Questions linger as ballot measure, court case looms
Kentuckians don’t typically call their public elementary, middle or high schools common schools – at least not in everyday conversation. “Public schools” seems a more natural fit.
The public school reference is seemingly everywhere today: The Kentucky Department of Education classifies schools as public schools, public programs or non-public. Public school districts – there are 171 of them in Kentucky, including 1,477 schools – typically refer to themselves as “public schools.”
But way back in 1891 when the current (and fourth) Kentucky constitution was ratified, “common schools” was the contemporary reference for public schools. The term public schools didn’t appear in the state constitution until 1941 (and again in 1953) when voters approved a school funding amendment.
To this day, Section 183 of the state constitution says “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.” There’s also Section 184 regarding funding “for the purpose of sustaining the system of common schools.”
Kentucky statute defines common school this way:
“Common school” means an elementary or secondary school of the state supported in whole or in part by public taxation. No school shall be deemed a “common school” or receive support from public taxation unless the school is taught by a certified teacher for a minimum school term as defined by KRS 158.070 and every child residing in the district who satisfies the age requirements of this section has had the privilege of attending it.” (KRS 158.030(1))
It’s an old definition – one that “has essentially remained substantively unchanged since before the adoption of the present constitution,” predating current statutes, according to a 2023 Kentucky court decision now under appeal.
So, where did the term common schools get its start?
Where did common schools get their start?
Common schools grew out of an 1830s reform movement in New England, where change agents like politician Horace Mann – known widely as the Father of American Education – pushed for a universal, free education system.
The idea behind the common schools was to make school available to all children regardless of social status or religion, according to the PBS series Only a Teacher. A system of taxation and fees was proposed to cover costs.
New schools soon multiplied across the country, becoming what the series calls the “precursor to today’s public school.” States besides Kentucky that still include the term common schools in their state constitutions or statutes include New York, Illinois and Washington.
Common schools, Kentucky-style
The term common schools has appeared in quite a few Kentucky court cases over the years – most notably the Kentucky Supreme Court’s ruling in Rose v. Council for Better Education (1989) that declared the state’s entire system of “common schools” unconstitutional.
That ruling led to massive public school reform, the passage of the Kentucky Education Reform Act in 1990 and a new funding/distribution formula for public schools that many know as SEEK.
Today, educators (and even some state legislators) are renewing their interest in revisiting SEEK, as funding has reportedly failed to keep pace with funding in districts around the commonwealth.
There’s also a push for school choice – or public funding for schools outside of the system of common schools.
In early 2024, state lawmakers voted for a proposed constitutional amendment that would allow them to fund “education costs of students in kindergarten through 12 grade who are outside the system of common (public) schools,” according to the legislation in House Bill 2. The proposed amendment will go on the statewide ballot this November.
Here’s the ballot question: To give parents choices in educational opportunities for their children, are you in favor of enabling the General Assembly to provide financial support for the education costs of students in kindergarten through 12th grade who are outside the system of common (public) schools by amending the Constitution of Kentucky as stated below?
Kentucky courts have been clear that voters need to know exactly what they are voting for when it comes to amending the state constitution. So the inclusion of the word “public” in parentheses in reference to common schools in the ballot questions is likely no accident.
Adding the word “public” lets voters know that common schools means public schools.
Adding the term common schools ties the proposed amendment to both the Kentucky constitution and statutory definitions of common schools now in place.
What’s happening with common schools in Kentucky’s courts now?
Momentum for the proposed ballot question picked up steam in the 2024 General Assembly after two recent court cases: a 2023 Kentucky Supreme Court decision outlawing a 2021 law (HB 563) allowing tax credits for private school vouchers and a 2023 Franklin circuit decision (Council for Better Education v. Glass) that declared unconstitutional a 2022 law (HB 9) allowing public funds for charter schools.
The circuit case – Council for Better Education v. Glass – is pending review by the state courts of appeals. At the heart of the case is how the lower court interpreted what is – or isn’t – a common school.
Franklin Circuit Judge Phillip Shepherd said in his ruling in Glass that a “primary characteristic of the common schools is that they must ‘take all comers,’ and educate each child regardless of poverty, language barriers, disability, health or addiction problems at home, or any other obstacle to learning.”
It remains to be seen what impact an appeals court ruling in the case would have on public education in Kentucky.
On the ballot
It also remains to be seen what impact the proposed constitutional amendment would have on public schools.
Because voter approval of the amendment would allow lawmakers to fund education outside the system of common schools, it isn’t intended to directly do away with public education in the commonwealth.
That’s where the idea of school choice comes into play.
Kentucky Senate education chair Sen. Steve West (R-Paris) focused on the “choice” part in a comment made last year to Louisville Public Media.
“We’re not looking at school choice as an either/or proposition,” West reportedly told the news site. “We have to recognize that choice already exists for parents with financial means.”
Others claim the proposed amendment would draw money away from public education.
“Since Kentucky is already having difficulty meeting its constitutional obligations to equitably fund its public schools, as described in this report, amending the constitution to allow the legislature to also fund a separate system of private schools will only make that task more difficult,” the Kentucky Center for Economic Policy wrote in an August 2023 report. That report is titled The Funding Gap Between Kentucky’s Wealthy and Poor School Districts Is Now Worse Than Levels Declared Unconstitutional.
When asked about the amendment’s chance at passage this November, University of Kentucky political science associate professor Stephen Voss told LINK nky he wouldn’t say the proposal is “guaranteed to pass” – even in a heavily Republican state like Kentucky.
“Kentucky Republicans have tended to be relatively moderate when it comes to education policy, compared to voters in the South where battles against the educational profession have been successful. Teachers often are important and influential citizens in Kentucky’s smaller towns and counties. Former Gov. Matt Bevin suffered politically when he took on the teachers,” Voss said. “Opponents to the proposed amendment may have an easier time attracting sympathy in Kentucky than they would in other ‘red’ states.”