropriation of $42.5 million in ongoing income tax revenue by adding an additional $40 million. And this year, that number grew $40 million more.
The money was enough to pay for the vouchers of 10,000 students — about 80% of them are homeschooled. But, with a waitlist of 17,000 and other irregularities in the expenses reported by parents, the Legislature this year approved a series of reforms, reducing scholarship amounts of homeschooled students to $4,000 a year for students ages 5 to 11 and $6,000 for ages 12 to 18. Those attending private schools can still receive $8,000 a year.
Lawmakers also prohibited some expenses like ski passes, furniture and musical instruments, and established a cap of 20% per scholarship for extracurriculars and physical education, an unpopular move among Utah Fits All parents.
In the decision, the court explained why its interpretation of the constitution sided with the UEA, especially highlighting a past Utah Supreme Court ruling that decided that the Legislature’s authority in establishing and maintaining the public education system is limited. “The legislature, for instance, cannot establish schools and programs that are not open to all the children of Utah or free from sectarian control,” the court wrote then.
The UEA celebrated the decision, describing it as a significant victory for public education.
“This decision protects the integrity of public education, ensuring critical funding remains in schools that serve 90% of Utah’s children and prioritize equitable, inclusive opportunities for every student to succeed,” the union wrote in a statement. “It reinforces the belief that public education is a cornerstone of opportunity for all, regardless of background or circumstance.”
However, Republican leaders in the state lamented the decision and said they intended to continue the legal fight. House Speaker Mike Schultz, R-Hooper, called the ruling “a devastating setback for Utah families.”
“We’re unwavering in our commitment to ensuring that every Utah student, irrespective of zip code or income, has equal access to the educational opportunities they rightfully deserve,” Schultz said in a statement. “We will vigorously pursue every avenue, including the Utah Supreme Court, to overturn this decision and restore hope for Utah’s students and families.”
Senate President Stuart Adams, R-Layton, and Gov. Spencer Cox expressed the same disappointment, with Cox adding in a social media post that the state “will be reviewing the ruling with our attorneys and preparing to appeal.”
However, the strongest reaction came from Rep. Candice Pierucci, R-Herriman, who sponsored the legislation that created Utah Fits All. She called the decision “judicial activism.”
“It is not the job of judiciary to set policy on the bench and infuse personal opinion and ideology into their decisions. We are not done fighting this fight and will appeal this decision to the Utah Supreme Court,” she wrote in a statement.
Here’s why the court said the school choice program is unconstitutional:
Utah’s Education Article
“Utah’s Education Article does more than simply articulate a policy or aspiration, leaving the legislature with plenary authority to determine how best to accomplish it. It is a direct command to the legislature to perform a single duty: establish and maintain ‘the state’s education systems,’” Judge Laura Scott wrote in the decision. That includes a public education system open to all children of the state and a higher education system “free from sectarian control.”
The state had rejected that argument stating that the program “is expressly not part of the public education system.”
However, the court said that the elementary and secondary schools funded through the program are not open to all, since all of them have some sort of application process with assessments, interviews or tests to determine if the student is “fit.”
While private schools are prohibited from discriminating against students based on their race, color and national origin, “they are not prohibited from discriminating against students based on gender, religion, socio-economic status, disability, sexual orientation or political affiliation.”
Not only can schools deny admission because of these factors, the opinion reads, it also divides children into groups or classes — children attending public schools and children attending private schools — and “provides additional benefits to private or homeschooled children that may not be available to children attending public school, such as funds for computers, test prep courses, private tutoring,” among others.
Amendment G
In 2020 Utahns voted to pass Amendment G, which changed the Utah Constitution to allow intangible property or income tax revenue to support systems of higher education “and to support children and to support individuals with disabilities.”
While Utah GOP leaders said that the amendment allows them to run programs that are designed to support children, the UEA rejected that argument, stating that Amendment G was meant to allow using income tax to fund certain mental health and disability programs, which according to the court, is what the voters who approved the amendment understood with the language.
That interpretation of Amendment G could also be attributed to the legislative debates on it.
“No legislator ever mentioned ‘school choice’ or vouchers for children who do not have disabilities. No legislator ever suggested that Amendment G could be used to divert income tax revenue from public schools to private schools,” according to the opinion. The debates, instead, highlighted that the ballot question “would address budgetary constraints by allowing income tax revenue to fund certain social services programs” and “would strengthen public education funding.”