The suit challenges the state’s new Utah Fits All Scholarship Program, which the Utah Legislature created in 2023 with HB215, initially using over $42.5 million in ongoing income tax revenue, then nearly doubled that ongoing funding earlier this year by adding an additional $40 million. In total, the program uses about $82.5 million in taxpayer funding a year.

The Utah Fits All Scholarship program — which its proponents prefer to call a “school choice” or scholarship program rather than a school voucher program — was implemented this year and began providing up to $8,000 to eligible Utah K-12 students for education expenses including private school tuition and fees, homeschooling, tutoring services, testing fees, materials, and other expenses.

The lawsuit comes as no surprise, as UEA ardently opposed the creation of the program in 2023, decrying the Utah Legislature’s Republican supermajority tactic of coupling the program with pay raises for teachers.

“Utah already spends less on public school students than nearly every other state,” said UEA President Renée Pinkney, noting Utah has long lagged behind other states when it comes to per-pupil spending, historically ranking last in the nation, according to the U.S. Census Bureau. Though in 2021 Utah moved up a slot, to 50th in the nation, when it outpaced Idaho.

“The voucher program diverts funds from already underfunded public schools, where 90% of our children learn, and places vulnerable students at risk by stripping away protections and accountability,” Pinkney said. “This alarming situation should raise serious concerns about the future of public education in Utah.”

The suit asks 3rd District Court Judge Laura Scott to declare the Utah Fits All program violates the Utah Constitution and permanently enjoin the state from “implementing, administering and enforcing” it.

Utah Fits All creators defend program, say Legislature is committed to public education

The Utah Fits All Scholarship program’s creators — Rep. Candice Pierucci, R-Herriman, and Sen. Kirk Cullimor, R-Sandy — have argued the program gives parents more flexibility, choice and resources when it comes to personalizing their kids’ education.

“It is disappointing that the UEA is putting politics above meeting students’ and teachers’ needs,” Cullimore said in a prepared statement issued Wednesday. “I’m confident in the constitutionality of this program, as it does not take away money from public education and ensures Utah schools continue to receive the same funding per student. By having a scholarship program, we’re investing in the future of every child to reach their full potential, regardless of their circumstances. Let’s focus on the real impact this scholarship can have on the lives of our children instead of political differences.”

Pierucci also issued a prepared statement defending the program.

“Every parent knows that when it comes to education, one size does not fit all. The Utah Fits All Scholarship was designed so every student — regardless of their zip code, wealth, and abilities — has the opportunity to learn in a way that makes sense for them,” she said. “I stand by this program and the policy decision to give parents more education options, and will continue to advocate for individualized learning and this program’s success.”

Pierucci has argued in recent years the Utah Legislature has made “historic investments” in Utah’s K-12 education system “and will continue to do so.” She also attacked the UEA.

“The union’s scarcity mentality, and unwillingness to prioritize Utah children, shows just how out of touch they are with Utah parents and students,” she said.

Senate President Stuart Adams, R-Layton, also issued a statement defending the Utah Legislature when it comes to public education spending.

“Our commitment to public education is clear: from 2014 to 2024, Utah state education funds increased by $2.5 billion, a 94.7% increase,” Adams said, while adding that the COVID-19 pandemic showed “parents needed more options for their kids.”

“The Utah Fits All Scholarship expands education opportunities to include additional educational paths for parents to use their taxpayer money to select what is best for their kids,” Adams said. “The scholarship program is a transformative step toward providing comprehensive educational opportunities for all Utah students. School choice emphasizes parental empowerment, the recognition of diverse learning needs and the importance of providing opportunities for every child to thrive academically. Supporting this scholarship means advocating for a future where educational choice is a right, not a privilege.”

Adams said Utah has “some of the finest public schools and most dedicated teachers in the nation,” and the Utah Legislature remains “dedicated to providing our public education institutions with the utmost support.”

“However,” he continued, “our goal is not only to ensure the overall success of schools; it’s also about guaranteeing that every child has the opportunity to thrive. The Utah Fits All Scholarship Program empowers kids who might struggle in traditional academic settings by providing them with the resources they need to succeed in the classroom and beyond.”

The argument against using state dollars for ‘school choice’

The program’s opponents argue it strips away taxpayer money from Utah’s public school system and pumps it toward a program that lacks transparency, accountability and fairness.

“You can’t fund two systems when you already have an underfunded public school system, and public dollars should stay with public schools,” Pinkney said. “We know kids that attend private schools are doing so because their parents, likely, already have the resources in order to send them to those private schools, and we don’t believe siphoning public dollars for private schools is in the best interest of our public education system.”

Along with UEA, four other plaintiffs have joined the lawsuit: Kevin Labresh, a public school psychologist in Davis County whose son receives special education services; Terra Cooper, a parent of two children attending a school in Davis School District; Amy Barton, a Washington County resident and public school teacher of 27 years; and Carol Lear, a member of the Utah State Board of Education.

Labresh told Utah News Dispatch his 6-year-old son receives special education services through Davis School District, which he said has helped him deal with “a lot of behavioral and emotional challenges.”

