School Choice Update

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The Good

A new study published by the Urban Institute reveals that students who attend private schools through a school choice program are more likely to graduate from college. The report, The Effects of Ohio’s EdChoice Voucher Program on College Enrollment and Graduation, joins a growing list of empirical studies that demonstrate school choice improves academic outcomes, increases parental satisfaction, and saves taxpayer money.

EdChoice students were more likely to enroll in college than students who remained in public school by a 64% to 48% margin. Additionally, enrollment for EdChoice students at a four-year college outpaced their public school counterparts: 45% to 30%. Longer participation in the program yielded even greater benefits—students who remained there for at least four years were 44% more likely to enroll in college than their public school peers.

Groups that benefited most from EdChoice were blacks, boys, students who experienced long-term childhood poverty, and students with below-median test scores before leaving public school. The college enrollment rate among black scholarship recipients increased by 18%, compared to 13% for white students. Students who spent more than three-quarters of their lives in poverty saw their rate of college attendance increase by 17%, seven points higher than students from less impoverished backgrounds.

In other good news, Indiana lawmakers lifted the income cap for the Indiana Choice Scholarship program in April, so that by the 2026-2027 school year, any child in the state may receive an annual voucher of at least $6,200.

Also, on May 3, Texas Gov. Greg Abbott signed SB2 into law, establishing the state’s first-ever school choice program: an education savings account (ESA) with universal eligibility.

Under this law, approximately 90,000 students across Texas can potentially access flexible funds for private school tuition, tutoring, special education services, homeschool expenses, and other educational expenses. As demand grows, the program is likely to expand to include any student whose family chooses to enroll.

Overall, there are now 76 private school choice programs in 35 states, plus Washington, D.C., and Puerto Rico, with 18 states offering universal choice. In total, 45% of students nationwide are eligible to participate in a private school choice program, and over 1.2 million students partake in one.

The Bad

On April 21, a district Court judge in Utah ruled that the state’s school voucher program was unconstitutional following a nearly year-long lawsuit filed by the state teachers’ union. The Utah Education Association sued the state last year, arguing that the Utah Fits All Scholarship Program violated the constitution by diverting tax money to private schools that aren’t free, open to all students, and supervised by the state board of education.

The Utah Legislature established the program in 2023, which provides up to $8,000 in state income tax funds to eligible students through scholarship accounts to cover the costs of private schools.

The judge ruled that the state legislature cannot create schools and programs that are not “open to all the children of Utah” or “free from sectarian control,” echoing the Utah Education Association’s argument that it diverts funding from public schools.

The judge’s bizarre ruling misses the point—the program is open to all Utah families, and any family can apply.

It also doesn’t defund public education. The program operates as an ESA, allocating a portion of existing per-pupil funding to families instead of directly to private or religious schools. The remainder of the funds go back to students who remain in public schools.

The program enabled a Utah parent to receive $8,000 each, approximately 84% of the state’s per-pupil funding of $9,552. This meant more money for fewer students who choose to remain in public schools. It was a win-win for every child, regardless of which path their family chose.

The Controversial

As I recently wrote, the U.S. Supreme Court will rule on Oklahoma Statewide Charter School Board v. Drummond, which addresses whether the St. Isidore of Seville Virtual Charter School should be allowed in Oklahoma. The Archdiocese of Oklahoma City and the Diocese of Tulsa had won approval for the school from the state charter board.

All the usual suspects have trotted out the typical “separation of church and state” rhetoric, but in reality, billions of taxpayer dollars are allocated to private schools, many of which are religious, in the form of vouchers, and the U.S. Supreme Court has weighed in on this issue. In Espinoza v. Montana (2020), SCOTUS endorsed a state tax credit program that pays for students to attend religious schools.

Additionally, the Supreme Court’s Carson v. Makin decision in 2022 centered on Maine’s town tuition law, which permits parents residing in districts that do not operate elementary or secondary schools to send their children to public or private schools in other parts of the state, or even outside the state, using funds provided by the child’s home district. SCOTUS ruled that if a state subsidizes private education, it cannot disqualify religious schools.

If religious schools are constitutionally eligible for state funding in the Maine program, how could SCOTUS deny direct state funding to a religious charter school?

The Oklahoma case does have some surprising foes, however.

Starlee Coleman, president of the National Alliance for Public Charter Schools, asserts, “Many of the states that are likely to welcome religious charter schools already allow parents to use taxpayer funds at private religious schools. There is simply no need to upend the operational foundation that has allowed charter schools to become the national school-choice strategy. Finding that charters are private schools would have devastating consequences for millions of children. That’s the wrecking ball to worry about.”

Clint Bolick, justice of the Arizona Supreme Court and a long-time school choice advocate, also maintains that charters are public schools. “If the Court perceives that (charters) are public schools, it would require a huge jump in jurisprudence to say they can be religious. There is virtually no existing case law that could be cited for that proposition.”

Michael Petrilli, president of the conservative-leaning Thomas B. Fordham Institute, writes that federal and state law and practice for thirty years “have rested on the assertion that charter schools are, in fact, public schools, and therefore state actors.”

The legal issue before the Court isn’t concerned with traditional public schools, which are operated by school districts. They are unquestionably government actors and therefore must be secular. Charter schools, while taxpayer-funded, are privately operated and designed entities, freed from government control.

The Supreme Court heard the Oklahoma charter case on April 30, and not surprisingly, the Justices were divided. Importantly, Justice Amy Coney Barrett recused herself from the case. Although she didn’t give a reason, Barrett is close friends with Notre Dame Law School professor Nicole Stelle Garnett, an early legal adviser to the Catholic Church in Oklahoma. As a result, the outcome now appears to hinge on the vote of Chief Justice John Roberts, who asked probing questions of both sides during the hearing but didn’t clarify his position.

To be continued.

Larry Sand, a retired 28-year classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues.