• The Utah Constitution gives the Legislature authority to make public policy for the state so that the officials closest to the people make the important decisions that affect their lives.
• The constitutional requirement to establish and maintain a public school system doesn’t prevent the state from helping children outside that system.
• Money raised by the state income tax revenue must be spent on public education, support for children, and support for individuals with a disability.

​In May, the Utah Education Association filed a lawsuit challenging the Utah Fits All Scholarship program, which provides a publicly funded scholarship to children whose parents determine they could benefit from educational opportunities outside the public school system. The state and families who received the scholarships have now responded to the suit and asked the trial court to dismiss the case. They argue that the program is consistent with the Utah Constitution.

These arguments highlight some important constitutional concepts that have application beyond the specific case.

1. Utah’s legislative representatives can legislate on all matters within the parameters of the state constitution.

Many entities in the state influence public policy, but the Legislature is the only body tasked with considering legislation to create binding statutes. Thus, it has authority to make necessary laws within the constraints of the constitution.

This latter point is important. The recent submissions in the case quote a prior court decision that explains “the Utah Constitution is not one of grant, but one of limitation.” This means that unless the state constitution restrains the Legislature on something, it can create law on “any subject within the sphere of government.”

While this takeaway may be obvious to some, it is a helpful reminder that direct lawmaking in education rests with the Utah Legislature and not the Utah State Board of Education, the governor, or any other entity. Voters and others seeking to understand where education laws come from should understand this dynamic.

It ensures that the policies that directly impact the learning of the children of the state are made by those officials who are closest to and accountable to those who will be affected by the decisions.

2. The constitutional requirement that Utah’s Legislature establish and maintain a public education system doesn’t prevent the state from providing educational assistance to children outside that system.

Something all parties in the lawsuit agree about is that the Utah Constitution requires the Legislature to establish and maintain a free and open public education system.

In fact, the constitution says the Legislature “shall” do this, which is a formal way of saying “must” and is the strongest legal language possible.

In addition to making this requirement, the constitution also provides the Legislature with authority it can use at its discretion to, for instance, assist children who could benefit from alternative educational opportunities.

Said another way, while the Legislature must create a public education system, it may also do other things.

3. Income tax revenue must be spent on the public education system but can also be spent to “support children and to support individuals with a disability.”

The Utah Constitution was amended in 2020 (when voters passed Amendment G) to allow additional uses for state income tax revenue beyond the traditional use of funding the public education system. The constitution now allows the Legislature to allocate these funds to support children and individuals with disabilities. This makes sense because many individual circumstances and needs require tailored opportunities.

The state currently has successful programs that support individuals with disabilities seeking these tailored opportunities like alternative education options. The Utah Fits All scholarship is in line with these programs. In enacting the program, the state wisely ensured that the money for these opportunities would not undercut the state’s traditional support for public education.

This inclusive approach of ensuring broad educational and other opportunities is in the best tradition of the state.

This ongoing litigation will impact more than the scholarship program and the children it may benefit, as vital as those are. The case could make clear that the people’s representatives have authority to assist children whose needs make a nonpublic school option best. Importantly, they can do this while fulfilling their constitutional mandate to maintain the public school system.