Teachers’ union lawsuit against Utah’s universal school choice program doesn’t pass muster, says legal expert

The Utah Education Association is suing the state’s new universal school choice program, but legal experts don’t think the case will hold up in court.

The Utah Fits All Scholarship Program was passed by the Legislature last year and is already approving thousands of applications in the program’s inaugural year.

However, the Utah Education Association (UEA) – the state’s largest teachers’ union – claims the program is unconstitutional.

UEA’s lawsuit cites Article XIII Section 5 of the state constitution, which requires the government to use property and income tax revenue to fund public education.  

It also complains that the State Board of Education has too small a role in overseeing the program.  

“The Utah Fits All voucher program does not fit all and, in fact, hurts public school students and educators,” said Renée Pinkney, president of UEA, in a statement. “It violates Utah’s constitution, which clearly states that education should be free and open to all, and specifically delegates general control and supervision by the Utah State Board of Education, which protects the use of public funds for public education.” 

However, Bill Duncan, a Constitutional Law & Religious Freedom Fellow with the Sutherland Institute, doesn’t think UEA’s legal arguments pass muster.  

“Their claims are a little bit vague,” Duncan told The Lion. “For instance, the claim that somehow giving assistance to parents who need another kind of educational option for their children is a violation of the obligation to provide free schools – it’s not clear what the link is between the constitutional text they’re concerned about and the actual bill.” 

He said the lawsuit reads more like a “policy argument” about why the program wasn’t beneficial – not why it was illegal. 

And if UEA’s claims were valid, they would undermine not just Utah Fits All, but the state’s scholarship programs for special needs students as well.  

“This type of program is already in place [for students with disabilities], and the plaintiffs in this case seem to be accepting that [the special needs program] is just fine,” Duncan explained. “Under that principle, if it’s fine to provide assistance to parents outside of the normal public school route in one setting, it’s unclear why the constitution wouldn’t allow that in other settings as well. 

“I don’t know that there’s a great way that they get to the conclusion they would like the courts to apply without really stretching the current constitutional language in ways I don’t think it’s intended to go,” he concluded.  

The legislators who sponsored the original bill are also defending the program’s legality.  

“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,” said Sen. Kirk Cullimore, R-Draper. “By having a scholarship program, we’re investing in the future of every child to reach their full potential, regardless of their circumstances.” 

Rep. Candice Pierucci, R-Herriman, even blasted UEA for being “out of touch.”  

“Every parent knows that when it comes to education, one size does not fit all,” Pierucci said. “The Legislature has made historic investments in Utah’s K-12 education system and will continue to do so. The union’s scarcity mentality, and unwillingness to prioritize Utah children, shows just how out of touch they are with Utah parents and students.” 

But despite strong public support, school choice programs like Utah Fits All are being challenged in courts nationwide. 

For his part, Duncan blames a lingering animus toward religious and private schools, which he says is counterproductive.  

“There is some skepticism or even hostility towards religion but also some hostility toward private schools in general,” he told The Lion. “There are these professional organizations [that] may feel threatened by alternative approaches to providing for the educational needs of children. 

“That’s too bad. That’s short sighted because everybody in an educational system benefits when there are a lot of options that allow a lot of children to flourish including religious options. 

“There’s nothing unconstitutional about allowing parents some space for exercising their choice about how to best meet their children’s educational needs.”