The fate of Ohio’s $1 billion private school voucher system hangs in the balance.
A 10th District Court of Appeals panel heard legal arguments on May 12 about whether Ohio’s method of funding private education violates the state Constitution. The judges’ ruling is expected in the coming months, but it’s only one step on the road to the ultimate decision-maker: the Ohio Supreme Court.
Several hundred public schools have sued over the private school voucher program, also called EdChoice. They argue that using state taxpayer dollars to pay for private school tuition violates the state Constitution and leads to underfunding public schools.
The Ohio Constitution requires lawmakers to pay for “a thorough and efficient system of common (public) schools throughout the state” and bans religious organizations from having “any exclusive right to, or control of, any part of the school funds of this state.”
Ohio’s voucher program started decades ago to help low-income students and those with specific conditions obtain a private education. In recent years, the voucher program has ballooned.
In 2023, GOP state lawmakers approved a near-universal school voucher system, which allows students from high-performing public schools and high-earning families to take advantage of the option. Now, Ohio is paying about $1 billion for private education, which proponents call school choice.
Backers of school vouchers argue that the Ohio Supreme Court already OKed this system when it approved that earlier, smaller program.
“The state’s interest is in helping families who want to send their children to private school be able to afford tuition to do so,” said Keith Neely, an attorney with the pro-voucher Institute of Justice.
But Judge David Leland, a former Democratic state lawmaker, questioned whether the state Supreme Court that ruled on that case would have approved the sweeping program that Ohio has today.
“Didn’t they warn about the fact that someday a system may be so large and cumbersome in the state of Ohio that we may take a look at it again as to whether it meets the constitutional challenge?” Leland asked.
Leland was one member of the panel, along with Judge Kristin Boggs and Judge Shawn Dingus. All three are Democrats. At the next level, Republicans hold a 6-1 majority on the Ohio Supreme Court.
Lawsuit challenges constitutionality of school voucher program
The 10th District is the middle step in this legal battle.
In July 2025, a Franklin County judge ruled that using state taxpayer dollars to pay for private school tuition violated Ohio’s requirement to provide one common system of education. Judge Jaiza Page, a Democrat, also ruled that Ohio was underfunding public schools while doling out money to private ones.
But Page allowed Ohio to dole out vouchers as Republican leaders appeal the decision.
Attorneys made their case to the appeals court on May 12. School voucher backers contended that Ohio lawmakers could legally spend $1 billion on private schools, or even more, as long as lawmakers also met their constitutional obligation to fund public schools adequately.
Public schools also can’t guarantee that state lawmakers would spend the $1 billion in voucher money on public education. Instead, they could pay for an income tax cut or a new stadium project, argued attorneys supporting school vouchers.
“There’s no inherent connection between the EdChoice funding and the public school funding,” deputy Solicitor General Stephen Carney said.
No, there’s no guarantee, agreed Dan Heintz, a public school teacher and a member of the Cleveland Heights-University Heights Board of Education. But “when the Supreme Court eliminates the EdChoice vouchers, the money will be there, and the statewide expectation will be there that Ohio’s public schools will be funded to the promise of the Constitution.”
Another debate was about whether school vouchers create an illegal, second system of schools. Private school supporters contend that Ohio isn’t creating a second system because many of these private schools predate the voucher program.
An attorney for public schools also argued that Ohio is subsidizing private schools in a sweeping, substantial way that violates the original intentions of the state’s founders. That’s an argument that could hold weight with Republicans on the Ohio Supreme Court who favor originalism.
“In this litigation, the plaintiffs are the originalists,” said attorney Mark Wallach, who is representing public school districts. “Those drafters believed that public schools were essential to the creation of an educated and responsible electorate.”
Private schools can also deny students with disabilities or behavioral issues, which puts more stress on the public system, attorneys for the public schools argued. Private schools can also deny students based on religious beliefs.
Dingus offered an example of an LGBTQ student in a rural area that has only one private school option. If that school denies the student’s application, “How is that choice?” he asked.
The public schools’ lawsuit has faced significant pushback. At one point, GOP lawmakers considered punishing school districts that participated in the lawsuit with funding cuts, but they’ve since retreated from that stance.
State government reporter Jessie Balmert can be reached at jbalmert@usatodayco.com or @jbalmert on X.
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This article originally appeared on Cincinnati Enquirer: Ohio’s $1B school voucher system faces major constitutional test
Reporting by Jessie Balmert, Columbus Dispatch / Cincinnati Enquirer
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