Unconstitutional Voucher Program Can't Be Fixed Easily
No good options for proponents to meet constitutional muster. Best option may be, ironically, to scrap unconstitutional EdChoice program and start over.
I’m not in the habit of giving advice to people bent on destroying public education. But as part of an exercise, I started thinking, “What if Ohio Gov. Mike DeWine and Ohio House and Senate leaders were good faith purveyors of school choice? What would they do to address the massive, historic ruling from Franklin County that found Ohio’s $950 million a year EdChoice voucher program unconstitutional?”
I guess it’s the old legislator in me. I wanted to see if I could figure out a legislative fix so the program could meet constitutional muster. And, to be honest, it’s almost impossible without killing the program entirely. Here’s why:
It all starts with funding public school students first.
This is the EdChoice proponents’ fundamental problem. They are funding EdChoice for about the same amount of money that is needed to fully fund the state’s Fair School Funding Plan, which pays for the 1.5 million students in Ohio’s public schools. Complicating this is that the money for EdChoice comes out of the same state budget line item as the money for the Fair School Funding Plan. But even if they separated out the money, the fundamental flaw still exists: The state is refusing to fully fund the needs of the 1.5 million students in Ohio’s public schools in order to directly fund private, mostly religious schools.
Ohio Private Schools are overwhelmingly Religious.
About 90 percent of the money going to EdChoice is being paid directly to religious schools — primarily Catholic, but Hebrew, Islamic and other sectarian schools are also being funded. The Ohio Constitution is crystal clear: No religious sect can control public money. If religious schools are the applicants for and recipients of EdChoice money, it’s going to be a major Constitutional problem.
EdChoice vouchers cost substantially more state money per pupil than public school students.
This has been true for years, but it’s really exploded recently as private school vouchers have never (and by never, I mean NEVER) been cut, regardless of economic reality. They have only ever been increased. Usually by a lot. And always arbitrarily. No real calculation is done to determine what the voucher amount should be. It’s just a fixed amount above a random amount from a prior year. But when the EdChoice high school voucher is larger than what kids in 85 percent of Ohio school districts receive, that’s a real problem when the Ohio Constitution requires that the state establish one thorough and efficient system of common schools
So what could be done? Again, assuming you had people of good faith in state political leadership who called a special session of the General Assembly to cope with this ruling. To be honest, I don’t know. But here are some (still unconstitutional) options:
Fully fund the Fair School Funding Plan. This would eliminate the program’s first hurdle, but you would still have issues with setting up a second education system that’s neither thorough, efficient, or common. So it’d be a good first step, but unless other changes happen, EdChoice is still unconstitutional.
Require voucher recipient schools to accept whoever comes through the door. Believe it or not, this was part of the original Cleveland voucher program, but was ditched once real money got involved. While this would help EdChoice become more constitutional, it’s extremely unlikely that many private schools would agree to this, which would greatly reduce the number of voucher schools taking vouchers. And even if voucher schools take everyone, they’re still largely religious. So when you’re talking about hundreds of millions of dollars going to these schools, it’s going to eb a Constitutional problem.
Pay parents and students rather than private schools directly. Again. This is an improvement, but given the sheer scale of the program now and the fact that even if parents are choosing where to use the money, the fact is the overwhelming majority of voucher recipient schools are religious. Tough to get around that problem on a program of this scale.
Tie voucher money to state aid in the district the student lives in. Again, an improvement. This would mean if you live in Columbus, where state aid is about $3,787 per pupil, if a student living in Columbus takes an EdChoice voucher, the max they can get is $3,787. This would reduce the cost of the vouchers significantly; however, it’s still a $700 million plus program at the end of the day.
The only way to really address Judge Page’s decision is to do the following: kill EdChoice, transfer that money instead to fully fund the Fair School Funding Plan, require any voucher recipient to have spent at least 180 days attending a public school prior to receiving a voucher, give the same amount of state aid to the student as they would have received in their public school, require any voucher recipient school to accept anyone who applies, require the schools to not charge any tuition above the voucher amount (which was the case in the beginning), require the voucher money to be publicly audited and limit the vouchers to non-religious schools.
This would reduce the scale of the program dramatically and would shrink it to the level it was 25 years ago when the U.S. and Ohio Supreme courts found the program in Cleveland Constitutional because it was so relatively small and limited.
Like I said earlier, though. That outcome’s impossible. Because the current leadership in Columbus is not made up of good-faith leaders who want to adhere to a legal ruling.
The proponents of the unconstitutional voucher system are banking on the Ohio Supreme Court making a political decision to undo Judge Page’s ruling.
It’s up to us to keep the politicians on the state’s highest court from doing that.