Op-Ed: Charter schools in Kentucky: A horse or mule? Supreme Court considers

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The following op-ed is written by James P. Dady, a lawyer and journalist who lives in Bellevue

The Kentucky Supreme Court has before it a case that may well decide nothing short of the future of public education in the commonwealth.

The decision may also re-set the separation of powers among the branches of state government and perhaps nothing short of the future of Kentucky.

The Court in October heard arguments in Commonwealth v. Johnson, a case which will decide whether the school-choice legislation passed by this year’s General Assembly meets the requirements of the Kentucky Constitution. The case was brought by the Council for Better Education, a public-school advocacy group, and others. They contend that the school-choice program commits a form of state resources to non-public schools, and is thus in conflict with Section 171 which seems to prohibit spending public funds for a private purpose. 

James Dady. Photo provided | James Dady

There have been legal contests about how far the prohibition extends practically since the current constitution was enacted in 1891. In a 1983 in a case called Fannin v. Williams, the Court considered whether Section 171 could be harmonized with a program the providing of secular textbooks to private schoolchildren.

The books were the same as those provided to public schoolchildren. The legislative authors of the program were careful to dress it as aid to the schoolchildren and not to the schools themselves. There has been a recent U.S. Supreme Court decision holding that the same program enacted in New York did not offend the U.S. Constitution, accepting the distinction between school and student the advocates sought to draw.  

The Fannin court held the Kentucky law to be unconstitutional. Its advocates did not take proper account, the Court found, of several sections of the Kentucky Constitution which seem to forbid the levying and spending of tax dollars for non-public education.

“In sum,” wrote the late Justice Charles Leibson for the majority, “the Kentucky Constitution contemplates that public funds shall be expended for public education” unless such spending is approved by voters at a referendum. 

“We cannot sell the people of Kentucky a mule, and call it a horse, even if we believe the public needs a mule,” Justice Leibson wrote.

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There was a strong dissent in Fannin, and there have been cases decided by Supreme Courts with different members that would probably not have passed muster with the majority in Justice Leibson’s era. The political tides do wash under the doors of the elegant Supreme Court chambers at the State Capitol.

Getting around Fannin v. Williams is a long corner to turn for the school-choice forces led by attorneys in the office of Attorney General Daniel Cameron. The program would provide a credit of up to 95 percent for donations to an Account Granting Organization. The AGOs are to evaluate applications for funding from charter schools. The AGOs evaluate the applications and distribute the proceeds of the donations, and can claim up to ten percent of those proceeds as administrative expenses. 

Other than touting charter schools as a better choice than public, about what might be taught at charter schools their Kentucky advocates have had little to say, but it has been extensively reported that in other states the charter program has tilted to the political right. Some in Ohio have adopted the 1776 Curriculum, which is a project of conservative Hillsdale College in Michigan.

It is a short path to concluding that the charter school forces in Kentucky and elsewhere aim to launch academies of conservative education widely, and prevail on legislatures to arrange to pay for them where they can.

If charters are eventually established as brick-and-mortar institutions, they are likely to become perpetual supplicants for ever-greater shares of public resources, and in direct competition for them with public schools.

Some of the underpinning of school-choice rationale troubles some not in their camp. Charter schools are a predation on public ones. Implicit in the charter concept is the presumption that the highest ideal in education should be ‘competition,’ and that the rough tumble of the private market will sort out good from bad in education, with the bad – invariably those lumbering old public schools, with their rules, norms, laws, and teacher cadres – to be abandoned by the side of the road.

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Implied in the argument for charter schools is that public schools have ‘failed,’ and  that a measure of their success is the gradual destruction of public schools. By contending that public schools are failing, the charter school advocates undermine the consensus for a decent level of funding for public schools, without addressing the question, Isn’t it worth the effort to fix to what is claimed to be wrong about public schools rather than to sabotage them?

The effort to finance public education in Kentucky has seldom been better than just average. Census data show that Kentucky ranks 45th among states in per capita spending on education; it is no surprise therefore that Kentucky ranks 45th in per capita income. The relationship between the two statistics is hard to ignore. Kentucky public-school teachers are paid on average $11,000 per year below the national average. When the Rose decision was handed down thirty-three years ago, the commonwealth ranked 40th among states in per-pupil expenditures. The contemporary ranking is 45th. In resources devoted to educating its children, Kentucky has regressed since Rose.

The school-choice advocates argue that the grant of a tax credit to charter-school donors is not the same as the levy of a tax to support them. The argument of the challengers to the law is that state resources are being deployed in either case. 

The school-choice law under challenge is written to apply to eight counties that had populations of more than 90,000 as measured by the 2010 federal census: Jefferson, Fayette, Boone, Campbell, Daviess, Hardin, Kenton, Hardin, and Warren. A legal problem for the advocates is that Madison County now has a population of more than 90,000, but is not on the list because it did not reach that figure as of 2010 as set forth in the statute.

This anomaly gives the challengers room to argue that the list of counties in the law is fixed and therefore counts as ‘special’ legislation – laws for particular places and things – forbidden by the Kentucky Constitution.


The drafters of the Kentucky Constitution, in all of its 263 sections, sought to reach like an octopus into public and private matters. A fine Kentucky phrase-maker once called it “A stump we’ve got to plow around.”

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Also looming in the path of the school-choice forces is Section 183 of the constitution which requires the General Assembly to provide for an efficient system of common schools. This simple directive was reinforced by the landmark 1989 case of Rose v. Council for Better Education. 

The Rose court found that eighty percent of local Kentucky school districts were not being educated as well as those in the relatively wealthier twenty percent of them. The court voiced the maxim that it is the duty of the General Assembly to make school policy and to appropriate the funds necessary to pay for a decent system. The Court also declared that common schools:

** Should be free to all, available to all, substantially uniform throughout the state, that they shall provide educational opportunities to all;

** Shall be monitored by the General Assembly to assure that they are operated with no waste, no duplication, no mismanagement, and with no political influence;

** Are premised on the proposition that an adequate education is a constitutional right;

** Shall be granted funds by the General Assembly sufficient to provide every Kentucky schoolchild with an adequate education;

** That an adequate education is one which has as its goal the development of several capacities essential to becoming competent adults.

At minimum, The Rose decision is also a reminder that it is for the Kentucky Supreme Court to decide whether the legislature is meeting its constitutional duty to public schools, the one perhaps first before all the others.

A reconsideration of Rose is not explicitly called for by the school-choice forces led by Attorney General Cameron, although both sides find support for their positions in its language. It is now for the Court to decide how deploying state resources, in whatever guise, to support charter schools serves the constitutional mandate to provide an efficient system of public schools free and open to all.

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