The Kentucky Supreme Court upheld a decision from a Franklin Court Judge that Kentucky’s new tax credit scholarship program is unconstitutional.
The ruling confirms another major win for public school advocates and educators in Northern Kentucky after Northern Kentucky University declined to take action on becoming a charter school authorizer on Tuesday, effectively taking them out of the running for the authorizer role.
“I think it is a win for our continued advocacy for strong public schools for all children throughout the state of Kentucky,” said Dayton Independent School Superintendent Jay Brewer.
The tax credit scholarship program — or education opportunity accounts — passed the legislature in 2021 as House Bill 563 and would give tax credits from the state to donors who donated to scholarship-awarding organizations.
The scholarship money would then be given to disadvantaged students to attend private or charter schools.
Proponents of the program said it gives parents school choice, while opponents said that the common schools are important because it gives students a chance regardless of their circumstances.
The idea of equitable common schools comes from a 1989 decision — Rose v. Council for Better Education — by the Kentucky Supreme Court that found inequity in Kentucky’s public school system and that the General Assembly must “provide an efficient system of common schools throughout the state.”
But, the legislature has whittled away that ruling over the years through legislation such as House Bill 563 and House Bill 9 — the charter school funding and charter pilot project bill — according to Dr. Randy Poe, executive director of the Northern Kentucky Education Council.
“I think that this particular ruling goes back to the original Rose decision, and the Rose decision was that we need to have a common school and a public school system for all children — and we need to fund it appropriately and equitably so that all children can have a successful education,” Poe said.
Educators across the state have said that both educational bills, which are inextricably linked, send public school dollars to private schools, which is unconstitutional.
“HB 563 violated both the letter and the spirit of the Kentucky Constitution, which makes providing public education the state’s highest duty,” said Kentucky Educational Association President Eddie Campbell. “These plaintiffs stood up for all Kentucky students to ensure that the legislature’s unconstitutional actions did not go unchecked.”
His comments echo statements made by Kentucky Governor Andy Beshear earlier this week.
“I think the constitution is very clear that public dollars have to go into the public school system,” Beshear said.
While public school advocates argue that fully funding public schools is the answer, EdChoice Kentucky, which has lobbied the legislature for school choice in Kentucky, says that the Supreme Court decision will hold back thousands of Kentuckians from reaching their potential.
“Courts across the nation – from state supreme courts all the way to the U.S. Supreme Court — have universally upheld similar school choice programs as legitimate expressions of parents’ fundamental rights over their children’s education,” said EdChoice Kentucky President Andrew Vandiver.
He further argues that more than 30 states have school choice programs, and the number of enrolled students continues to grow yearly.
“Due to this unprecedented decision, Kentucky students now face a unique disadvantage compared to their peers in our surrounding states who have a wide array of options,” Vandiver said.
The decision by the Supreme Court, though, could set up a future precedent for cases involving charter schools in Kentucky, further eliminating so-called school choice for charter advocates.
The Supreme Court decision — based on precedent from the Rose decision — could potentially set up a similar outcome for House Bill 9 if it ends up in the court system, according to Poe, because charter schools are not a common school system.
“So I think that’s where your ties come in for 563 and House Bill 9 as you continue this because charter schools that are not operated by a local board of education are not going to create a common school system,” Poe said.