Private school voucher lawsuit heads to Ohio’s 10th District Court of Appeals

A lawsuit that has been active since 2022 will now go before the 10th District Court of Appeals, as attorneys for more than 300 public school districts and advocates defend an attempt to force the state legislature to eliminate funding for the private school voucher program.

Public school advocates are against the state funding of private school vouchers, partly because they argue the program funding has overtaken that of public schools.

The Ohio Constitution includes a provision requiring the state to fund a single system of public schools. The lawsuit argues that the private voucher program represents an unconstitutional funding of a second system of education.

The lawsuit also argued that the program violated the equal protection clause in the constitution.

Schools including Cleveland Heights-University Heights, Columbus, Richmond Heights, Lima, and Barberton were signed on to the lawsuit, along with individuals and parents.

SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

The case landed in the Franklin County Court of Common Pleas, where Judge Jaiza Page said the legislature has “exceedingly broad powers” in its authority over the state’s education system, but the power does not come with “unlimited discretion.”

Supporters of private school vouchers argued that it is a scholarship program, and does not purport to be a “system” of schools, something Page didn’t buy in the June 2025 decision in which Page said the voucher program was unconstitutional.

Calling vouchers a scholarship program “is mere semantics” because the state pays schools directly, the judge wrote.

“Where EdChoice participating private schools are inexplicably receiving double the per-pupil state funding than public schools, it is difficult to say that EdChoice is simply a scholarship that follows and/or benefits the students, as opposed to a system that benefits private schools,” Page wrote in 2025.

The judge didn’t make a decision on one claim in the lawsuit: that the voucher program created “segregation” in public schools.

Page wrote that there was no evidence of “discriminatory intent,” and denied the request for a summary judgment from both sides of the lawsuit, meaning the claim is still active and awaiting a ruling in the Franklin County court.

Anticipating the rest of the lawsuit would be appealed, Page allowed the program to continue “in recognition that this decision may cause significant changes to school funding in Ohio.”

The parties in the suit have appealed, with the state and private school advocates appealing the rulings that the voucher program is unconstitutional, that it creates more than one “system of uncommon schools,” and that the direct payments from the state allows unconstitutional funding for religious schools.

Attorneys for private school parents maintain their argument that it is “a scholarship program, not a school-funding program,” according to appeals court documents.

“It therefore cannot run afoul of any prohibition against funding ‘uncommon schools,” wrote attorney Keith Neely, of the Institute for Justice, a DC-based law firm representing private school parents.

Public school advocates are cross-appealing, pushing back against the one ruling for which Page sided with the state.

Page ruled that there was no evidence that the voucher program in Ohio creates a disparity in education.

“While it seems inevitable that some Ohio students might be excluded from the EdChoice program by a participating private school, none of student plaintiffs have alleged or provided any evidence of denial of participation in the EdChoice program,” Page wrote.

Cleveland-based attorneys Maria Fair and Mark Wallach argued in a brief to the appellate court that “there is no valid governmental interest in funding private education, much less seeking parity between public and private resources.”

“The cycle never ends: The state insufficiently funds public schools, which are then forced to seek local tax levies or apply for private grants,” the attorneys wrote.

“The state then diverts more taxpayer dollars to private entities, justifying this by citing those very same levies and grants.”

The case is scheduled to go before the 10th District Court of Appeals on Tuesday morning.

SUPPORT: YOU MAKE OUR WORK POSSIBLE