Utah teachers union sues over state’s $82 million school voucher program

The Utah Education Association announced the lawsuit Wednesday that seeks to stop the Utah Fits All Scholarship from starting this fall.

The state’s largest teachers union has filed its much-anticipated lawsuit trying to shut down Utah’s newly launched voucher program that is set to siphon more than $82 million from public schools.

Leaders of the Utah Education Association announced the challenge Wednesday morning, standing on the steps outside the Matheson Courthouse in Salt Lake City and vowing to fight the voucher system they say is unconstitutional.

“It is a deliberate undermining of public education,” shouted UEA President Renée Pinkney, surrounded by parents and teachers. “… Utah already spends less on public school students than almost any other state.”

And now even more taxpayer money, Pinkney said, will be pulled from those underfunded Utah schools — second to last in the nation behind only Idaho — and shuffled to private schools and homeschooling under what’s been billed as the Utah Fits All Scholarship.

“Our only option was a lawsuit,” she said.

The controversial Republican-led voucher proposal was initially pushed through in just 10 days during the 2023 legislative session. At that point, it was already the largest school voucher program in state history with an initial allocation of $42.5 million. But that price tag was nearly doubled this year to accommodate even more students.

With the initial rollout slated for this fall, it’s set to fund nearly 10,000 students who have each been awarded up to $8,000. Families can use that money to send their kids to private school, home-school them or get reimbursed for a wide range of educational-adjacent expenses, including things like piano lessons or ballet.

Rep. Candice Pierucci, R-Riverton, who sponsored the original legislation, said the vouchers are meant to give families more choices to fit the learning style of their kid; and the scholarships are prioritized for those in lower-income households. She responded to the suit Wednesday, saying she stands by the program “and will continue to advocate for individualized learning.”

She said public education is still being funded, and “the union’s scarcity mentality, and unwillingness to prioritize Utah children, shows just how out of touch they are with Utah parents and students.”

The amount of the maximum scholarship, though, is nearly double what a student is traditionally designated in Utah’s public school system under what’s called the weighted pupil unit, or WPU, which is currently set at roughly $4,400 per child.

The Utah Education Association had indicated as soon as the voucher bill passed that it intended to explore “every option available to overturn this damaging legislation.” Pinkney said the hope is that filing the lawsuit now will give the court time to block the initial awards from starting this coming 2024-25 school year.

The association is asking for a permanent injunction with its filing in 3rd District Court.

“This is public tax dollars being used for private schools,” Pinkney said. “And we will not compromise our values.”

(Chris Samuels | The Salt Lake Tribune) Utah Education Association president Renée Pinkney speaks to media outside the Third District courthouse in Salt Lake City, Wednesday, May 29, 2024. The teacher association announced a lawsuit Wednesday to challenge the recently implemented Utah Fits All voucher program.

The lawsuit names as defendants Utah Gov. Spencer Cox, who signed the bill into law, as well as Utah Attorney General Sean Reyes and the Alliance for Choice in Education (ACE), which is the organization chosen by the Utah State Board of Education to manage the voucher program.

Cox’s office declined to comment on the “active litigation,” as did a spokesperson for ACE. Reyes’ office did not respond to a request from The Salt Lake Tribune for comment.

Voucher isn’t open to all students, lawsuit argues

UEA is fighting the voucher program by alleging it violates several provisions of the Utah Constitution that require the state to establish an education system equally accessible to every child.

Under Utah law, it says that system must be “open and free to all,” a standard set in 1895. The lawsuit emphasizes that, adding: “Utah’s commitment to free public education is older than the state itself.”

The teachers union argues that the state creating a publicly funded voucher program with money that goes to private schools — where scholarships likely won’t cover the entire cost of tuition — means the system supported by Utah is now no longer free.

The average cost for a year of private school in the state is more than $10,000, according to Private School Review.

Additionally, the state is supporting a program that the union says is not open to all because not everyone is accepted.

There were 15,914 applications submitted for the initial voucher rollout, representing 27,270 students (some families submitted one application that included multiple siblings). Of those, 9,890 scholarships were granted (all went to low-income families).

But that means 64% of students who applied for a voucher were denied.

And, outside of that, parents already have the choice to move around within Utah’s public education system, where there is open enrollment for district schools and 120 charters to accommodate different needs and learning styles.

But private schools, meanwhile, are allowed to not accept a student based on disability, religion, politics, academic performance and more, the lawsuit states. So by not accepting and enrolling everyone who applies, it’s not an open system.

Kevin Labresh, a parent who has joined the UEA as a plaintiff on the case, said he experienced that firsthand with his son.

He tried enrolling his son, who has special educational needs, in two private preschools. The boy was kicked out of both, he said. Labresh tried two more, who declined to accept his son because of his disability, the father said.

Labresh said when his son was briefly enrolled, the private preschools didn’t provide the support the boy needed to learn; they are not required, by law, to offer the same services for students with disabilities that a public school is mandated to.

When the father transferred him to a public preschool in Davis School District, “it was a complete 180.” The public school, as required, set up an individual plan to give Labresh’s son special resources.

