After a quarter-century ceasefire, the Education War has returned to Ohio.
In June, the state court granted a summary judgment in favor of public school districts and families who challenged Ohio’s recently expanded school voucher program. Under this program, families are eligible to receive a state scholarship to enroll in the private schools in which their children participate. The judge found that the program violated the Ohio Constitutional Education Guarantee and the prohibition on state funding for religious or sectarian schools. The decision represents both the cutting edge of the state constitution and the latest skirmish in the long-term battle for public funding for education in Ohio. As the first state to ensure constitutional public education and one of the latest states to enact a universal school voucher, it is a battle worth paying attention to.
Ohio has long been a pioneer in public education. The state’s first constitution, adopted in 1802, reflected the Northwest Ordinance by declaring that “schools and instruments of guidance are forever encouraged by legislative clauses.” Unfortunately, the horticultural nature of this provision meant it took decades before Congress acted to pass meaningful school legislation. Recognizing this, it did not make the same mistake to embrace the “common school movement,” the framework of Ohio’s current constitution, adopted in 1851. Instead, Ohio became the first state to ensure a “full and efficient system” of schools. This ensures that many other states replicate. In 1923, the Ohio Supreme Court defined these terms, saying, “A thorough system cannot mean that some or a number of state school districts are hunger for funds,” and “an efficient system could not mean that a state school district lacked teachers, buildings, or equipment.” In 1997, the court declared Ohio’s legislative funding scheme for public schools unconstitutional in a series of controversial decisions.
While the school’s fundraising lawsuit was underway, Ohio launched its Pilot Project Scholarship Program. It is a voucher program that allowed children from “low-income households” registered with Cleveland’s public school system to apply for scholarships to attend “alternative schools,” including private religious schools. The voucher program survived state and federal challenges regarding the basis of its establishment clause, but was eventually repealed under the Ohio Single Subject Rules. Single Subject Rules were designed to prevent legislative “logrolling.” This is the practice of combining unrelated measures that cannot pass themselves to their own omnibus bill to ensure passing. The voucher program was quickly replicated as a standalone bill to cure this flaw.
In a decision to break the previous bill on a single subject’s ground, the court rejected the challenge that the program violated the state constitution’s guarantees of a “full and efficient” education system. The Ohio Supreme Court said that the “exhaustive and efficient provision” is a “prohibition on the establishment of a system of non-public schools funded by the state.” He acknowledged that the state’s private schools were ahead of public schools and offered “valuable alternatives,” but warned that “their success should not be at the expense of the public education system” in terms of funding. The court said it was not possible to confirm what the school’s voucher program looks like (editor). At the current level of fundingundermines the state’s obligations for public education. “However, the footnote added that diverting funds from public schools could “a significantly expanded school voucher program or similar program could undermine public education,” and that “such programs could be subject to new constitutional agendas.”
Fast forward 25 years and its footnotes have proven prophetic. Since then, Ohio’s voucher program has gradually expanded. First, to families who attended a school district where their children “failed” children, and then to families across the state who are under 200% of federal poverty levels. Finally, it was universalized in 2023. Families currently account for up to 450% of federal poverty levels are eligible for K-8 grade $6,165 per year voucher and $8,407 in high school. Families who make more money are eligible for reduced vouchers. Ohio is spending billions of dollars on voucher programs despite relatively low rates of spending on public education. Critics have expressed concern that the voucher program is subsidizing private schools at the expense of Ohio’s public school system.
Around 200 public school districts and families groups sued the state, claiming that the expanded voucher program is unconstitutional under the state’s equal protection clause and Ohio’s thorough and efficient clause and no-aid clause. The constitutional provisions of these states provide provisions to “ensure a thorough and efficient system of general schools throughout the state,” but order that “religious or other sects, or sects” from “being exclusive rights or control over a portion of this state’s school fund.”
Judge Jaiza N. Page denied an equal protection claim, but found the program unconstitutional for three reasons. First, she expands the voucher program that “created a rare system of private schools” and reasones that, rather than simply creating scholarships, the voucher program actually established a system of private schools that robbed public schools of money. Second, she explained that the program has the effect of stealing funds from public schools, which undermines the “completeness” and “efficiency” of the public school system. Third, the program enabled “non-state actors” running private schools eligible for vouchers, or “religious and non-religious sects,” to “manage” the funds of state schools and use those funds to engage in discrimination just like those who accepted them.
Page, undoubtedly a recogniser of the self-declared originalist textist supermajority of the Ohio Supreme Court, frequently used his historical resources in reaching her retention, including minutes and discussions of the Constitutional Conventions and Term Dictionaries of 1851 and 1874 in Ohio. She even cited a recent article by Ohio Supreme Court Judge Pat DeWine that promoted an originalist approach to interpreting the national constitution. But that may not be enough for her decision to survive on appeal.
In 2020, the U.S. Supreme Court declared that while states do not need to subsidize private education, “If they decide to do so, they cannot disqualify some private schools just because they are religious.” Shortly afterwards, the court found that the state’s constitutional “non-denominational” requirement for tuition assistance payment programs that could otherwise be used violated the freedom movement clause. These decisions, much like Ohio, overturned the state’s constitutional “no-eyed” or “brain clauses” that banned state funding for the religious system. In her ruling, Page sought to distinguish Ohio’s provisions from these by interpreting “denominations” in a secular way. Theoretically, I declared the ruling based on the recognition that the religious system unfairly prohibits participation in voucher programs. The problem is that the Supreme Court rejected this type of reading in its interpretation of textically similar provisions of the Montana Constitution. Therefore, this aspect of Page’s judgment rarely stands up to federal scrutiny.
The best opportunity for plaintiffs’ affirmation is on the ground of appropriate and independent states with a “full and efficient” clause. With regard to that provision, the Ohio Supreme Court has a long precedent for laying markers that could overturn inadequate funding for public schools. Here, funding for the voucher program comes at the expense of public school districts. If loss of funds from a voucher program is depriving public school students of educational opportunities, the program is unconstitutional.
However, it is a steep hill that climbs. With rare exceptions at the turn of the century when Ohio’s High Court repeatedly removed Congressional school funding schemes, the courts have largely been postponed to Congress on the issue. The fact that today’s justice regularly condemns “judicial activities” makes such a dramatic ruling much less dramatic ruling. However, the Ohio Supreme Court’s recent recommendations for the state constitution give plaintiffs a chance.
Nathaniel M. Fauci is a law professor at Capital University Law School in Columbus, Ohio.
Suggested Quote: Nathaniel Fauci, The Education War returns to Ohiosᴛᴀᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (Sep. 03, 2025), https://statecourtreport.org/our-work/analysis-opinion/education-wars-return-hio