“I worry (about) kids like my son and the other (special needs) students … they’re going to be disproportionately harmed by the voucher program because they don’t have the same protections in private settings that they would have with the public school,” said Labresh, who joined in the announcement of the lawsuit on the courthouse steps. “The support and the training aren’t always there to help deal with those behaviors and at those specialized issues. So it’s an issue of equity and access.”

Labresh said he also worries about the impact of the program on rural students since “they don’t have the same opportunities for private programs that students (along the Wasatch Front) might.” He also worries that the program lacks fairness for lower-income Utahns.

While he acknowledged that the Utah Fits All Scholarship program does include some prioritization for lower-income families, “when you look at the numbers, like the amount of the scholarship versus tuition at a lot of private settings, they’re still having to pay several thousand dollars out of pocket.”

For families living paycheck to paycheck, “the numbers just don’t work out,” he said, “so again it’s an issue of equity and access.”

The lawsuit states private school tuition in Utah averaged $10,000 in the 2022-2023 school year. Even with an $8,000 scholarship through the program, the suit states “average families participating in the voucher program can expect to pay several thousands of dollars out-of-pocket.”

“When you start to peel apart all those different layers, I feel Utah Fits All becomes Utah fits the privileged few,” he said. “I have a lot of concerns with that, with more money being taken out of public education.”

Lear, who has been an elected member of the Utah State Board of Education since 2016, said she’s been opposed to the idea of school vouchers for almost 20 years.

“I object to the fact that they take money away from public education,” she said. “I want children to be able to enroll in a school and not be selected for a school. And I also think this particular voucher bill has less accountability than any we’ve seen in the last 20 years in Utah.”

Lear said her “biggest problem” with the program is it “strips control from the State Board of Education, which the (Utah) Constitution says should have general control and supervision of public education.”

The lawsuit alleges the program violates state constitutional requirements because it “diverts income tax revenues to fund private schools that are (1) not free, (2) not open to all students, and (3) not controlled and supervised by the State Board of Education.”

The suit also says the program doesn’t require qualifying providers to “provide sound, basic education, satisfy any academic standards, or prepare students for higher education or the workforce.”

“They may instruct students in pseudoscience, conspiracy theories, or nothing at all,” the lawsuit states.

Additionally, the suit alleges the program includes “a broad and explicit license to discriminate: a qualifying provider cannot be required to alter its ‘creed, practices, admissions policies, hiring practices, or curricula’ as a condition of receiving public voucher funds.”

“Qualifying providers must only refrain from discriminating on the basis of race, color, or national origin,” the lawsuit states. “They are not prohibited from discriminating on any other basis they choose, including religion, sex, age, marital status, disability, pregnancy, sexual orientation, gender identity, or political affiliation.”

The program also lacks fiscal accountability, the lawsuit argues, noting that while public schools are “subject to extensive financial reporting requirements,” the program’s qualifying providers are “required to submit only the most cursory information” to the private program’s manager.

The fight over Utah’s constitutional requirement to spend income tax dollars on education

The debate over Utah Fits All also comes at a time when voters have a crucial decision ahead of them when it comes to Utah’s constitutional budgetary constraints and public education.

Utah’s Constitution has historically required the state’s income tax revenue be used only for public education, though that constitutional earmark has been loosened twice, including in 1996 to allow income tax revenue to be spent on public higher education, and in 2020 to open income tax dollars to social services for children and people with disabilities.

On this year’s November ballot, Utah voters are set to consider another constitutional amendment to remove that education earmark to provide more flexibility for state spending — something Republican legislative leaders have long considered a way to help address a budgetary structural imbalance between sales tax and income tax revenue.

In another coupling strategy, the Utah Legislature put the constitutional amendment removing Utah’s education earmark on the 2024 ballot while dangling a carrot. If voters approve the amendment, they’ll also allow a $200 million tax cut to take place by removing the state’s portion of sales tax on food, which advocates for low-income Utahns have long sought. That tax cut, however, is contingent on the constitutional amendment passing at the polls.

The UEA has opposed that constitutional amendment, concerned it would jeopardize future education dollars. Utah’s Republican legislative leaders have argued removing that earmark will not change their commitment to public education, but provide needed budgetary flexibility.

Pinkney alluded to that issue during Wednesday’s press conference, saying UEA will “continue to fight for a future where every child has access to high quality, public education.”

“If you oppose vouchers, you oppose the constitutional amendment” on the November ballot, she said.

Asked about the timing of the lawsuit and why it’s come now — even though the Utah Fits All program was created in 2023 and has already been implemented — Pinkney said the teacher union was exploring “all of our options.”

“We did a very thorough job in making sure that we have an airtight case,” she said.

Time will tell what comes of the case. The plaintiffs are also considering filing a motion for a preliminary injunction, or a motion for a temporary restraining order to attempt to stop the program in its tracks while the case is litigated, a UEA spokesperson said in an email to Utah News Dispatch.

“We are still considering our next best steps,” she said.

Contributing: Alixel Cabrera

Utah News Dispatch is a nonprofit, nonpartisan news source covering government, policy and the issues most impacting the lives of Utahns.