An Ohio judge ruled EducationChoice Scholarships unconstitutional on three counts on June 24, delivering a blow to local private school attendees, specifically impacting the local Orthodox community and Jewish day schools.
Franklin County Court of Common Pleas Judge Jaiza Page sided with the plaintiff, a group of Ohio school districts, including the Cleveland Heights-University Heights School District and Vouchers Hurt Ohio.
Ohio Attorney General Dave Yost, the defendant, is looking to file an appeal within 30 days of the decision on behalf of the state to move the case through higher courts.
According to the Ohio Department of Education, the EdChoice Program, which began in 2005, provides students from designated public schools the opportunity to attend participating private schools. The program provides students who are entering kindergarten through 12th grade scholarship opportunities based on different eligibility criteria at an amount of $6,166 for grades kindergarten to eighth grade and $8,408 for grades ninth through 12th.
The case was brought to court on Jan. 4, 2022, when a coalition of about 300 Ohio school districts, including the plaintiffs, said vouchers violated two parts of the Ohio Constitution—to support a thorough and efficient public school system and the equal protection clause.
Count 1 of the lawsuit, which was granted in Page’s decision, argued that the creation of one or more systems of uncommon schools violates Article VI Section 2 of the Ohio Constitution “because EdChoice is a complex, state-run system that funds private schools, it amounts to an uncommon system of schools funded by the State,” according to the court document.
Under Article VI Section 2, any legislation that creates a second system of uncommon private schools, which the plaintiffs claimed EdChoice did, is not valid and, therefore, was granted by Page.
“The idea that EdChoice establishes scholarships, not a system of schools, and that it funds students, not private schools, is mere semantics,” Page wrote.
‘Whole second state-supported system’
Mark Wallach, an attorney with McCarthy, Lebit, Crystal & Liffman Co., LPA, who has represented the coalition since 2021, told the Cleveland Jewish News that this was ruled unconstitutional because the state is supporting a school system that is not open to everyone.
“Essentially, the state has set up a parallel school system in Ohio, where the Ohio Constitution says it’s only supposed to set up one, and it’s supposed to be a public school system that’s open to everyone,” he said. “Instead, what the legislature has done with the EdChoice program has basically set up a whole second state-supported system that isn’t for everyone.”
Page also granted count two, which accused the state of failure to secure a thorough and efficient system of common schools.
“In this count, the plaintiffs allege that the State Defendants’ failure to adequately fund public schooling by not fully funding the Fair School Funding Plan while simultaneously spending large sums on the EdChoice program has resulted in a system of common schools that is not thorough and efficient,” the ruling said.
According to Wallach, the EdChoice vouchers cost around $700 million this past year, which is also the difference between the money that the Ohio legislature made available for public schools versus what it should have made available under the Fair School Funding Plan.
The plaintiffs also argued that, by funding private schools that are permitted to discriminate based on a variety of criteria—religion, disability and sexual orientation—the result is that more white students will attend private schools using EdChoice vouchers and leave public school districts more segregated.
The state defendants argued the plaintiffs lacked evidence of actual segregation, and this count was ultimately denied, however, sparking a debate about the separation of church and state.
‘Devastating impact’
Yitz Frank, executive director of Agudath Israel of Ohio in South Euclid, stated that, as a liaison to the Ohio Department of Education and an advocate for Jewish day schools, he was disappointed but not surprised by the decision of the lower court.
“We’ve been working closely with attorneys representing both the state and the intervening defendants,” Frank told the CJN. “We were not very surprised that the district court judge ruled it unconstitutional. We were kind of expecting that. We don’t agree with her conclusions, and we think that a higher court will come to a different decision, but we were not surprised that this particular court ruled in that way.”
With an appeal now in place, Frank said he expects the case will advance to the Ohio Supreme Court. He said he suspects the lower courts will side with the plaintiffs, but is hopeful the higher court will side with EdChoice. If they don’t, it would be devastating for many families who rely on those scholarships, he said.
