Ohio’s EdChoice Ruled Unconstitutional, but Still Allowed to Continue

Ohio’s school choice program, EdChoice, is being appealed to the state supreme court.

While the 10th District Court of Appeals, which heard the case in May, ruled unanimously on Thursday that the program is unconstitutional, EdChoice is still allowed to remain in place while Attorney General Andy Wilson appeals the decision.

The decision from Wilson, who took office in June, speaks to not only the choice of parents, but also the authority of the Legislature.

“Although 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,” he reassured Ohioans about the decision.

“I believe that parents should have the option to send their kids to the school of their choice. If the legislature wants to help parents fund that choice, then that is within the authority of the General Assembly to do so,” the statement also mentioned. “The current system does not hurt our public schools. There are many great public schools across the state that are doing a wonderful job educating students. This is about a family’s choice on how they want to educate their kids.”

The three judges on the panel expressed their concerns about separate programs and a lack of oversight, with Judge David Leland writing that the program is unconstitutional and is in violation of a constitutional mandate for a singular public education system. There are also concerns for rural students not in the program.

Many of Ohio’s school districts have taken issue with the program and joined the lawsuit against it, also expressing concern for taxpayers. A statement from the Columbus-based Center for Christian Virtue pointed out that the lawsuit was “filed by a coalition comprising fewer than half of Ohio’s public-school districts” and that “plaintiffs strategically filed their case in lower courts that are historically favorable to their claims.”

The center, which has made school choice a considerable focus area with the Ohio Christian Education Network, released a lengthy statement from Troy McIntosh, executive director of that network.

“This ruling represents an egregious example of judicial overreach that threatens to disrupt the education of 180,000 Ohio students who rely on EdChoice to access high-quality educational options beyond their assigned public school,” McIntosh said. “Ohio is facing a severe educational crisis, with two-thirds of public school eighth graders failing to achieve reading proficiency and three-quarters falling short in mathematics. The loss of EdChoice would threaten to strip away one of the most effective tools created by elected leaders to reform and improve Ohio’s education system.”

EdChoice was first developed in 2005 as a pilot program. When the Legislature expanded the program in 2023, the move was applauded by The Heritage Foundation’s Jason Bedrick at the time and earlier this year.

The case’s path to the supreme court is hardly a shocking one. Republican Gov. Mike DeWine pointed out that the latest decision was legally wrong. “Everybody knew when the suit was filed that it would end up in the Ohio Supreme Court,” he said.

McIntosh also believes the Ohio Supreme Court will play a role, as he used his statement to make a pitch about upcoming elections.

“Based on the merits of the case and the current composition of the Ohio Supreme Court, we anticipate that the court will reverse the appellate decision and uphold the constitutionality of the EdChoice program,” he said.

“Nevertheless, this situation underscores the vital importance of Christians participating in the democratic process. In the upcoming November elections, Ohio voters will select two Supreme Court justices and an Attorney General who will oversee the State’s defense of the program. We urge families committed to educational freedom to remain informed on candidates’ positions as they head to the ballot box.”

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