Judge Wrong to Strike it Down

On April 18, a state trial judge invalidated Utah Fits All, an education-savings-account program that gives students up to $8,000 to spend on a range of K-12 educational expenses, including private school tuition. Judge Laura Scott agreed with the teachers’ union and other plaintiffs that the program violates a provision in Utah’s constitution that requires the state to maintain a system of “public education, which shall be open to all children of the state . . . [and] free from sectarian control.”

While acknowledging that Utah has a public school system, Scott rejected the argument that the state could fund educational alternatives outside that system. She concluded that the constitutional mandate for public education is a “ceiling, not a floor.” To support this view, she invoked the legal maxim expressio unius est exclusio alterius—the expression of one thing implies the exclusion of others. “This clear expression of one duty—coupled with the absence of any general duty to provide for the education or intellectual improvement of Utahns—impliedly restricts the legislature from creating a publicly funded . . . education program outside of the public school system,” she wrote.

The decision is outrageous on many levels. Most notably, the U.S. Supreme Court has held that state constitutional “Blaine Amendments,” which bar public funding for so-called “sectarian schools,” are unenforceable. In Espinoza v. Montana (2020), the Court ruled that invalidating a school-choice program to prevent public funds from reaching religious schools violated the First Amendment’s Free Exercise Clause. Yet Judge Scott appears to have done just that in striking down the Utah Fits All program.

With Blaine Amendments off the table (at least outside of Scott’s courtroom), opponents of religious schools are left with various state constitutional arguments, all weak, against parental choice. Chief among them is the contention that constitutional provisions in every state requiring the operation of public schools preclude governments from providing any other educational options for children. As Judge Scott’s opinion acknowledged, this argument—routinely raised in litigation challenging school-choice programs for decades—has been rejected by all but one state supreme court. And the lone outlier, the Florida Supreme Court’s wrongheaded 2006 decision in Bush v. Holmes, has since been rendered a dead letter. In fact, a larger share of students—nearly 13 percent of K-12 aged children—utilize private school choice in Florida than in any other state.

There is a reason that state high courts routinely reject this claim: it’s a bad argument. Choice initiatives like Utah Fits All are offered in addition to the constitutionally mandated system of public schools, which remain secular and open to all. What’s more, many states, including Utah, have paired parental choice legislation with extra funding for public schools. But that has not stopped opponents of educational freedom from advancing the expressio unius argument in court whenever a new parental choice program comes along, or lower-court judges like Scott from embracing it to block these programs’ implementation. Though Judge Scott declined to enjoin the program from operating pending further appellate review, her opinion came less than a week before the end of the application window for the 2025–26 school year, casting doubt on the state’s ability to grant new scholarships and creating uncertainty for the 10,000 families already participating in the program.

Opponents of school choice not only target new initiatives like Utah’s but also seek to repeal other states’ longstanding programs. In Ohio, for example, some 100 public school districts have challenged the state’s voucher programs, which serve over 100,000 children, on the grounds that they drain resources from public schools in violation of the state’s public education obligations. Though the Ohio Supreme Court previously rejected this argument, a judge has refused for more than two years to dismiss the case and looks ready to conduct a trial on the programs’ economic effects on public schools.

Such pushback comes amid a public education revolution. Thirty-four states, the District of Columbia, and Puerto Rico have at least one private-school-choice program. Since 2020, 13 states have extended school-choice eligibility to all K-12 students. Today, 40 percent of U.S. students are eligible to participate in a such initiatives, and just over 1.25 million do. On Saturday, May 3, Texas governor Greg Abbott signed legislation creating a universal education-savings-account program, and when it launches in the 2026–27 school year, more than half of all U.S. children will be eligible for initiatives that allow them to use public funds for private educational options.

For too long, public schools enjoyed a virtual monopoly over K-12 education in the United States. Only parents with the financial means could choose their children’s schools, either by moving to high-performing districts or paying private tuition.

Research demonstrates that ending this monopoly would be good for students. A recent Urban Institute study on the EdChoice voucher program in Ohio, for example, found that students participating in the program were 15 percent more likely to attend college, and 9 percent more likely to graduate college, than similar public school students. The program also led to an 18 percent boost in college enrollment rates among black students, and a 17 percent rise among poor students, compared with 13 percent and 7 percent increases among white students and less impoverished students, respectively. Other evidence suggests that school-choice programs generate healthy competition between schools, improving the performance of students who remain in public schools.

Judge Scott got it exactly backward. State constitutional provisions requiring public schools impose a floor, not a ceiling, on the educational options that states can make available for kids. Judges should not enable teachers’ unions to wield these provisions to prevent states from embracing educational pluralism and empowering parents to choose the schools, public or private, that best serve their children. The Utah Supreme Court should act quickly to right this wrong—and other state courts should follow suit.

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