Lawsuit marks start of legal battle over school choice in Utah

Utah’s largest teacher’s union is suing over the state’s school choice program.

State lawmakers passed a bill implementing a voucher system in 2023. Known as the Utah Fits All Scholarship Program, the measure would give eligible K-12 students up to $8,000 to use for private school tuition and other costs. The program is slated to take effect in the 2024 to 2025 school year.

The Utah Education Association, along with plaintiffs Kevin Labresh, Terra Cooper, Amy Barton and Carol Lear, filed the suit Wednesday morning in the 3rd Judicial District Court in downtown Salt Lake City. The suit named Gov. Spencer Cox, Utah Attorney General Sean Reyes and Alliance for Choice in Education as defendants.

Cox’s office declined to comment as did the Utah attorney general’s office. The Alliance for Choice in Education did not immediately respond for a request for comment.

The suit claims the voucher program violates requirements found in the Utah Constitution. “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.”

Plaintiffs are seeking that the court declare the voucher program unconstitutional and prevent the enforcement and implementation of the program.

UEA President Renée Pinkney held a press conference to announce the suit on the east steps of the Scott Matheson 3rd District Courthouse on Wednesday morning.

“The lawsuit is based on the grounds that the Utah Fits All Voucher Program does not fit all and in fact, harms public school students and educators,” said Pinkney. “It violates Utah’s Constitution, which clearly states that education should be free and open to all schools.”

Calling it a “decisive step in defending the integrity of education,” Pinkney said the program diverts $82.5 million in taxpayer money toward private schools. She said public schools in the state are experiencing teacher shortages and have scarcity of resources as it is.

“It siphons critical resources from already underfunded public schools to pay for private schools,” said Pinkney, adding that she thought it was “a deliberate undermining of public education.”

When asked to respond to an argument proponents of school choice make — that it opens up more choices for families — Pinkney said the organization opposes public tax dollars being used for private schools.

Utah Senate President Stuart Adams, R-Layton, said in a statement that school choice gives children the ability to thrive academically.

“Our commitment to public education is clear: from 2014 to 2024, Utah state education funds increased by $2.5 billion, a 94.7% increase. We learned during COVID that parents needed more options for their kids,” said Adams. “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. The scholarship program is a transformative step toward providing comprehensive educational opportunities for all Utah students.”

Adams said, “Supporting this scholarship means advocating for a future where educational choice is a right, not a privilege.”

Robyn Bagley, executive director of Utah Education Fits All program, released a statement expressing condemnation of the suit, calling it “noisy activism and a shameful attempt to strip away education options from students and families in Utah.”

The Utah Education Fits All group describes itself as a “nonprofit advocacy watchdog for the Utah Fits All Scholarship Program” and isn’t the manager of the voucher program.

“We’re very confident their efforts will not succeed,” said Bagley. “Utah’s legislature did its due diligence to pass responsible legislation that was consistent with Utah’s Constitution.

Bagley said she believes parents and children should have access to education that fits their families’ needs. “We’re in a new day of centering the agency of families in education and look forward with optimism to that movement growing in Utah and beyond,” continued Bagley.

Labresh, one of the plaintiffs who is a Davis County resident and school psychologist, told the Deseret News in an interview that he joined the suit because “this hits me on multiple levels, both as a parent and as a school psychologist in a public school district.”

Labresh said he has a son who receives special education services and before he went to public school, he was kicked out of a couple private preschools. “They were very upfront that they just didn’t have the resources or the training to able to deal with him,” said Labresh.

When Labresh’s son received access to a psychologist, counselor and qualified teachers and paraprofessionals in the public school system, Labresh said his son was able to get individualized support. He thinks students in need of special education services are disproportionately harmed by the public education system because the private setting isn’t under the same regulations.

“I want to be clear that my argument is not with school choice,” said Labresh. “I’ve worked with a lot of families with students who have been successful in another setting. ... My main struggle is with how that choice is being funded, and I don’t think it should come at the expense of our public education students, which makes up over 90% of Utah children.”

Lear, a member of the Utah State Board of Education, spoke as an individual. She’s also a plaintiff in the suit. Lear said the voucher program isn’t supervised by the board in the same way public schools are.

“Teachers are closely monitored,” said Lear. “They have to have background checks and meet certain competencies to be teachers, and none of that applies to this voucher program.”

“It is disappointing that the UEA is putting politics above meeting students’ and teachers’ needs,” said Sen. Kirk Cullimore, R-Draper. He said he’s confident that the program is constitutional and that it doesn’t take away money from public education.

“Utah boasts some of the finest public schools and most dedicated teachers in the nation, and we in the Legislature remain dedicated to providing our public education institutions with the utmost support. However, 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,” said Cullimore. “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.”

Support for school choice across the state

In 2007, Utah voters put a school voucher law up to a vote and defeated it. Sixty-two percent voted against school choice and 38% voted in support of it.

Since then, there hasn’t been an equivalent vote, but there’s been some survey data that shows Utahns are mixed in their support for school choice. A Deseret News and Hinckley Institute of Politics poll in 2023 indicated that 49% of Utahns support school choice, 45% said oppose it and 6% said they don’t know what they think about it.

While some oppose school vouchers for reasons listed earlier this article, others support the policy. Christine Cooke Fairbanks, education policy fellow at Sutherland Institute, said she thinks the three most compelling arguments for school choice are students can get an individualized education, parents can be involved in a meaningful way and it shows a commitment both to education and pluralism.

“It’s a broader commitment to saying that we want an educated younger generation, and they’re going to be those who serve us later,” said Fairbanks. “And however, we can meet their needs, that’s the important part.” She said students who need special services, who have unique interests or skills or who are at risk often benefit from school choice.

“Lower-income students unfortunately don’t have the same education choices that students from wealthier families do,” said Fairbanks explaining that you can create opportunities through legislation for these students to have access to better schools for them.

Opponents of school choice will sometimes say it doesn’t give the state or federal government enough oversight. Fairbanks said accountability is important and there are mechanisms in place for school choice programs to be accountable to taxpayers and parents.

“As far as academic accountability and oversight, parents can observe how their students are doing and make choices and have more autonomy there to do whatever is best for them — whatever they’re needing.”