The special interests defending the education status quo have lost the battle for hearts and minds on school choice. Families across America are demanding education freedom, and state legislatures are delivering it. But rather than adapt or improve, these groups are now weaponizing the courts in a last-ditch effort to shut down competition.
Their latest wave of lawsuits claims that school choice programs violate state constitutions by diverting funds from the mandated “system of public schools.” Their argument is as flimsy as it is desperate.
Every state constitution has an education clause requiring the legislature to provide for public education. These special interests argue that such a clause means taxpayer dollars can go only to public schools, and anything else, such as vouchers, tax-credit scholarships, or education savings accounts, is unconstitutional. But their claim falls apart under basic scrutiny. If their logic held, school choice wouldn’t exist anywhere. Yet, programs have thrived for decades in states with nearly identical constitutional language.
Take Arizona, where school choice has been expanding since the 1990s. Its constitution requires the legislature to “provide for the establishment and maintenance of a general and uniform public school system.” Arizona’s Empowerment Scholarship Accounts allow families to use taxpayer funds for private schools, homeschooling, and more — without any constitutional crisis.
Oklahoma’s constitution is even more straightforward: “The Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated.” Despite this language, Oklahoma has had tax-credit scholarships since 2011 and recently expanded to universal choice. No court has struck it down on these grounds.
Florida’s constitution emphasizes a “uniform, efficient, safe, secure, and high quality system of free public schools.” Florida has one of the nation’s most robust choice ecosystems, including vouchers and tax-credit scholarships dating back to 1999.
Louisiana’s clause states: “The legislature shall provide for the education of the people of the state and shall establish and maintain a public educational system.” Louisiana’s voucher program, launched in 2008, has survived multiple challenges, including a 2013 state Supreme Court ruling that focused on funding mechanisms but didn’t invalidate the concept of choice itself.
These examples prove that similar language hasn’t blocked school choice elsewhere.
The latest front in this lawfare is Idaho, where the Idaho Education Association sued to block the Parental Choice Tax Credit program, a $50 million initiative providing up to $5,000 per child (or $7,500 for special needs) for private tuition, homeschooling, and other expenses. Passed in 2025, it’s already seen over 4,650 applications for more than 7,300 students. The suit argues it violates Idaho’s constitution, which requires a “general, uniform and thorough system of public, free common schools.”
But during oral arguments before the Idaho Supreme Court in January, the justices weren’t buying it. Justice Gregory Moeller nailed the absurdity, asking why the constitution would treat the state as if it “can’t walk and chew gum at the same time.” In other words, Idaho can maintain its public schools while also empowering families with choices.
The requirement to provide A (public schools) doesn’t preclude providing A and B (public schools plus options). That principle echoes the U.S. Constitution, which explicitly calls for an army and a navy — but that hasn’t stopped us from adding an air force and a space force. The founders set a foundation, not a straitjacket.
School choice doesn’t create a rival “system of schools.” It simply lets taxpayer dollars follow the child to the best fit, whether public, private, or home-based. Claiming otherwise is like saying food stamps create a new system of grocery stores. Food stamps just allow low-income families to shop where they choose — taxpayer funds follow the person, not the institution. The same goes for Pell Grants, which students use at private or religious colleges without anyone claiming they establish a “system of universities.”
If the special interests’ logic prevailed, we’d have to abolish a slew of other state programs. In Idaho alone, the Idaho Launch Program provides grants of up to $8,000 to help high school graduates pursue education or training at public or private institutions. During the Supreme Court arguments, justices pointed out that invalidating the tax credit could doom Idaho Launch and even public tutoring programs.
Special interests are also pushing similar “uniform system” arguments elsewhere. In Wyoming, a judge halted a voucher program in 2025, citing the constitution’s mandate for a “complete and uniform system of public instruction.”
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These lawsuits are the special interests’ next tool after failing to block choice in legislatures. They’ve lost the policy debate because families know one-size-fits-all government schools aren’t working. School choice empowers parents, improves outcomes, and forces public schools to compete and get better. But competition threatens their power, so they’re resorting to lawfare to protect their monopoly.
It’s time to call their strategy what it is: a cynical ploy to trap children in failing schools. Families deserve freedom, not forced assignment based on ZIP code. As more states embrace choice, these arguments will crumble — just as they have for decades elsewhere. Education freedom is here to stay.
Corey DeAngelis is a senior fellow at Americans for Fair Treatment and a visiting fellow at the American Institute for Economic Research.