The court has labeled school choice a misnomer, and the Ohio Supreme Court may ultimately determine the fate of the matter.
Ohio’s approach to school choice has faced a major blow. On Thursday, the 10th District Court of Appeals, a panel of the state’s appellate judges, unanimously decided that the Educational Choice Scholarship program, known as EdChoice, is unconstitutional.
Vouchers Hurt Ohio (VHO), a coalition representing public school districts, joined forces in 2022 to challenge EdChoice, a program that taps public funds to provide private-school scholarships for K–12 students. Since 2005, EdChoice’s “Traditional Plan” has offered annual awards up to $6,166 for elementary and middle school students and up to $8,408 for high school students. The state’s 2013 “Expansion Program” mirrors the Traditional Plan in its scholarship caps, but adjusts the amount based on family income, according to EdChoice, a nonprofit focused on educational freedom. The organization maintains that the program serves more than 100,000 Ohio families.
Opponents argue that EdChoice drains resources from the public-school system, leaving Ohio students with fewer funds. Its website asserts that private-school vouchers create a framework of state-funded discrimination and that school choice is a myth. Notably, the Court of Appeals for Ohio’s 10th District largely agreed with that perspective.
The court anchored its decision in Article VI, Section 2 of the Ohio Constitution, which requires the state to ensure a “thorough and efficient system of common schools.”
The panel found that the EdChoice voucher program contravenes this obligation by supporting a “competing system of unusual schools.” Writing for the court, Judge David Leland went further, arguing that EdChoice schools effectively rob families of real choice. He noted private schools’ admission procedures and urban concentration, and he described the defendants’ appeal to “choice” as a “fundamental misnomer,” since the power to admit students rests with the schools, not with the families.
Keith Neely, an attorney for the Institute for Justice who represents EdChoice families in the case, contends that the program directs funding to families rather than to a rival school system.
He also challenges the court’s interpretation that the state’s duty to fund public schools implicitly bars funding for other forms of education. “I think that’s just fundamentally wrong as a matter of constitutional interpretation and as a matter of public understanding,” he told Reason.
The court “appeared to accept the idea that any dollar spent on other educational programs, like scholarships, is a dollar that could have gone to public schools instead, but that is not how budgeting works,” he says.
Neely argues that funding for public education is separate from the EdChoice scholarship program and that every funding choice involves tradeoffs. If the court concludes that EdChoice violates the state’s obligation to fund public schools, what prevents it from reaching the same conclusion about other programs, such as the Jon Peterson Special Needs Scholarship or the Cleveland Scholarship program, which provides private-school tuition aid for K–12 students in the Cleveland Municipal School District?
Neely also cites Simmons-Harris v. Goff (1999), where the Ohio Supreme Court partially reversed a lower court and ruled that school choice was constitutional under the same public-education clause. The court struck down the Cleveland scholarship program in that instance for being “improperly enacted by the legislature,” according to the Institute for Justice. The Legislature later reenacted the program, however.
The families participating in EdChoice—as well as the state’s attorney general—intend to appeal to the Ohio Supreme Court, and Neely remains hopeful that history will repeat itself. He told Reason, “When you read the Constitution and compare it with what the court said in Simmons-Harris, I believe the Ohio Supreme Court will conclude that programs such as the Educational Choice Scholarship program are constitutional.” Families will continue to receive their scholarships while the case moves forward.
This dispute is one front in a broader national clash over school choice. A recent Reason Foundation report, issued by the nonprofit that publishes Reason, found that eight out of ten public-school students live in states with “weak or ineffective open-enrollment laws.” These laws let students transfer to public schools outside their assigned district if space exists. Several states are also resisting the Education Freedom Tax Credit, a federal initiative offering a dollar-for-dollar tax refund for donations to K–12 scholarship programs.
The court’s ruling mirrors a broader argument advanced by opponents: that educational dollars spent on anything other than traditional public schools take resources away from ordinary students. For years, policymakers have banked on that premise, yet measurable gains in student achievement remain elusive. The real myth, some contend, is not school choice itself but the belief that granting families more options inevitably harms students’ education.
