Another Ohio school district joins EdChoice lawsuit, despite Lt. Gov.’s attempt to dissuade

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The Upper Arlington City Schools Board of Education chose to join a lawsuit seeking to eliminate Ohio’s EdChoice private school voucher program, despite Lt. Gov. Jon Husted telling the group it would be a waste of money.

Ohio Lt. Gov. Jon Husted threw in his two cents in a letter emailed to the school board as they considered signing on to the suit.

In the email to the board, Husted said the “case of school vouchers was long ago litigated,” and on the basis of that U.S. Supreme Court case, the EdChoice private school voucher program was “created and structured.”

“I know because I created it in 2005 when I served as Speaker of the Ohio House of Representatives,” he wrote.

A spokesperson for Husted confirmed on Tuesday that the statement, which was shared by the conservative advocacy group Ohio Value Voters, was indeed written by him.

The letter comes as a lawsuit works its way through the Franklin County Court of Common Pleas that would, if plaintiffs are successful, eliminate the private school voucher program in Ohio entirely. Public school advocates who filed the lawsuit argue state funding of the private school vouchers creates an unequal system of education that violates the state constitution’s requirements for a properly supported public education system.

Husted’s letter

Husted said joining the lawsuit would “serve as an attempt to deny 348 Upper Arlington families and students currently using a state voucher as their choice of education for their children, many of which are attending other schools because of autism or other special needs.”

“If after reading this email, you choose to fund this lawsuit, you will knowingly be wasting thousands of dollars on attorney fees for a lawsuit that has no chance of succeeding in an attempt to thwart the will of students and families who pay the property taxes that fund Upper Arlington schools,” Husted wrote.

A court case cited by Husted was Zelman v. Simmons-Harris, an Ohio case that made its way to the nation’s highest court in 2002 in an attempt to decide whether voucher programs were valid under the U.S. Constitution.

The split (5-4) decision upheld a state law that allowed Cleveland students to attend public or private schools through the Cleveland Scholarship and Tutoring Program, which the legislature attached to the 1995 budget “as part of a test of the impact of school choice on academic performance,” according to a Case Western Reserve University breakdown of the case.

Cleveland was the target of the program because the program built under state law was to be used on any district that required “supervision and operational management of the district by the state superintendent,” according to the ACLU of Ohio.

Ohio’s program was the first to include religious schools, which was part of the reason the program was challenged in court.

Husted also cited a 1999 Ohio Supreme Court case, in which the state court struck down the school voucher program, but Husted argued it was “good law,” in that the voucher program did not violate provisions of the state constitution regarding school funding.

The state supreme court in the 1999 case, also involving the Cleveland City School District, ruled that the school voucher program that existed at that time “does not involve the state in religious indoctrination.”

The court disagreed with one of the “priorities” set forth in Ohio law to dictate the order in which registered private schools could admit students, a priority which allowed students “whose parents are affiliated with any organization that provides financial support to the school.”

That priority, the court ruled, “provides an incentive for parents desperate to get their child out of the Cleveland City School District to ‘modify their religious beliefs or practices’ in order to enhance their opportunity to receive a school voucher program scholarship,” and was therefore unconstitutional, according to the majority in the 1999 decision.

The voucher program in 1999 was found to have a “secular legislative purpose, does not have the primary effect of advancing religion, and does not excessively entangle government with religion.”

The state supreme court ended up striking down the voucher program for a different reason: a violation of the “one subject” provision of the state constitution, in which legislation can only pertain to one issue. In this case, the voucher program was tied into the state budget, which the supreme court found to be a violation of the state constitution.

For and against

The Upper Arlington Board of Education was split in their decision to join the lawsuit, with three of the members urging the district to push forward in order to protect the tax dollars of those who elected them, and two other members expressing concern about the time and money a lawsuit would take.

Board member Liz George Stump disputed “myths” about the aims of the EdChoice voucher program and its expansion to help low-income students avoid underperforming districts, citing Ohio Department of Education and Workforce data in her argument in support of the lawsuit.

Data from the ODEW show less than 8% of UA’s 2024 voucher recipients for EdChoice are considered low-income, a number that only rises to 17% statewide.

“As we watch our state funnel this billion dollars into the voucher program, that threatens our state’s ability to meet its constitutional requirement to fully fund our system of common schools,” Stump said in a Tuesday meeting of the board. “Because that voucher money is uncapped and it is tied to the level of public school funding, and as that pot shrinks year over year, which it is, that’s less money (the school district) has to get split two places.”

Board VP Lou Sauter and fellow member Lori Trent voted against joining the lawsuit, hoping for a different way to change the way funding is distributed and public education is supported.

“Joining this lawsuit would be an unnecessary distraction from the hard work that we have ahead of us,” Sauter said.

Trent acknowledged that a GOP state supermajority who generally favors the EdChoice program creates a political climate that “may not be conducive” to legislative changes, but she also said there was “way too much conflicting information out there” to support joining the litigation, like how long the suit would last and whether things would change.

“With so many unknowns and the complexity of the the situation, I am not in support of joining the lawsuit at this time,” Trent said.

The group that shared Husted’s letter publicly, Ohio Value Voters, praised the lieutenant governor for supporting the voucher program. The group’s president, John Stover, said in a statement that families across the state “appreciate the opportunity to have their children enrolled in the EdChoice Scholarship program.”

The group’s website says they also support the “Parent’s Bill of Rights” legislation introduced by Ohio House Republicans to require public schools to inform parents about “sexuality content” in curriculum and which has been likened to Florida’s “Don’t Say Gay” bill.

They have a separate website called “Protect Ohio Children,” which includes an “indoctrination site map” with the goal of “putting daylight on the darkness of critical race theory, comprehensive sex education and social emotional learning.”

A coalition supporting the lawsuit against the private voucher program released its own statement about Husted’s letter, calling the information in it “misleading and wrong.”

“We have worked for more than three years to build a solid case challenging the constitutionality of the harmful EdChoice private school voucher program, and we are prepared to go to trial on Nov. 4 in Franklin County Judge Jaiza Page’s courtroom,” a statement from Eric Brown, chairman of Vouchers Hurt Ohio’s steering committee read.

The group said the issue of private school vouchers can not be considered “settled,” as Husted argued, because of the active lawsuit in Franklin County.

Vouchers Hurt Ohio also pushed back on Husted’s claim that those on a voucher for autism or special needs would be impacted, saying the lawsuit “challenges only the universal voucher program known as EdChoice.”

Motion for dismissal

Most recently in the case, Ohio Attorney General Dave Yost, the state’s legal counsel, asked the judge to end the case via summary judgment,  which would end the case before it could go to trial. A summary judgment is used in a case “when the law is clear and no factual dispute is material,” according to court documents.

In his motion for a summary judgment, Yost argued that the challengers of the voucher program “have not shown any constitutional violation that harms them” and that the state supreme court “has already upheld vouchers and the broader school-choice principle that per-pupil funding may follow students to various types of schools.”

“Plaintiffs’ claims are a repackaging and hybrid of claims under the previous voucher cases, the charter-school case, and the DeRolph school-funding case,” the motion by Yost states.

The DeRolph case is a reference to the multiple Ohio Supreme Court decisions in which the court found the state did not properly fund its public school education system.

If challengers want to change the policies on education in Ohio, Yost argues “they need to ask the People’s elected, democratic representatives in the General Assembly – not the courts – to do that.”

“Ohio’s Constitution allows educational choice, and this Court should tell Ohio’s parents and students that it will not take their choices away,” Yost concluded.

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