Kentucky Supreme Court justices all agreed that the Republican-controlled legislature’s 2022 law allowing charter schools is unconstitutional.
In a Thursday opinion written by Justice Michelle Keller, the seven justices ruled that the law did not meet the requirement in the Kentucky Constitution for lawmakers to “provide for an efficient system of common schools” across the state.
“With due respect for the General Assembly’s extensive efforts to broaden educational opportunity, and mindful of the practical consequences of today’s decision, we do not criticize those policy judgments nor substitute judicial discretion for legislative choice,” the opinion said. “Yet the Constitution binds us to a fixed standard.”
When the Supreme Court heard oral arguments in the matter last year, Solicitor General Matthew Kuhn of the attorney general’s office argued that the law did not violate the state Constitution, but would improve the system’s efficiency by expanding opportunities. Meanwhile, lawyers for an education advocacy group and two local school districts contended the charter school law fails several constitutional tests, including a requirement that tax-funded schools be overseen by elected boards accountable to voters.
The Supreme Court opinion noted that Kentucky voters gave “a sweeping state-wide rejection in all 120 counties” of a constitutional amendment that would have allowed the General Assembly to fund non-public schools in 2024. The court said that “made clear the charter debate is a constitutional one, not merely legislative: education funding requires either classification inside the common school system or voter consent.”
The court held that charter schools are different from public schools despite “their ‘many similarities’ regarding testing and teacher certification.” One way is that charter schools could buy buildings with tax dollars, but the building would not be an asset of a public school district or the Kentucky Department of Education.
Chief Justice Debra Lambert also concurred by authoring a separate opinion that was joined by Justice Kelly Thompson. It highlights “some additional concerns to point out that, through this legislation, the General Assembly has ceded its constitutional authority to oversee the public schools to (charter school) authorizers, and to emphasize that the charter schools are not unitary.”
She noted that the law’s only charter school authorizers were limited to a consolidated local government, which is just Jefferson County at present, or counties with more than four school districts, which is just Campbell and Kenton counties.
“Ergo, the pilot project would only be implemented in Jefferson County, Kenton County, and Campbell County and cannot be implemented in any of Kentucky’s remaining 117 counties,” Lambert wrote, adding that further shows the law was unconstitutional.
Lambert also raised concerns about a charter school operator acting in bad faith if they were not bound by the same financial obligations as public schools over tax dollars.
“Under the state constitution, the only path forward is to submit the issue to a referendum, with a majority of voters required to loosen the very strict requirements for an adequate, uniform and unitary public school system paid for by state tax dollars,” Lambert’s opinion said.
The Prichard Committee for Academic Excellence, a public education advocacy group, praised the ruling in a statement. Brigitte Blom, the committee’s CEO and president, said the justices underscored the Kentucky Constitution’s provision that protects against “the dismantling of public education as an essential public good.”
“Kentuckians’ undeniable and steadfast focus must remain on improving outcomes in our public schools that serve every child — and every family — in every community across the Commonwealth,” Blom said.
The Bluegrass Institute, a conservative think tank, disavowed the ruling, saying in a press release it has “serious concern” the ruling “violates the Kentucky Constitution.”
Bluegrass Institute CEO Caleb O. Brown said that the General Assembly ” has routinely appropriated General Fund dollars to educational programs that plainly do not satisfy the court’s definition of a ‘common school,’” such as Kentucky Schools for the Blind and Deaf and the Governor’s Scholars Program.
“These programs receive millions in General Fund appropriations,” Brown said. “Under the court’s reasoning, every one of these appropriations is constitutionally suspect. The court does not explain how its ruling leaves these beloved programs intact, nor can it.”
Gus LaFontaine, leader of LaFontaine Preparatory School (LPS) and appellant in the case, in the Bluegrass Institute’s press release expressed disappointment that “Kentucky children cannot participate in an educational opportunity that is already operating in 46 states.”
“We will continue to offer opportunities to the many families who seek out the educational options that best fit their needs,” LaFontaine said.