Ohio Courts Invalidate Parental Educational Choice Program

Ohio Courts Invalidate Parental Educational Choice Program:

Appeal Sure to Follow

Charles J. Russo

The latest front in the battle to protect the God-given parental right to direct the educational upbringing of their young because “the child is not the mere creature of the state” affording them genuine choices as to where their offspring attend school is playing out in Ohio. On October 15, 2026, a unanimous-three judge appellate panel, in Columbus City School District v. State of Ohio, affirmed an order invalidating the state’s Education Choice Scholarship, or EdChoice. According to the court, the Program violated article VI, § 2 of Ohio’s constitution mandating the creation of “a thorough and efficient system of common schools throughout the state.” Like the trial judge, though, the appellate panel stayed its order pending review by the Supreme Court of Ohio.

In light of the potential ripple effect Columbus City might have on school choice programs nationally, this column begins by briefly highlighting the appellate panel’s rationale for invalidating the EdChoice Program. The second part offers analysis and commentary on the significance of Columbus City Schools for parental freedom of educational choice in the ongoing fight to ensure that they can select religious schools as the places where their children can be educated under state programs offering generally available aid.

Columbus City School District v. State of Ohio

Background

In its landmark 2002 decision in Zelman v. Simmons-Harris the Supreme Court upheld Ohio’s Pilot Project Scholarship Program as part of the state’s far-reaching attempt to provide greater educational opportunities to assist children in Cleveland’s failing public schools. The Court refused to invalidate the program because it was available to both religious and secular beneficiaries on a nondiscriminatory basis by offering assistance directly to a broad class of citizens. The Court ruled that the program satisfied the Establishment Clause in aiding the faith-based schools the majority of children attended because it was based on neutral secular criteria neither favoring nor disfavoring religion. The Court added that the program was permissible because it directed state funds to the faith-based schools through the private, genuine, independent choices of parents, rather than direct governmental endorsement or allocation.

Spurred on by Zelman, EdChoice, originally adopted in 2005, was initially named the Cleveland Pilot Program. The program was initially designed to allow low-income parents to move their children out of the city’s failing public schools into non-public schools by providing eligible students with a limited number of state taxpayer-funded scholarships in participating schools.

Since 2005 the Ohio General Assembly has greatly expanded the EdChoice program. In fact, Ohio presently spends almost $1.4 billion on the program because it is now available to just about all students, regardless of family income or the quality of local public schools they attend.

Judicial Opinions

In the initial round of litigation, a coalition led by the school board in the state capitol, Columbus, joined by those in Cleveland Heights-University Heights, Richmond Heights, Lima, and Barberton along with the Ohio Coalition for Equity and Adequacy of School Funding and parents challenged the EdChoice Program. A state trial court invalidated the program largely for violating Ohio’s constitutional mandate of providing a thorough and efficient system of common schools.

On further review, relying on state law, the appellate panel very briefly acknowledged two of the three United States Supreme Court cases relevant on aid reviewed later in this column without any substantive discussion of how they might have changed the outcome. As such, in an order that largely reads as though it was written by an attorney for the plaintiffs, the panel affirmed in their favor but, as noted, stayed its order pending a judgment by the Supreme Court of Ohio. As such, because this is not the final order, this case analysis is brief.

In all but totally ignoring United States Supreme Court opinions to the contrary, the appellate panel offered two primary reasons for striking down the EdChoice Program. First, the court contended that the program violated the state constitutional mandate of providing a single system of public schools because it lacked meaningful state oversight and was unavailable to residents in rural areas whose parents helped to pay for its operation as taxpayers. Second, the court objected to the program’s granting officials in participating schools too much discretion in selecting students. The court rejected this feature as creating a financial hardship by siphoning children and money from public schools, impacting their ability to raise funds through local voter supported levies. In an argument that is weak at best, the court also feared that OhioEdChoice “gives voters less reason to approve local school levies” supporting public education.

Responding to the court’s judgment, Ohio Attorney General Andy Wilson said “[a]lthough we are disappointed in the ruling, we appreciate that the court stayed its decision, so the EdChoice program will continue uninterrupted as we appeal to the Ohio Supreme Court. Families should not worry, as there is no immediate impact from the ruling.”

