Editorial
Judicial Activism Rewriting the Constitution: The Misguided Ruling Against Utah’s School Choice Program
This wasn’t a backdoor for the elite—it was a front door for the forgotten. The legislature didn’t just allow school choice—it prioritized the poor. To strike down a law that finally gave low-income families the tools the wealthy have always had is not protecting the Constitution. It’s rewriting it to serve the privileged.
On April 18, 2025, Utah’s Third District Court, under Judge Laura Scott, struck down the “Utah Fits All Scholarship Program,” a transformative school choice initiative designed to empower low-income families. This ruling, ostensibly grounded in Utah’s Constitution, is a textbook case of judicial activism, where a predetermined conclusion to protect the public education monopoly trumped legislative intent, parental rights, and constitutional principles. This wasn’t a backdoor for the elite—it was a front door for the forgotten. The legislature didn’t just allow school choice—it prioritized the poor. To strike down a law that finally gave low-income families the tools the wealthy have always had is not protecting the Constitution. It’s rewriting it to serve the privileged. This article argues that Judge Scott’s decision not only misinterprets Utah’s Constitution but also defies U.S. Supreme Court precedents, perpetuates economic inequality, and undermines democratic governance.
I. Legislative Intent: A Front Door for the Forgotten
In 2023, the Utah Legislature enacted HB 215 to create the “Utah Fits All Scholarship Program,” providing up to $8,000 per student for private schools or homeschooling, with priority for families below 200% of the federal poverty level. This design reflects Utah Code §53G-6-801, which declares, “A student’s parent is the primary person responsible for the education of the student, and the state is in a secondary and supportive role.” The program was not a blanket subsidy but a targeted intervention to ensure educational choice as a fundamental right for all, not just the affluent.
The program explicitly addressed systemic inequities. Families in underperforming districts were given a pathway out of failing institutions. It granted options to those whose voices are rarely heard in bureaucratic school board meetings or centralized decision-making. It empowered parents—particularly those in single-parent households or low-income brackets—with real agency in their child’s education.
As Thomas Jefferson warned, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.” The scholarship program embodied this principle, freeing families from the monopoly of a one-size-fits-all public system. By prioritizing the poor, the legislature opened a front door for the forgotten, dismantling barriers that wealth has long circumvented.
II. Judicial Activism: Starting with the Conclusion
Judge Scott’s ruling, based on Articles III and X of the Utah Constitution, deemed the program unconstitutional for diverting public funds to private entities not open to all children and not free from sectarian control. Article X mandates a public education system “free and open to all children” and “free from sectarian control,” while Article III likely restricts income tax revenue to public education. Scott’s interpretation, however, stretches these provisions beyond their original intent, imposing a rigid uniformity that stifles innovation.
Her ruling hinges on a critical mischaracterization: that any education program funded through public resources must operate identically to traditional public schools. This presumption ignores Utah’s long-standing precedent in supporting charters, concurrent enrollment programs, and alternative delivery models that coexist with the public system while serving diverse student needs.
This decision reeks of judicial activism, where the judge began with a desired outcome—preserving the public education status quo—and tailored her reasoning to fit. As James Madison noted, “The powers delegated by the proposed Constitution to the federal government are few and defined.” By analogy, state constitutional limitations should not be weaponized to block legislative efforts to support parental choice. Article X ensures access to public schools, not a prohibition on aiding families seeking alternatives. Scott’s expansive reading effectively rewrites the Constitution to entrench the privileged, who can already afford private education.
III. Equal Protection: Perpetuating Privilege
The ruling raises grave equal protection concerns under the Fourteenth Amendment. By invalidating a program designed to empower low-income families, Scott’s decision ensures that educational choice remains a luxury for the wealthy. The Equal Protection Clause demands substantive measures to remove barriers to fundamental rights, yet this ruling reinforces economic disparities, leaving the poor trapped in underperforming public schools.
Utah’s program was designed to rebalance this disparity. It gave working families the same access to tutoring, religious instruction, Montessori models, or therapeutic programs that wealthier parents already utilize. The court’s rejection of this effort is tantamount to reinforcing privilege under the guise of equity. When access to opportunity is restricted to those with means, constitutional equality is an illusion.
As I stated, “To strike down a law that finally gave low-income families the tools the wealthy have always had is not protecting the Constitution. It’s rewriting it to serve the privileged.” The program was a lifeline for the forgotten, yet Scott’s activism has slammed the door shut, maintaining a system where wealth dictates opportunity.
IV. Parental Rights: A Fundamental Liberty Undermined
The U.S. Supreme Court has long affirmed parental rights to direct their children’s education, as seen in Pierce v. Society of Sisters (1925), which struck down laws requiring public school attendance, and Wisconsin v. Yoder (1972), which upheld exemptions for religious education. By eliminating public support for educational alternatives, Scott’s ruling restricts this constitutional liberty to families who can afford private options, imposing an economic penalty on the poor.
