• Commentary on court decisions often does a disservice to the public by excluding relevant information about the legal reasoning courts employ even though it is widely accessible. An important example is the recent decision invalidating the Utah Fits All scholarship program.
• The decision in that case employs a highly flawed analysis which subordinates constitutional text approved by legislators and voters to the court’s conclusion about the intent of lawmakers discerned from selective outside sources.
• Doing so allows the court to place non-constitutional limits on the legislature’s authority, ignore U.S. constitutional guarantees of religious freedom, and add new requirements to the law that were not presented to the legislature or the voters. The result looks more like policymaking than constitutional interpretation.

Introduction

The simplistic way we usually talk about courts and their work often encourages distorted thinking about their roles. This is ironic because courts do not typically hide their work. In our legal system, judges create written opinions describing why they come to their decisions that allow lawmakers and the public to assess their reasoning and respond when warranted.

So often, though, court decisions are summarized in press coverage through win/loss descriptions that can leave observers unclear about why courts came to the conclusions that they do. This, in turn means that outsiders either assume the reasoning is unchallenged or perhaps worse, that the judges have the ability to determine whether a particular policy is a good or bad idea and rule accordingly.

In fairness, sometimes legal writing is unclear and thus it is not always easy to understand the reasoning behind certain decisions. But the effort to do so is important because it allows approval or criticism to be informed and productive. 

Utah Fits All

A recent example is a Utah trial court decision involving a state scholarship program prioritizing assistance to low-income families who determine their children’s educational needs would be better met outside the public school system. My colleague Christine Cooke Fairbanks provided a helpful discussion of this legal challenge here. The judge in that case ruled the program is unconstitutional.

But why?

The judge made two constitutional claims. First, that the Utah Constitution’s requirement that the legislature establish and maintain a public school system precludes the legislature from providing any assistance to those who might seek educational opportunities outside that system. Second, that state constitutional language allowing the legislature to use income tax revenue “to support children and to support individuals with a disability” is subject to an unwritten limitation derived from what voters really thought when they approved that constitutional change.

What’s wrong with this reasoning?

First, the court determined that it must look beyond the text of the constitution itself to determine the meaning of the relevant provisions. It is true that sometimes constitutional language has a specific legal meaning that is not entirely clear after centuries (“quartering soldiers” for instance). In those cases, historical material can help, but that is not what happened here.

The most relevant constitutional provision which allows legislative expenditures to “support children” was enacted in 2020! The phrase is not particularly technical either.

In fact, the court admits: “If the court is constrained by the plain language or subsection 5(b) and read it in isolation,” the state “may be correct that the legislature is permitted to use income tax revenues to fund” the scholarship program “because it ‘supports children.’” The court then discounts this plain language by reference to debates over ratification which do not illuminate the meaning of this simple phrase.

Second, the court substituted textual analysis for long and involved examinations of selected legislative arguments (quoting only four legislators), ballot arguments, and newspaper articles (including one written after a constitutional change had been approved).

These are not likely to be helpful and are irrelevant in answering the real question—what the law says. Lawmakers and voters speak through the language of the legal provisions they approve, not their subjective intentions about how they would want that language to be applied in the future. Such intentions are essentially impossible to know. If different voters or legislators had different intentions, which should control? The court’s approach makes the judiciary the de facto decider, but that’s neither necessary nor appropriate.

Third, the court failed to grapple with other serious constitutional implications of its reasoning.

For instance, the court dismissed the state’s argument that the constitution does not prevent the legislature from enacting “programs that touch education, but which are not designed to be part of the public education system.” That is a significant incursion on legislative power which is not mandated by any constitutional requirement.

The state supports all kinds of educational endeavors at state parks or in official proclamations which can’t possibly be invalid because they are not delivered in a public-school setting. It strains logic to say that because the state must maintain a public school system, the legislature can’t also promote learning in other settings.

As another example, the court makes much of the possibility that scholarship money might be used by parents for education that includes a religious component or that is provided by institutions whose policies are consistent with their beliefs. Yet, the U.S. Supreme Court has repeatedly held that the First Amendment does not allow states to deny support to otherwise eligible schools just because they are religious or require religious institutions to abandon their beliefs as a condition of providing services the state supports.

Fourth, the courts reads a requirement into the constitutional provision on support for children that such support can only be provided through “existing social service programs” though that language is not in the constitution.

Perhaps the court felt constrained to add this because its logic would prevent the state from operating programs that help children with special needs access educational opportunities outside the public school system. But these opportunities could be still be religious, and because they are limited to children with disabilities they are not universally open the way public schools must be.

To admit that such a program is constitutional would undercut all of the court’s prior analysis. So, the court adds this extraneous language to the constitutional requirement, and then adopts a novel definition of social services that conveniently excludes assistance to low income families who determine their children’s educational needs are best met outside the public school system.

This analysis looks an awful lot like a policy judgment.

In fairness to the court, it may have felt constrained to follow this circuitous reasoning because of a recent Utah Supreme Court decision (cited multiple times in the scholarship program opinion) that prohibited the state from enforcing its abortion regulations on the theory that the state constitution may contain an unwritten right to abortion even though the state has always disallowed the practice through its history.

The good news is that the state can appeal this decision and allow the Utah Supreme Court to clarify that clear constitutional language cannot be trumped by speculation about what lawmakers or voters really intended when they approved that language.

Doing so will make clear that the legislature has the authority to help parents who believe their children would benefit from different educational options. More importantly, it will make clear that courts need not look behind the language of the law agreed on by those who make it to advance other goals.