Do State Constitutions Demand a Monopoly for Public Schools?

School choice is taking off. Over the past several years, numerous states have adopted programs that empower parents to direct state funds to pay their children’s private-school tuition and similar costs. Several state courts are now hearing challenges to the constitutionality of these programs. The suits allege that state constitutions restrict state funding of education to public schools alone.

These lawsuits adopt a litigation strategy that originates in a challenge to “substantial inter-district disparities in school expenditures” that the U.S. Supreme Court rejected in 1972. The Court held in San Antonio Independent School District v. Rodriguez that K–12 education is not a fundamental right under the federal Constitution.

This result famously led litigators demanding adequate and equitable school budgets to turn from federal to state courts. If the U.S. Constitution contains no federal right to education, which means that federal courts will not apply strict scrutiny to funding disparities, perhaps state courts would remedy violations of their own state constitutions’ guarantees of educational rights. Efforts to induce state courts to do so gained momentum in the decades after San Antonio and are often referred to as constituting second and third “waves” of school-finance cases. Plaintiffs in such cases prevailed in roughly half the states, and likely affected school finance law in additional states fearful of lawsuits.

Litigators today are deploying the same strategy in order to defeat school choice. They argue that school choice is inconsistent with the same “education clauses” in state constitutions upon which the second- and third-wave finance cases relied. These clauses impose an obligation upon states to create and maintain a system of public, “common,” or “free” schools. This requirement is sometimes coupled, implicitly or explicitly, with a requirement that the schools so created must be funded and organized to provide a floor of quality and equity.

The argument that school-choice programs violate such clauses is that the requirement that legislatures support public schools implies that they may not grant public funds to non-public schools. Using public monies to subvert parentally chosen private school expenses, moreover, impermissibly diverts funds that legislatures are required to devote to public education. Arguments like these — with variations based upon the particular language of individual state constitutions — have failed in some states, but succeeded in 2024 in the Supreme Court of South Carolina and, in the spring and summer of 2025, in trial courts in Ohio, Utah, and (preliminarily) Wyoming. These cases are very likely to make their way to their states’ highest courts. Courts in Tennessee are considering the issue as well.

Litigators have also focused upon a feature of state education clauses not germane to the school-finance cases: language that directly prohibits the funding of private schools.

To take three relevant examples: The South Carolina Constitution requires that “no money shall be paid from public funds nor shall the credit of the State . . . be used for the direct benefit of any religious or other private educational institution.” The Ohio Constitution states that “no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.” And the Montana Constitution forbids the legislature from making “any direct or indirect appropriation or payment from any public fund or monies . . . to aid any . . . school . . . controlled in whole or in part by any church, sect, or denomination.”

These clauses clearly address religion, which is relevant because most choice programs explicitly provide for participation by religious as well as secular schools. This is for reasons of principle — many choice proponents believe that parents should be allowed the fullest range of educational options — but also of practicality: Because the current private-school market is dominated by religious providers, it is hard to get choice off the ground without their participation. The recent success of school-choice efforts has therefore found both ideological and practical support from a line of U.S. Supreme Court decisions that require states to permit private, religious schools to participate in choice programs on an equal footing with secular schools. One of the Court’s cases, Espinoza v. Montana Department of Revenue, held that the application of the above-quoted no-aid clause in the Montana Constitution to the state’s program of school choice violated the federal Free Exercise Clause.

The South Carolina and Ohio decisions noted above, however, focused on a peculiarity of their states’ no-aid causes not shared with that of Montana (or Utah). South Carolina’s supreme court emphasized that its constitution forbids public funding of “religious or other private educational” institutions.” The disjunctive language of the clause makes clear, in the view of the court, that this is not a prohibition on religious participation (which Espinoza forbids) but on funding of any private schools, religious or secular (which Espinoza permits). The Ohio trial court made a similar move, pointing to the prohibition on providing “religious or other sect[s]” with access to school funds. The word “or,” the court wrote, clearly shows that the prohibition does not target religion but bars non-religious as well as religious “sects” from receiving funding — and therefore does not run afoul of Espizona. (The school-choice challengers in Wyoming rely on a similarly disjunctive provision in that state’s constitution that is not specific to education.)

Today’s cases clearly echo the response to San Antonio: Advocates for public education who find that the U.S. Constitution is unavailing or even an obstacle continue to turn to state constitutions. But the cases also illustrate the changes in styles of state constitutional interpretation since the 1970s and 1980s. Arguments about whether giving money to private schools runs afoul of a duty to support public schools are in substantial part about whether and how to apply the expressio unius est exclusio alterius canon of textual interpretation, which provides that a statute that expressly mentions one thing should be read to exclude others not mentioned. Does a constitution that imposes a duty to fund public schools imply a concomitant prohibition on funding their competitors?

Likewise, whether the framers of the South Carolina and Ohio constitutions were targeting religion with their no-aid clauses depend on competing applications of the rule against surplusage, the interpretive principle that every word must have a purpose and that words should not be given redundant meanings. On the one hand, there is no reason to say “religious or other sects” if one means only religious sects. On the other, if you mean any private school at all, why not just say “sects” or “schools” and not mention religion at all?

The cases thus demonstrate how plastic textualist deployment of canons can be. One might say something similar about the extensive discussion in the Utah trial court of drafting history of the state’s education clauses, citing testimony from contemporaneous legislative analysts and voter pamphlets prepared for the public in a quest to determine a 1986 amendment’s “original public meaning.”

On the educational policy side, the pressing question is whether school choice will persist, thrive, or wither under state court scrutiny. Here, it seems likely that we are headed for a replay of the school-finance cases in that different states will come out different ways — and without hewing to any obvious partisan pattern. This, perhaps, is a desirable outcome, although having interstate differences hinge on small differences in the phrasing of no-aid clauses will trouble many. 

One thing none of the current cases mention is this past summer’s federal One Big Beautiful Bill Act, which created the nation’s first-ever federal tax credit program for private school tuition. A Congressional compromise makes the credits available only in states that “voluntarily” elect to participate. Whether to do so will generate robust debate in many states, even as Washington is likely to apply substantial pressure to do so. 

From the perspective of the choice cases, the critical feature of the new credits is that they are funded by increasing the national debt, not by state treasuries. It is therefore much harder to argue that a state decision to facilitate the credits either diverts state funds from public schools or constitutes forbidden state support for private schools. The availability of federal credits will therefore require a substantial recasting, and may even moot, many of the key arguments against choice that state courts are now considering. Ultimately, the tax credit program may prove the undoing of the strategy of turning to the state courts to protect public schools — not because the U.S. Supreme Court backed choice with federal doctrine, but because Congress and the Trump administration are backing choice with federal dollars.

Aaron Saiger is a professor at Fordham University School of Law and the director of Fordham Law School’s Urban Law Center.

Suggested Citation: Aaron Saiger, Do State Constitutions Demand a Monopoly for Public Schools?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Sep. 22, 2025), https://statecourtreport.org/our-work/analysis-opinion/do-state-constitutions-demand-monopoly-public-schools