The Upper Arlington City Schools Board of Education has decided to join a lawsuit seeking to eliminate Ohio’s EdChoice private school voucher program, even though Lt. Gov. Jon Husted told the group it would be a waste of money.
Ohio State Lt. Gov. Jon Husted put in his two cents in a letter he emailed to the school board as it was considering signing on to the lawsuit.
IN e-mail to the managementHusted stated that “the issue of school vouchers has long been litigated” and based on that U.S. Supreme Court case, “the EdChoice school voucher program was created and organized.”
“I know because I created it in 2005 when I served as Speaker of the Ohio House of Representatives,” he wrote.
A spokesman for Husted confirmed 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 heads to the Franklin County Court of Common Pleas, which, if the plaintiffs win, would completely eliminate Ohio’s school voucher program. Public school advocates who filed the lawsuit argue that state funding of private school vouchers creates an unequal education system that violates the state constitution’s requirements for an adequately 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 from currently benefiting from state vouchers as an educational choice for their children, many of whom attend other schools because of autism or other special needs.” “.
“If, after reading this email, you decide to finance this lawsuit, you will knowingly waste thousands of dollars in attorneys’ fees on a lawsuit that has no chance of success in an attempt to thwart the students and families who pay the property taxes that fund Upper Arlington schools.” wrote Husted.
The court case Husted cited was Zelman v. Simmons-Harrisan Ohio case that went to the nation’s highest court in 2002 to determine whether voucher programs were valid under the U.S. Constitution.
The 5-4 apportionment 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 included in the 1995 budget “as a test of the impact of school choice on academic performance ” – according to a case study of Case Western Reserve University.
The program targeted Cleveland because the program created under state law was intended to be used in any district requiring “oversight and operational management of the district by a state superintendent,” according to the ACLU of Ohio.
Ohio’s program was the first to include religious schools, which was one of the reasons the program was challenged in court.
Husted also quoted: A 1999 Ohio Supreme Court case in which a state court struck down a school voucher program, but Husted argued that it was “good law” because the voucher program did not violate the school funding provisions of the state constitution.
The state Supreme Court, in a 1999 case also involving the Cleveland City School District, ruled that the then-existing school voucher program “does not engage the state in religious indoctrination.”
The court disagreed with one of the “priorities” set forth in Ohio law that dictated the order in which registered private schools could admit students, with that priority allowing admission of students “whose parents are affiliated with any organization that provides financial support to the school.” .
This priority, the court said, “provides an incentive for parents who are desperate to remove their child from the Cleveland City School District to ‘modify their religious beliefs or practices’ in order to increase their chances of receiving a scholarship under the school voucher program” and was therefore unconstitutional, according to the majority in the 1999 decision.
It said the 1999 voucher program had a “secular legislative purpose, was not primarily intended to promote religion, and did not unduly associate government with religion.”
The state Supreme Court ultimately struck down the voucher program for another reason: because it violated the state constitution’s “single subject” provision, in which legislation can address only one issue. In this case, the voucher program was tied to 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 divided in its decision to join the lawsuit: three members urged the district to take action to protect the taxes of those who elected them, and two other members expressed concern about the time and money the lawsuit would require.
Board member Liz George Stump questioned “myths” about the goals of the EdChoice voucher program and its expansion to assist low-income students avoid low-performing districts, citing Ohio Department of Education and Workforce data in her argument in support of the lawsuit.
Data from ODEW shows that less than 8% of 2024 EdChoice UA voucher recipients are low-income, and that number only increases to 17% statewide.
“Watching our state devote this billion dollars to the voucher program threatens our state’s ability to meet constitutional requirements to fully fund our public school system,” Stump said at Tuesday’s board meeting. “Because the amount of voucher funds is not capped and is tied to public school funding levels, and as that pool shrinks from year to year, less (school district) money must be split in two.”
Board Vice President Lou Sauter and fellow board member Lori Trent voted against joining the lawsuit, hoping for another way to change how funds are distributed and support public education.
“Joining this lawsuit would be an unnecessary distraction from the hard work that lies ahead,” Sauter said.
Trent acknowledged that the majority of the state GOP, which generally supports EdChoice, is creating a political climate that “may not be conducive” to legislative change, but also said there is “too much conflicting information” to support joining the proceedings court proceedings, e.g. how long the suit will last and whether anything will change.
“With so many unknowns and the complexity of the situation, I am not in favor of joining the lawsuit,” Trent said.
The group Ohio Value Voters, which publicly released Husted’s letter, 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 enroll their children in the EdChoice scholarship program.”
The group’s website says it also supports the “Parents Bill of Rights” bill introduced by Ohio House Republicans that would require public schools to inform parents about “sexual content” in the curriculum, which has been likened to the “Don’t Tell the Gays” bill ” from Florida.
They have a separate website called “Protect Ohio’s Children” that includes an “indoctrination hotspot map” that aims to “shine daylight into the darkness of critical race theory, comprehensive sex education, and social emotional learning.”
The coalition supporting the lawsuit against the private voucher program issued its own statement on Husted’s letter, calling the information in it “misleading and erroneous.”
“We have worked for over three years to build a strong case challenging the constitutionality of EdChoice’s harmful private school voucher program, and we are prepared to go to trial on November 4 in Franklin County Judge Jaizy Page’s courtroom,” the statement read. Eric Brown, chairman of the committee, read controlling Vouchers Wholesale Ohio.
The group said the private school voucher issue cannot be considered “settled,” as Husted argued, because of the pending lawsuit in Franklin County.
Vouchers Wholesale Ohio also rejected Husted’s claim that it would impact people covered by the autism or special needs voucher, saying the lawsuit “only challenges the universal voucher program known as EdChoice.”
Application for dismissal
Most recently in this case, Ohio Attorney General Dave Yost, the state’s solicitor general, asked the judge to end the case with summary judgment, which would end the case before it could go to trial. Court documents state that a default judgment applies in a case “when the law is clear and there is no significant factual dispute.”
In his motion for summary judgment, Yost argued that challengers to the voucher program “have failed to show any constitutional violation that would prejudice them” and that the state supreme court “has already upheld vouchers and the broader school choice principle of per-pupil funding of perhaps follow students to different types of schools.”
“Plaintiffs’ claims are a repackaging and hybrid of claims arising from prior voucher cases, a charter school case, and a DeRolph school funding case,” Yost states in the motion.
The DeRolph case is a reference to numerous Ohio Supreme Court decisions in which the court found that the state did not properly finance the public school education system.
Yost argues that if challengers want to change Ohio’s education policy, they “must ask the People’s elected, Democratic representatives in the General Assembly – not the courts – to do so.”
“The Ohio Constitution allows for educational choice, and the Court should tell Ohio parents and students that it will not deprive them of that choice,” Yost concluded.
