Kentucky Supreme Court strikes down controversial school choice measure
A controversial school choice program that would have provided dollar-for-dollar tax credits to those donating money for nonpublic school tuition is unconstitutional, the Kentucky Supreme Court ruled Thursday.
The program, blocked by lower court proceedings for more than a year, could have cost the state up to $25 million in its first year of implementation. Both individuals and corporations would have been able to write off up to $1 million on their state income taxes.
In a unanimous opinion, the court's seven justices cited a section of the Kentucky Constitution that prohibits the state from raising funds for nonpublic schools.
"Simply put," the justices wrote, the school choice program "puts the Commonwealth in the business of raising 'sums ... for education other than in common (public) schools.'"
The court declined to speak to the intent of the 2021 law creating the tax credit program — namely, whether the goal of raising money for more children to have the choice of attending nonpublic schools is with or without merit, though the justices did cite precedent from a 1983 case: "'We cannot sell the people of Kentucky a mule and call it a horse, even if we believe the public needs a mule.'"
"'If the legislature thinks the people of Kentucky want this change, (it) should place the matter on the ballot,'" the court wrote, citing Fannin v. Williams, the 1983 case that struck down the state's attempt to purchase textbooks for nonpublic school students.
Thursday's decision ends a lengthy legislative and legal process to make "education opportunity accounts" a reality in Kentucky.
Under the challenged law, those who donate to scholarship-granting organizations would have received hefty tax credits from the state. The organizations would use donations to help low- and middle-income families pay for education expenses, most notably private school tuition in the largest counties.
Kentucky Attorney General Daniel Cameron intervened in the case, arguing for the constitutionality of the program.
Advocates saw the program as a way to drum up donations to open up educational opportunities for families who may not be able to afford them; critics saw it as a workaround that would allow would-be state tax dollars to flow to private schools.
In its ruling, the court agreed with those critics. Though the state would not be sending a direct appropriation to nonpublic schools, it would "most assuredly" be raising funds for nonpublic education through the tax credit plan.
"The substance of this bill is obvious," it wrote. "... The funds at issue are sums legally owed to the Commonwealth of Kentucky."
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Kentucky's constitution requires voters to sign off on any state funds that go to private schools. No such vote occurred involving education opportunity accounts.
Gov. Andy Beshear said during his weekly Team Kentucky briefing on Thursday that the ruling showed the state can’t send money directly to private schools — and they can’t send it indirectly either. “This argument, this issue ought to be done,” he said.
The Kentucky Education Association lauded the court's decision.
"This is a victory for Kentucky’s public schools and public school students," KEA President Eddie Campbell said in a press release. The school choice program "violated the letter and the spirit of the Kentucky Constitution, which makes providing public education the state's highest duty,"
The libertarian think-tank The Bluegrass Institute for Public Policy Solutions, meanwhile, lamented the decision, arguing the program would have provided new opportunities for low-income minority students, in particular.
"It’s obvious this court’s ruling was all about protecting a failed, costly and inefficient system at the expense of Kentucky’s neediest children," a press release from the group said.
Cameron, who is running for governor, tweeted on Thursday that his office was disappointed. "We’re saddened that parents across the Commonwealth won’t be able to use the needs-based funding provided by Kentucky’s Education Opportunity Account Program to expand learning opportunities for their children. Our office is committed to helping ensure the best educational opportunity for every child."
EdChoice Kentucky, which lobbied in favor of the law, also criticized the ruling.
"Today, the Kentucky Supreme Court issued a decision that will hold back thousands of Kentucky students from reaching their full potential," the group's president, Andrew Vandiver, said in a release.
"School choice programs are popular, proven and change the course of students’ lives," Vandiver said. "This effort to empower parents is too important to stop, and we will continue working to give every Kentucky student access to an education as unique as they are."
House Speaker David Osborne, R-Prospect, said Kentucky Republicans were disappointed but remained committed.
"We will continue our efforts to empower parents and families despite pushback from an education administration more interested in satisfying self-serving union interests," he said.
Similar legislation saw several false starts in front of state lawmakers before passing through on a tight vote in spring 2021. It was quickly met with a legal challenge from a cohort of school districts called the Council for Better Education, which fought and won a 1989 case that led to major education reform.
In October 2021, Franklin Circuit Court Judge Phillip Shepherd ruled the school choice program was unconstitutional and blocked it from going into effect.
"This Court does not dispute that many students and their families, both in public and private schools, could greatly benefit from the financial assistance provided for in this legislation," Shepherd wrote in his ruling.
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"Yet, the very fact that so many children need additional educational assistance, beyond what is presently funded and appropriated for the public schools, is an indication that we, as a state, may well be falling short of the constitutional mandate of 'an efficient system of common schools' as defined in the Rose case," he continued.
His ruling was appealed by the Institute for Justice, a libertarian-leaning law firm that intervened on behalf of families.
The institute, which won the Espinoza v. Montana Department of Revenue school choice case at the U.S. Supreme Court, argued the program was backed by private donations — not public dollars.
“Today’s ruling treats private donations as if they are government money,” Joshua House, an attorney with the institute, said at the time. “It holds that when private individuals donate their own money to education-related causes, and receive tax credits for those donations, it is in effect the government raising and spending money on education. That’s just wrong.”
This story may be updated.
Contact reporter Krista Johnson at [email protected]. Reach Olivia Krauth at [email protected] and on Twitter at @oliviakrauth.
This article originally appeared on Louisville Courier Journal: Kentucky Supreme Court rules on school choice program