Analysis and Commentary

The appellate panel’s forty-page opinion was disingenuous at best in completely ignoring the first of three major recent Supreme Court cases in which Chief Justice Roberts authored all of the majority opinions upholding aid to faith-based institutions and/or persons by focusing on the Ohio constitution. In what must be treated as borderline incomprehensible, the panel completely ignored 2017’s Trinity Lutheran Church of Columbia v. Comer, Missouri officials reject the Church’s application to participate in a program designed to enhance playground safety for children in its preschool solely because it was a religious organization. Ruling in favor of the Church, Chief Justice Roberts, ushering in a new era on aid, pithily emphasized that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

As to the other two cases, the Ohio panel cited the Supreme Court’s order in 2020’s Espinoza v. Montana Department of Revenue, but said nothing substantive about its outcome. In Espinoza the Court invalidated a state constitutional provision limiting aid to faith-based institutions in the form of a tuition tax program allowing individuals and organizations to save money tax free to pay for educating children in non-public schools. Reversing in favor of the plaintiffs and upholding the program, the Court decided that because it was permissible under the Establishment Clause, the contested state no-aid provision impermissibly discriminated due to religious status. The Justices recognized that the disputed language sought to separate church and state more strictly than the Federal constitution. However, the Court invalidated the provision because it could not satisfy strict scrutiny analysis, the highest form of constitutional review insofar as Montana lacked a compelling governmental action its creating this prohibition.

Most recently, in 2022’s Carson v. Makin the Supreme Court addressed a program from

Maine that provided tuition assistance to parents in public school districts lacking their own secondary schools. The Court invalidated the program’s “nonsectarian” requirement on the basis that it would have banned faith-based schools from participating by violating the Free Exercise Clause insofar as it was neither neutral toward religion nor did it afford parents the opportunity to send their children to the schools of their choice. In its only statements about Carson the panel wrote “that nothing in that decision, or its precedents, required states to fund religious education.” The court did correctly observe that Espinoza and Carson stand for the proposition “that once a state makes a benefit available, the state could not then discriminate against religious schools” even in ignoring Trinity Lutheran’s declaration that faith-based institutions cannot be treated as second class because they are religious in nature

On a related point, one must wonder why Ohio officials, rather than invest so much time and energy in opposing funding better, more creative ways to educate students, spend so much energy trying to prevent parents from becoming true partners in educating their children. In this regard, as noted, the Ohio Choice program is a later version of the plan the Supreme Court upheld in 2002’s Zelman v. Simmons Harris.

In Zelman the Supreme Court upheld a plan designed to permit parents mostly from low-income and minority families, to participate in a program to move their children out of Cleveland’s public schools that the state took over because they had done such a poor job of educating students. The program afforded parents two choices to escape Cleveland’s failed public schools, thereby affording them opportunities for success: they could either transfer their children to neighboring public school districts bordering on Cleveland or use vouchers to send their children to participating schools.

Because none of Cleveland’s neighboring public school districts were willing to accept

any children from the inner city, parents used the vouchers. Although the vouchers did not cover the full cost of tuition, the mostly Roman Catholic schools participating welcomed the students in their schools without any additional charges. The Court upheld the program because when, as in the current Ohio Choice Plan, parents sent their children to the faith-based schools they did so based on their own free choices rather than because state law mandated that they do so.

Returning to the current controversy in Ohio, given the choice of leaving their children in poor performing public schools or moving them to locations where they could succeed, what parents would not welcome opportunities to afford their young greater chances to excel? There can be no doubt that American public schools have had a great deal of success in educating the Nation’s youth and remain vital to the country’s well-being in continuing to develop an educated citizenry. Yet, not all public schools are succeeding, as witnessed by how poorly American children compare to other Nations as evidenced by ranking 31st overall while placing 9th in reading literacy, 12th in science, and 28th in mathematics something must change. Lawmakers have thereby devised innovative programs affording parents greater voices in selecting where their children can be educated.

In an ironic twist, opposition to laws such as Ohio EdChoice are typically led by union leaders such as Randy Weingarten, president of the American Federation of Teachers, the same people one would hope are looking out for the best interest of children. While it is understandable for union leaders to be pro-labor it is still disconcerting that Weingarten is so outspoken on refusing to help children in need.

Weingarten, and her minions, who has long been absolutely opposed to affording parents any say as to where their children can be educated, continues to oppose efforts to help “the least among us” at their time of (educational) need as their parents seek to exercise free choices to help their young escape failing mostly urban, schools. The upshot is that poor, mostly minority children are condemned to inadequate learning opportunities often leading to lives of poverty because they are denied better paying job opportunities.

It is at points like this, that one can cynically wonder about opposition to school choice as reflected in Ohio’s EdChoice Program. The actions of critics cannot help but to lead those who wish for what is best for children by affording them opportunities to escape the all too common cycle of poverty youngsters experience in public schools to wonder whether opponents are more focused on preserving the jobs of members, and their own perceived “power,” rather than the needs of students.