Issues Framing Utah’s School Choice Debate

INTRODUCTION
Since 1990, some states have allowed students to attend private schools at public expense. Most of the early initiatives were confined to students who were low-income, had special needs, or attended low-performing schools. In less than a decade, the scope of these programs has expanded significantly. A campaign encouraged by school choice advocates and funded by deep-pocket donors found a receptive audience in parents frustrated with the closure of public schools during the pandemic or unhappy with allegedly “woke” influences in public schools. The result of this expansion of private school choice was a dramatic rethinking of who should be able to receive public financial support. Today, more than 28 states have private school choice programs; of those, 13, including Utah, have laws allowing any student, regardless of income or need, to apply for public funds to subsidize their private schooling, including religious schools, micro-schools, and homeschooling services.

A 2002 landmark 5-4 Supreme Court decision in Zelman v. Simmons-Harris upheld an Ohio law providing vouchers to low-income students in Cleveland’s failing schools. The Court held that the parental choice to allow a child to attend a parochial school did not violate the establishment clause of the 1st Amendment because it was the voluntary choice of the parents, not the state. The four dissenting judges called the ruling “potentially tragic” and a “major devaluation of the establishment clause.” A recent case involving tax credits to parents who educate their children in religious schools amplified the majority opinion in Zelman.

A BRIEF HISTORY OF UTAH’S VOUCHER JOURNEY

In 2007, Utah’s Republican lawmakers passed what would have been the nation’s most comprehensive voucher law, HB148, which narrowly made it through the House by a single vote. The measure generated strong opposition from parents, teachers and public school advocates. Groups rallied to put a referendum on the ballot to rescind this effort; they won with more than 62% of Utah voters siding with the repeal.  When asked directly about vouchers recently, voters in other states have refused them.

Fast forward to 2023, with a well-organized state and national movement supporting school choice, the Utah Legislature inaugurated a voucher program featuring a diversion of taxpayer dollars into the Utah Fits All (UFA) scholarship program. The new bill, HB215, “Funding for Teacher Salaries and Optional Educational Opportunities” unnecessarily tied teacher pay raises to a voucher program. Unlike traditional scholarships, these scholarships are available to all K-12 students in Utah regardless of students’ academic histories. The scholarships are funded through the state budget and typically cover expenses such as tuition, exam fees, tutoring, homeschool services, and school supplies. Eligible families receive scholarships up to $8,000 per child per year.  These public dollars are deposited into an Education Savings Account (ESA) that families can draw from for approved educational expenses. A Colorado nonprofit, the Alliance for Choice in Education was selected to administer the program.

UFA advocates argue that this convoluted route for tax dollars avoids the unconstitutionality of the government “directly” putting tax dollars into private religious schools. Utah’s State Constitution Article X, Section 9 reads: “Neither the State of Utah nor its political subdivisions may make any appropriation for the direct support of any school or educational institution controlled by any religious organization.”

DOES UFA VIOLATE THE UTAH CONSTITUTION?

Last year, the Utah Education Association (UEA) filed a lawsuit challenging the constitutionality of the Utah Fits All Scholarship program. The Utah Constitution clearly states that public education is to be overseen by the Utah State Board of Education (USBE). Yet UFA policy explicitly states that a nonprofit management company will be contracted to oversee the UFA Scholarship program. The state constitution states that public education is to be free and open to all. Yet, Utah legislators allocated $82.5 million of public funds that are not free and open to all. Private schools are allowed to enroll and reject students according to their own edicts. Moreover, the meaning of a 2020 amendment to the Utah Constitution allowing public education funds “to support children” was well understood at the time to be limited to public social services programs, i.e., not extended to private educational programs. UEA stated “This lawsuit is a decisive and necessary step in defending the integrity of our public education system.” A decision is pending in state district court.

UTAH’S PUBLIC EDUCATION OFFERS CHOICES

Proclaiming it is time to end the tyranny of an outdated “one-size-fits-all” monolith, choice advocates want the freedom to deploy tax money to shop for education opportunities for their child’s and their family’s unique needs. It is worth noting, however, that Utah is one of only a few states with open enrollment. Utah law allows for students to attend a school other than their neighborhood school both within or outside their district boundaries, subject to various limitations such as space availability.

Additional Utah Public Choice Options

• Charter schools are all public and are tuition-free, open to all students, and offer freedom to innovate with curriculum and learning. Their vision and mission are unique to their charter. According to the National Alliance for Public Charter Schools, in 2022-23 there were 139 Utah charter schools attended by well over 78,000 Utah students.

