The Education Wars Return to Ohio

After a quarter-century ceasefire, the education wars have returned to Ohio.

In June, a state trial court granted summary judgment in favor of public school districts and families that challenged Ohio’s recently expanded school voucher program. Under this program, families are eligible to receive scholarships from the state for their children to enroll in participating private schools. The judge found that the program violated the Ohio Constitution’s educational guarantees and its prohibitions on state funding of religious or sectarian schools. The decision represents both the cutting edge of state constitutional law and the latest skirmish in a long-running battle over public funding for education in Ohio. As the first state to constitutionally guarantee public education and one of the most recent to enact universal school vouchers, it’s a battle worth paying attention to.

Ohio has long been a pioneer in public education. The state’s first constitution, adopted in 1802, echoed the Northwest Ordinance in declaring that “schools and the means of instruction shall forever be encouraged by legislative provision.” Unfortunately, the hortatory nature of this provision meant it took decades before the legislature acted to pass meaningful school legislation. Recognizing this, and having embraced the “common schools movement,” the framers of Ohio’s current constitution, adopted in 1851, did not make the same mistake. Instead, Ohio became the first state to guarantee “a thorough and efficient system” of schools — a guarantee that many other states would replicate. In 1923, the Ohio Supreme Court defined these terms, stating that a “thorough system could not mean one in which part or any number of the school districts of the state were starved for funds,” and an “efficient system could not mean one in which part or any number of the school districts of the state lacked teachers, buildings, or equipment.” In 1997, the court, in a series of contentious decisions, declared Ohio’s legislative funding scheme for public schools unconstitutional.

While the school funding litigation was ongoing, Ohio launched its Pilot Project Scholarship Program, a voucher program that permitted children from “low-income families” enrolled in 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 on Establishment Clause grounds, but it was ultimately struck down under Ohio’s single-subject rule. Single-subject rules were designed to prevent legislative “logrolling” — the practice of combining unrelated measures that could not pass on their own into a single omnibus bill to ensure passage. The voucher program was then speedily reenacted as a stand-alone bill, curing this defect.

In the decision striking down the previous bill on single-subject grounds, the court rejected a challenge that the program violated the state constitution’s guarantee of a “thorough and efficient” educational system. The Ohio Supreme Court stated that “implicit within” the “thorough and efficient clause” is “a prohibition against the establishment of a system of uncommon (or nonpublic) schools financed by the state.” It acknowledged that private schools in the state predated public schools and provided a “valuable alternative” but warned that “their success should not come at the expense of our public education system” in terms of funding. The court stated that it “fail[ed] to see how the School Voucher Program, at the current funding level, undermines the state’s obligation to public education.” In a footnote, however, it added that it was “possible that a greatly expanded School Voucher Program or similar program could damage public education” by diverting funds from public schools and that “such a program could be subject to a renewed constitutional challenge.”

Fast-forward 25 years and that footnote has proven prophetic. Since then, Ohio’s voucher program has gradually expanded: first to any family whose children attended a “failing” school district and then to any family statewide earning under 200 percent of the federal poverty level. Finally, in 2023, it was universalized. Now, any family making up to 450 percent of the federal poverty level is eligible for a voucher of $6,165 per year for grades K–8 and $8,407 for high school. Families that make more money are eligible for a reduced voucher. Ohio is now spending billions of dollars on its voucher program, even as it has increased spending on public education at a comparatively lower rate. Critics have expressed concern that the voucher program is subsidizing private schools at the expense of Ohio’s public school system.

A group of around 200 public school districts and families sued the state, arguing that the expanded voucher program was unconstitutional under the state Equal Protection Clause and Ohio’s thorough and efficient clause and no-aid provision. These state constitutional clauses mandate that the legislature make provisions to “secure a thorough and efficient system of common schools throughout the state” but preclude any “religious or other sect, or sects” from having an “exclusive right to, or control of, any part of the school funds of this state.”

Judge Jaiza N. Page denied the equal protection claims but found the program unconstitutional on three grounds. First, she said, expanding the voucher program “created a system of uncommon private schools,” reasoning that rather than merely creating scholarships, the voucher program actually established a system of private schools that took money away from public schools. Second, as the program had the effect of taking funding away from public schools, she explained, it undermined the “thoroughness” and “efficiency” of the public school system. And third, the program enabled “non-state actors” — “religious sects and non-religious sects” who operate voucher-eligible private schools — to “control” state school funds and use those funds to engage in discrimination as to whom they accept, she said. 

Page, no doubt cognizant of the Ohio Supreme Court’s supermajority of self-declared originalist-textualists, made heavy use of historical sources in reaching her holding, including the proceedings and debates of Ohio’s 1851 and 1874 constitutional conventions and period dictionaries. She even cited Ohio Supreme Court Justice Pat DeWine’s recent article promoting an originalist approach to state constitutional interpretation. That may not be enough for her judgment to survive on appeal, however.

In 2020, the U.S. Supreme Court declared that although states don’t have to subsidize private education, if a state “decides to do so, it cannot disqualify some private schools solely because they are religious.” Soon after, the Court found that a state constitutional “nonsectarian” requirement for an otherwise generally available tuition assistance payment program violated the Free Exercise Clause. These decisions nullified state constitutional “no-aid” or “Blaine provisions,” which prohibit state funding for religious institutions, almost exactly like Ohio’s. In her ruling, Page attempted to distinguish Ohio’s provision from these by interpreting “sects” in a nonreligious manner, in theory insulating the ruling from a perception that it unfairly bars religious institutions from participating in the voucher program. The problem is that the Supreme Court rejected this type of reading in its interpretation of a textually similar provision of the Montana Constitution. This aspect of Page’s ruling, then, is unlikely to withstand federal scrutiny.

The plaintiffs’ best opportunity for an affirmance comes on the adequate and independent state ground of the “thorough and efficient” clause. On that provision, the Ohio Supreme Court has a long line of precedent laying down markers under which inadequate funding to public schools could be overturned, such as where “a school district was receiving so little local and state revenue that the students were effectively being deprived of educational opportunity.” Here, the argument goes, funding for the voucher program comes at the expense of public school districts, which lose money when children opt into private schools. If lost funding due to the voucher program deprives public school students of educational opportunity, then the program is unconstitutional.

It’s a steep hill to climb, however. With rare exceptions at the turn of the century, when Ohio’s high court repeatedly struck down the legislature’s school funding scheme, the court has been largely deferential to the legislature on this issue. The fact that today’s justices regularly decry “judicial activism” makes such a drastic ruling that much less likely. But with the Ohio Supreme Court’s recent recommitment to its state constitution, the plaintiffs have a chance.

Nathaniel M. Fouch is a law professor at Capital University Law School in Columbus, Ohio.

Suggested Citation: Nathaniel Fouch, The Education Wars Return to Ohio, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sep. 03, 2025), https://statecourtreport.org/our-work/analysis-opinion/education-wars-return-ohio