Public school activists’ lawfare will head to the Ohio Supreme Court

Four years ago, public school activists launched a full-scale attack on Ohio parents’ freedom to make educational choices on behalf of their children. In addition to an aggressive PR campaign, they filed litigation seeking to destroy Ohio’s flagship private-school-choice program, known as EdChoice. As of 2025–26, the program served 148,732 Ohio students. These students received scholarships worth an average of $5,497, or roughly one third of the $17,739 per-pupil spent by traditional school districts.

Led by plaintiff school districts, the EdChoice lawsuit was first filed in 2022. Last year, a Democratic Franklin County trial judge sided with the plaintiffs. The decision was appealed, and earlier this month, a three-member court (all Democrats) ruled again in favor of the districts. The panel “stayed” its decision, thus allowing the program to remain intact as the case heads to the Ohio Supreme Court.

The appellate court ruled that EdChoice offends the state constitution in two ways: 1) it “secures” a system of “uncommon schools” and 2) it “undermines” the “financial integrity” of public schools.

Here at Fordham, we’ve debunked the fiscal argument on many occasions. The most recent funding data continue to demonstrate its weakness.

• Over the past decade, school district spending has surged to record levels. In 2025–26, Ohio school districts spent $17,739 per pupil, or $25.5 billion.[1] This amount exceeds districts’ inflation-adjusted per-pupil spending in 2020–21 ($16,453) and 2015–16 ($15,877). It’s also far more than what districts spent during the 1990s when the DeRolph school funding case was working its way through Ohio’s courts.

• Of the $25.5 billion spent in 2025–26, the State of Ohio contributed $9.9 billion through direct state aid. Another $8.1 billion was generated by districts through a state-required 20-mill property tax.[2] Taken together, these two state funding mechanisms ensure that all Ohio districts have sufficient baseline aid to educate students.

• Looking at spending in the five named plaintiff districts, we find that Barberton spent $19,430 per pupil in 2025–26; Cleveland Heights-University Heights, $27,820 per pupil; Columbus, $25,095 per pupil; Lima, $18,977 per pupil; and Richmond Heights, $22,081 per pupil. If districts that spend this much are feeling financial pressure, it’s not because of inadequate revenue. It’s their own poor fiscal management.

The appellate court’s “uncommon schools” argument was not prominently featured in the trial court opinion, but its reasoning is flawed for the following reasons.

1. The Ohio Constitution and relevant case law do not forbid the General Assembly from supporting “uncommon” schools that operate independently from the public school system. In fact, there is even language in the Ohio Constitution that urges legislators to “encourage” schools that promote “religion, morality, and knowledge”—elements that are more prominent in the curricula and programs of Ohio’s private schools than in the modern public school system.[3]

2. There are strong policy reasons for supporting “uncommon schools” that cater to students’ individual needs. If children were widgets, a singular, one-size-fits-all public school system might make sense. But children are not widgets. Ohio parents and students deserve multiple educational options, so they can secure a school that aligns with their unique needs, beliefs, and values—exactly what the EdChoice program facilitates.  

3. Nevertheless, the appellate court accuses “uncommon” private schools of depriving parents of choice. They deliver this whopper of a line: “EdChoice schools are uncommon in the way that they actually end up depriving families of choice.” Huh? Tell that to the thousands of working-class Ohio families who rely on state scholarships to enroll their child in a private school.

4. The court goes on to fault private schools for “cherry picking” students. The judges offer no empirical evidence of systemic “cherry picking,” but it is true that some private schools have selective admissions. Yet if non-selective admissions were a requirement of a “common school,” Ohio’s suburban school districts would be suspect as they deny students based on residential addresses. So would public schools such as Walnut Hills in Cincinnati or Stivers in Dayton, which admit students based on their academic track record and auditions.

5. The appellate court further argues that private schools are “uncommon” because relatively few are located in rural Ohio. Private schools are certainly more plentiful in densely populated urban areas, but students from 594 of the state’s 607 school districts participated in EdChoice last year. In my neck of the woods (rural Wayne County), nearly 1,000 students attended private schools via scholarships. And if the concern with EdChoice is truly its geographic scope, there is a remedy at hand: Create grant programs that help seed private schools in less-served parts of Ohio.

6. Finally, the judges argue that private schools are “uncommon” because they face less oversight and accountability. The argument is flawed on various grounds. First, the EdChoice scholarship is—as noted at the top—worth just a fraction of the per-pupil funding districts receive. Their lightened regulatory load is consistent with smaller amounts of public funding. Second, scholarship-accepting private schools must administer state exams, or a state-approved alternative, with test results reported publicly (including growth data coming soon, as well). Third, accountability cannot be a constitutional requirement of a “common school,” as the public school system faces virtually no accountability of its own. For instance, chronically underperforming districts and district-run schools operate without serious state intervention or penalty. This is bad policy, of course, but is an accountability-free public school system unconstitutional under the appellate court’s theory? Fourth, private schools operate with more accountability to families. When parents are dissatisfied, they leave and take their scholarship and (if applicable) tuition with them. When students disenroll in a public school, there are no financial consequences. The district keeps all its local tax revenues while “guarantees” shield it from reductions in state aid.

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Ohioans provide more than $25 billion each year to support traditional school districts—a well-funded and constitutional system that ensures that every child across the state has at least one educational option. That singular option, however, may not work for every child. That’s precisely why Ohio lawmakers have promoted, supported, and expanded the educational options available to families. With any luck, the Ohio Supreme Court will soon put an end to the malicious lawfare against private schools—and the families who choose them.