• Public Magnet schools teach a specific learning track emphasizing, for example, foreign language, gifted, engineering, math, science, or performing arts programs.   Charter and magnet schools participate in state testing and are held to the same    standards as Utah’s traditional public school counterparts.

• Many public school services are available on a hybrid basis to homeschoolers including, sports, extra-curricular, and some performance art programs.

FOUR ISSUES CRITICAL TO UNDERSTANDING SCHOOL CHOICE

1.  Diversion of Public Funds

Voucher programs divert funds needed for many underfunded and unmet needs including:

• Social services—hire enough school psychologists to meet national standards

• Medical support—hire a school nurse for every school

• Mental Health—hire a counselor for every school over 650 students

• Special Education--hire more special education teachers, physical therapists, and speech pathologists

• Licensed teachers and teachers with specialized credentials—hire enough to meet needs in underserved Utah communities

The “Utah Fits All” program has approved over 700 providers (schools and vendors). This Amazon-like approach to privatization of public funds should concern every Utahn. Furthermore, students in rural districts will have limited ability to use UFA funds as private school choices are often not available beyond the Wasatch Front. 

2.  Lack of Accountability

Private schools, including religious schools, micro-schools, and homeschools receiving public funds (UFA scholarship funds) are not held to the same financial transparency and accountability requirements as public schools. Removing public education funds from public oversight adds to the tension between choice advocates on the one hand and public school supporters on the other. Under the law that created the scholarship program, the Utah State Board of Education (USBE) was required to hire a program manager to distribute funds and oversee the program. Alliance for Choice in Education (ACE), a non-profit organization, was selected and received a $9 million contract from the USBE after the bidding period closed. The legislation does not provide for USBE oversight of the funds. ACE isn’t legally obligated to report more than a minimum of information to USBE or the general public, although starting September 2025, it is required to give the Legislature’s Education Interim Committee an annual financial report that that includes such generic matters as:

• The amount of tuition and fees qualifying providers charged for the current year (and ultimately 2 previous years)

• The amount of goods paid for with scholarship funds the previous year

• Administrative costs of the program

Academic accountability is equally minimal and nontransparent. By design, no curriculum, graduation, or teacher qualifications are required. Satisfaction with student progress is entirely up to the parents. There is no required norm-referenced assessment of student performance on statewide tests, although parents may request one. The parent must provide ACE with an annual portfolio of the student’s educational opportunities and achievements, but there is no evaluation of the portfolio and no disclosure of its contents to anyone but ACE, the student, and the parent. There is no way to measure the effectiveness of parental choices compared to those of the public school.

3.  Discrimination and Exclusion

Proponents of vouchers previously claimed that vouchers enabled low-income children  and children of color to transfer out of low-performing schools. That’s no longer the case. Today most vouchers go to families who already send their kids to private schools. Private schools often end up more racially segregated than public schools and are able to discriminate against students based on their sexual orientation, gender, class, ability, and religion.  Private schools are not required to follow most federal civil rights laws that protect students, so they can—and many do—discriminate and exclude children whom they do not wish to serve. For instance, they can exclude students with special needs, disabilities, or those who identify with LGBTQ communities.

4. Undermining Public Education

We have argued about schools since the earliest days of the country’s founding. Never before have our schools been so threatened by a well-coordinated, well-financed movement to bring the entire system down and replace it with a publicly-funded private system. Public schools are far from perfect, but it’s a “compelling state interest” to wholly support and strengthen Utah’s public schools. As long as public schools are underfunded and under-equipped, we cannot afford a dual system--one, a public system free and open to all; and two, a private system funded from the same revenue stream for families choosing a marketplace approach.

Recommendations to Legislators and the Public

• Increase transparency and oversight of UFA by applying the same norm-referenced assessments to students receiving UFA scholarships as those taken by public school students.

• Stop the expansion of the Utah Fits All voucher program until at least a publicly accessible educational and financial accountability report system is in place for students who receive state-funded vouchers, and the results show that students receiving vouchers are performing on par with public school students.

• Strengthen public schools by substantially increasing investment in needed personnel and proven policies that reflect evidenced-based programs and services.

• Contact your legislator to urge legislative adoption of the above three recommendations.

It is “a radical vision when schools no longer function as a community institution” but rather as a consumer product.  Public education plays a vital role in the formation of community life. We fund public education with tax dollars for a reason.  We have a stronger economy, better society, and a healthier democracy as a result of our free and universal approach to K-12 education.  We should not spend taxpayers’ money to support schooling that further fractures society.