Utah’s Constitution and statutes mirror this understanding. The law recognizes that the state is a secondary actor in education. Judge Scott’s ruling inverts this hierarchy, subordinating the parent to the state system. This view is contrary to both textual and historical understanding.
This economic condition on a fundamental right is an affront to constitutional principles. The Utah Legislature sought to universalize this liberty, but Scott’s decision ensures it remains a privilege for the elite, betraying the very families the program aimed to uplift.
V. Defying Supreme Court Precedent: The Espinoza Mandate
The ruling starkly conflicts with U.S. Supreme Court jurisprudence, particularly Espinoza v. Montana (2020) and Carson v. Makin (2022). In Espinoza, the Court invalidated Montana’s exclusion of religious schools from a scholarship program, declaring, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” (Espinoza v. Montana, 591 U.S. ___, 2020). The Court further stated, “By excluding religious schools from the program, the State imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.”
Amicus briefs in Espinoza bolster this argument. Becket’s brief argued, “The discriminatory history of the Blaine Amendments renders them unconstitutional. Religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs” (Becket’s Amicus Brief). It added, “Relying on Blaine Amendments to shut down entire programs only extends the religious bigotry that motivated their enactment,” a point echoed in Justice Alito’s concurrence. The Department of Justice’s brief asserted, “When a state offers a benefit to private schools, it cannot exclude religious schools from that benefit solely because of their religious character” (DOJ’s Amicus Brief).
While Scott’s ruling did not explicitly target religious schools, its blanket prohibition on private school funding effectively excludes them, violating Espinoza’s neutrality mandate. Utah’s Article X, Section 9, mirrors the discriminatory Blaine Amendments condemned in Espinoza, treating religious families as second-class citizens. This misalignment with federal law underscores the ruling’s overreach.
VI. Judicial Overreach: Encroaching on Legislative Authority
Judicial review is vital, but judicial restraint is equally critical to democratic governance. The legislature, as the people’s voice, must have latitude to innovate within constitutional bounds. Scott’s ruling, by imposing a restrictive interpretation, usurps legislative prerogative. Alexander Hamilton warned in Federalist No. 78, “The judiciary has neither FORCE nor WILL but merely judgment.” When judges craft policy under the guise of adjudication, they disrupt the constitutional balance.
This decision destabilizes that balance. Rather than checking unlawful overreach, the judiciary here preemptively foreclosed an education policy designed through extensive legislative deliberation. It substitutes judicial preference for representative governance.
Scott’s activism resembles policy-making, starting with a conclusion to protect public schools and working backward to justify it. This encroaches on the legislature’s role to address pressing social issues, such as educational inequity, through innovative solutions like the scholarship program.
VII. A National Outlier: Utah’s Misstep Amid School Choice Momentum
The ruling positions Utah as an outlier in a national trend toward school choice. States like Arizona use tax credit scholarships, while Tennessee upheld a similar program for low-income families (What states passed school choice policies in 2022?). The POLITICO piece from April 9, 2025, notes growing judicial support for school choice, citing cases like Oklahoma Statewide Charter School Board v. Drummond (The Biggest Threat to Public Education). Utah’s decision bucks this trend, clinging to outdated constraints.
The state’s deviation is not simply a matter of local variation—it undermines a national consensus that educational freedom is essential in a pluralistic society. Utah should be a leader in innovation, not a litigant in retreat.
VIII. Future Considerations: Restoring Legislative Innovation
As the Utah Supreme Court reviews this case, it must ask: Does Article X mandate rigid uniformity, or does it permit legislative innovation? The court should reject textual literalism and embrace principles of equality, parental rights, and democratic governance. It must also reconcile Utah’s education clauses with the federal constitutional framework laid out in Espinoza and Carson.
The legislature is the proper venue for policy experimentation. Judicial invalidation of duly enacted laws should be reserved for clear violations—not contested interpretations. If public education is to remain responsive and resilient, the courts must recognize the legislature’s role in serving all families, not just the ones already empowered.
Conclusion: Reclaiming Constitutional Equilibrium
Judge Laura Scott’s ruling is a misguided act of judicial activism that rewrites Utah’s Constitution to serve the privileged. By striking down a program that opened doors for the forgotten, she has defied Espinoza’s mandate, undermined parental rights, and entrenched economic inequality. The Utah Supreme Court must reverse this decision, reaffirming legislative discretion and constitutional principles. As Justice Louis Brandeis stated, “It is one of the happy incidents of the federal system that a single courageous State may…serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Utah’s school choice initiative deserves such latitude to uplift the poor and honor the Constitution.
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