Education choice in court. What do current lawsuits mean for the future?

• Legal challenges are nothing new to education choice programs like vouchers, education savings accounts, or tax credit scholarships.
• Constitutional challenges have largely shifted away from Blaine amendments to new challenges that focus more on obligations to public education, education spending, and legislative authority.
• Notwithstanding these lawsuits, education choice is likely to thrive overall.

Last month, news coverage popped up about Muslim schools and families suing the state of Texas in federal court because it refused to allow certain Muslim schools to participate in its education choice program.

The state argues it wasn’t about religious discrimination but that the particular schools were allegedly associated with a group that the governor had designated as a terrorist group. The lawsuit is ongoing, but it’s just one legal challenge in a string of lawsuits targeting education choice programs across the nation.

In a recent piece, I discussed policy hurdles to newly passed education choice programs across the nation. In this piece, I continue by looking at the legal hurdles these programs face and discuss what they mean for the future of education choice in America.

Constitutional challenges shift away from state bans on funding to religious schools

Legal challenges are nothing new to education choice programs like vouchers, education savings accounts, or tax credit scholarships. These state-funded programs, which allow families to access new educational choices using public dollars, have often been considered controversial, especially by advocates in public education.

In prior years, legal challenges were often based on state-level provisions that prohibited public aid to religious institutions (known as Blaine amendments, which exist in 37 states), but these challenges have been invalidated by the U.S. Supreme Court (SCOTUS).

In fact, in 2020, the court in Espinoza v. Montana Department of Revenue held that states cannot bar schools from a public benefit program based on their religious status. Then, in 2022, the case of Carson v. Makin held that private schools could not be excluded from a state aid program even if the aid was for religious uses (such as religious instruction).

And decades before that, in 2002, the court found that an education choice program could ultimately send money to religious schools since the program did not promote religious schools but offered them alongside nonreligious schools.

Since these recent holdings, constitutional challenges have had to shift away from these reasons to focus on obligations to public education, how education funding must be used, or legislative authority.

Here are some current examples.

Recent or current legal challenges to education choice programs

Utah

Other states are watching the constitutional challenge to Utah’s education savings account. A district court judge ultimately ruled the program unconstitutional, arguing that the legislature created a program with public funds that existed outside the constitutionally required public education system for schools that did not comply with the laws that would be required if it were. Utah’s income tax revenue is earmarked for specific purposes (notably public education, higher education and children and individuals with disabilities); the judge found that this program violated the rules governing how earmarked education income-tax funds were allowed to be spent. The case has been appealed to the Utah Supreme Court, where its fate is to be decided.

Ohio

Ohio is appealing a June 2025 trial court’s determination that its “Educational Choice” program violates several parts of the state constitution, including the state’s responsibility to have a “thorough and efficient system of common schools,” taking funds away from public schools, and giving religious schools control of public funds. This case, too, touches on the theme of the state’s obligation to a required form of public schools.

Kentucky

In 2022, the Kentucky Supreme Court struck down the state’s education savings account (ESA)-style tax credit scholarship, which passed in 2021, based on a provision in the state constitution that says, “No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters.”

If we expand the education choice lens wider to include charter schools, the Kentucky Supreme Court struck down the charter school law in February 2026. This ruling is important too.

In March 2026, the Kentucky legislature overrode a governor’s veto of a bill that would opt the state into the federal tax credit scholarship. This may end up being a key issue and source of tension in states, depending on whether and how a state opts in to the new federal education choice program. All in all, it appears that Kentucky is in a meaningful fight over the fate of education choice programs in the state.

South Carolina

In 2024, the South Carolina Supreme Court struck down its voucher-style program (which had passed the year before), saying it violated the state constitution’s ban on tax dollars going directly to private schools. Lawmakers re-worked the program in 2025 to address the constitutional concerns, but renewed pushback is already mounting.

Tennessee

In late 2025, Tennessee’s voucher program, the Tennessee Education Freedom Scholarship Act, was challenged on the grounds that the state constitution requires the state to provide a system of free public schools, doesn’t allow it to provide a system of schools outside that system, and that this program would leave schools underfunded and prevent an adequate education for public school students. This lawsuit is ongoing.

Arkansas

Arkansas’s program, enacted by the LEARNS Act, faces both state (2024) and federal (2025) challenges, with the former based on an argument that the program illegally diverts money away from public schools to private ones, allows the state to retain local revenue, and that together these violations have led to an unconstitutional spending of public funds. The federal lawsuit is centered on an Establishment Clause issue. These issues are also ongoing.

Wyoming

Wyoming’s program is also being challenged in a June 2025 lawsuit based on the claim that it violates the state constitution’s obligation for a uniform system of public education, not giving funds to schools not under “absolute control of the state” or “necessary support for the poor.” It is under a preliminary injunction until the state’s Supreme Court weighs in.

Missouri

In April 2026, a Missouri judge rejected claims brought against Missouri’s program, MOScholars, holding that the plaintiffs lacked standing and that the program did not violate the state constitution by using state general revenue. The plaintiffs in this case, the Missouri National Education Association, have stated that it plans to appeal this decision to the Missouri Supreme Court.

Montana

Late last year, a Montana state judge ruled the state’s Special Needs Equal Opportunity Education Savings Account unconstitutional because it was not appropriately funded by the legislature. Until a different ruling from another court or legislative changes are made, the program cannot operate.

Florida

Florida’s multiple education choice programs are run by Step Up for Students. Several private schools brought a lawsuit on financial accountability grounds, saying the state did not “timely and properly disburse” state funds, which led to financial and operational issues. Its purpose is to seek improvements so they can get timely payment and better transparency.

Idaho

There was good news for education choice in Idaho this year. Idaho’s program was challenged on the basis of a constitutional obligation to “a general, uniform, and thorough system of free, common schools,” but in early 2026, the Idaho Supreme Court unanimously upheld the program as constitutional, ending that legal challenge.

What does it mean?

So, what does this all mean? As constitutional attorney and editor in chief of State Court Report, Alicia Bannon, put it, “Across the country, states are debating what actually counts as public education. The line between public and private schooling is blurring as charter schools, vouchers, and tax credits all compete for public funding. And increasingly, state courts are being asked to draw the line.”

As courts make decisions, education choice legislation may morph and be refined. Where programs do not exist, lawmakers may more carefully craft legislation that preempts similar legal challenges. But education choice is unlikely to go away.

Families are already demanding more choices, and that expectation will be very hard to quash, even amid challenges to specific education-choice structures.

Sutherland Institute policy intern Sophia Rolie contributed research to this article.