Labresh said it’s a discriminatory setup for students with disabilities that relies on state funds. He is joined by another parent, Terra Cooper, with a student who has ADHD.

“It’s an issue of equity,” Labresh said, saying students with disabilities are left behind.

Union says the program will hurt public schools

Similarly, the state constitution earmarks income tax revenues— which are used to fund education in Utah — for limited and certain uses. Including recent changes, those are: public K-12 schools, public higher education and social services (primarily supporting kids with disabilities).

The UEA argues the voucher program falls outside of those categories. The lawsuit says the voucher program saps money out of public schools for students to use in private school or home schooling, which is not allowed under the law that specifies the money is supposed to be for public education. And it may or may not serve students with disabilities.

Overall, diverting those funds, according to the filing, harms public schools, which are granted money based on how many students they enroll.

Pinkney said she’s already aware of one public school district eliminating programs and looking at cutting staff because of the expected loss of students due to the vouchers; she declined to name the district.

“Our schools have so many unmet needs already,” she said. “… Instead of siphoning funds from public schools, we should be investing more in them.”

Currently, about 95% of Utah students are served by the public education system.

Amy Barton, a public school teacher in Washington County School District, joined the lawsuit to say she’s worried that the program will severely limit public schools, leaving them with even fewer resources to serve students.

“The voucher program will harm public schools and undermine the work of public school teachers,” the lawsuit says. The UEA also represents roughly 18,000 educators and staffers, who the union says stand to be hurt by the measure.

Labresh, who is also a school psychologist, agreed and is also representing school staff.

He said national standards recommend one school psychologist per every 500 students. Currently, in Utah, the ratio at public schools is one psychologist for every 2,000 students, meaning psychologists like him are covering four times as many students as recommended in a state that’s one of the highest for youth suicide and depression. That ratio, he fears, will worsen with reduced funding.

“My colleagues and I are stretched thin,” he added.

Should the state school board have control?

The lawsuit also includes Carol Lear as a plaintiff; she’s been a member of the Utah State Board of Education since 2016.

Lear, a Democrat, argues that the voucher program unconstitutionally wrests control of education from the state school board, which is charged by law with overseeing and setting policy for all of public K-12 schooling. The Utah Constitution grants that power, noting the board specifically has “general control and supervision of the public education system.”

The only role the state school board has had with the vouchers, though, was selecting the program manager, ACE, a private entity. Outside of that, the board has been cut out — despite a brief but messy rollout with the provider.

Even complaints about the voucher program, which were originally supposed to be handled by the state board, were redirected this year with an amendment to the bill to also go to ACE, according to the lawsuit.

Because the program uses public funds, the lawsuit argues the publicly elected school board should have some oversight.

Lear, who has been both a public school teacher and an education lawyer, said the program is “the worst school voucher” she’s ever seen. “There’s no accountability,” she added.

(Chris Samuels | The Salt Lake Tribune) State Board of Education member Carol Lear speaks to media outside the Third District courthouse in Salt Lake City, Wednesday, May 29, 2024. Lear joined the Utah Education Association by filing a lawsuit Wednesday to challenge the recently implemented Utah Fits All voucher program.

The state has two existing vouchers that are specifically designated for students with special needs; both of those have state school board involvement. But the Utah Fits All Scholarship doesn’t have any similar safeguards.

Lear noted that private schools in the state are not held to the same financial reporting requirements as public schools; there’s nothing stopping a private school, for example, from selectively raising the tuition of a voucher student to collect more money, according to the filing.

And the academic requirements and the licensure standards for teachers are also unregulated for private schools. The lawsuit claims: “The voucher program does not require qualifying providers to provide sound basic education, satisfy any academic standards, or prepare students for higher education or the workforce. They may instruct students in pseudoscience, conspiracy theories, or nothing at all.”

But Sen. Kirk Cullimore, R-Sandy, who cosponsored the measure, has defended the bill as having the necessary checks, including requiring students on the scholarship to either submit a portfolio at the end of the school year to show what they have learned or to take an opt-in assessment. There will also be annually required audits, he noted, for the program manager.

“It is disappointing that the UEA is putting politics above meeting students’ and teachers’ needs,” he said Wednesday. “I’m confident in the constitutionality of this program.”

Lear challenged that, too, saying the Republican super-majority in the Legislature pushed through the measure when most residents didn’t want it.

“They made a deal with the devil,” she suggested.

She pointed to a similar voucher passed in 2007. Residents rallied to put a referendum on the ballot to rescind the measure, and they won; more than 62% of Utah voters sided with the repeal effort.

But because the Utah Fits All Scholarship collected a two-thirds majority of votes when passing both the House and the Senate — which occurs any time that most of the state’s GOP-dominant lawmaking bodies support a measure — Utah law states that voters cannot launch a recall effort on the bill.

Lear feels the lawsuit from the union was left as the only possibility to give both Utah teachers and residents of the state a voice.

(Chris Samuels | The Salt Lake Tribune) A Utah Education Association logo is seen outside the Third District courthouse in Salt Lake City, Wednesday, May 29, 2024. The teacher association announced a lawsuit Wednesday to challenge the recently implemented Utah Fits All voucher program.