“If they were to rule it unconstitutional, every student on EdChoice would cease to get their scholarships, and that would obviously have a pretty devastating impact on many, many families,” Frank said. “There’s almost 150,000 students in Ohio that are participating in the scholarship program, so you can imagine that would have a pretty negative impact on those families that would branch through the whole state.”
Local Jewish day schools that are participants in the EdChoice program include the Hebrew Academy of Cleveland and Yeshiva Derech Hatorah, both in Cleveland Heights, Ohio; the Joseph and Florence Mandel Jewish Day School and Fuchs Mizrachi School, both in Beachwood, Ohio; and Gross Schechter Day School in Pepper Pike, Ohio.
Per-student funding
Jewish day schools aren’t the only schools that would be affected, as 78% of students in the Catholic Diocese of Cleveland also participated in the EdChoice program during the 2024-25 school year, according to Diocesan Superintendent Frank O’Linn.
A concern was raised by the Cleveland Heights-University Heights School District and its additional plaintiffs about the EdChoice Program creating a disparity in per-student funding. In the Cleveland Heights-University Heights School District, the state disburses approximately $2,590.25 per student, whereas EdChoice scholarship recipients receive $6,166 for students in kindergarten through eighth grade and $8,408 for students in grades nine through 12 in fiscal year 2024.
In 2015-16 and from 2018 to 2020, the district was notified of budget deficits resulting from EdChoice program deductions, which required it to place levies on the ballot in March and November of 2020. This forced them to lay off teachers and staff members, resulting in overcrowded classrooms and insufficient support for children with special education needs and those learning English as a second language, according to the court summary.
The Cleveland Heights-University Heights School District also alleged that it only received $1,700 from the Ohio Department of Education per pupil in core foundation funding for fiscal year 2022, compared to $11 million going to 2,000 students participating in the EdChoice program within the Cleveland Heights-University Heights School District’s geographical boundaries.
“Judge Page’s ruling is certainly vindicating for school districts like ours that have lost millions of dollars over the years due to the way EdChoice vouchers have been funded,” Malia Lewis, the Cleveland Heights-University Heights School District Board of Education president, told the CJN. “The court reiterated what we have been saying for years: the Ohio Constitution does not allow the state to fund private schools. Therefore, the EdChoice Voucher Program is not only unfair to our students, it is outright unconstitutional.”
“We look forward to the Vouchers Hurt Ohio case being heard at the appellate level and the Ohio Supreme Court. In the meantime, the CH-UH School District continues to advocate for local, state and federal funding models that ensure all children can access an equitable, high-quality public education,” she said.
In the courtroom, the state countered similar points from school districts, such as the Cleveland Heights-University Heights School District, by arguing that invalidating the EdChoice program would not provide public school districts with meaningful relief. That funding process will ultimately be explored further in Ohio courtrooms during the appeal process.
Local reactions and next steps
As the case prepares to move to a higher court, the EdChoice program will remain active during the appeal process. Therefore, no student currently on an EdChoice scholarship will be affected for the time being. In the meantime, parties on both sides have not shied away from sharing their opinions on Judge Page’s ruling.
“This is great news for students, teachers, educators and taxpayers,” former Chief Justice Eric Brown, who chairs the Vouchers Hurt Ohio steering committee, said in a news release. “Vouchers are hurting Ohio. We need to use tax dollars to fund one system of common schools for the common good that are open to all children.”
According to Wallach, he also plans to file an appeal on the claim that Page did not grant regarding the Equal Protection clause.
“The important thing to keep in mind is that the ruling is all based on the Ohio Constitution, adopted in 1851, which understood that public schools are an essential part of democracy,” he said. “You need an educated citizenry—and underfunding the public schools undermines that.”
A date has not been set while appeals are in the works. The case will be sent to the Court of Appeals in the 10th District in Columbus.
Reprinted with permission from Cleveland Jewish News.