Over the last six years, as the state of Kentucky shrank public education funding, it spent nearly $18 million to pay for student busing at private, mostly religious schools in two dozen counties, according to state financial records.
In Nelson County, for example, the state last year paid $182,943 for 257 students to be bused to Catholic schools. Nelson County Fiscal Court matched that with $49,388 from its own budget. That money was split between the city and county school districts, to compensate them for carrying private students on their buses, and private Bethlehem High School in Bardstown, which runs five buses on several daily routes.
"It really is pretty critical for us," said Tom Hamilton, principal of Bethlehem High School, part of the Catholic Archdiocese of Louisville. "Bus transportation is a high-ticket item. This doesn't pay for all of our costs, but it pays for a lot of it."
The state's spending is about to grow. In March, amid lobbying by the Catholic Conference of Kentucky and other groups, the General Assembly voted to boost the private school bus subsidy to $3.5 million annually, up from $2.9 million, a 17 percent increase.
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Kentucky's constitution prohibits state funds from aiding "any church, sectarian or denominational school," which prompts a few state lawmakers to question the legality of the subsidy. But they say the subsidy is politically popular in many legislative districts and unlikely to be challenged.
"Do I have a problem with private school students getting public money to get to private schools? Yes, I do," said state Rep. Kelly Flood, D-Lexington, who is chairwoman of the House budget subcommittee that oversees K-12 schools.
"These are families who have chosen not to attend public schools, which is certainly their right. But we are under no obligation as a state to pay for their choice," Flood said. "Meanwhile, the transportation needs of our public school systems are pressing and growing, and I would like for that money to be redirected to help our public schools."
'Right to choose'
Proponents say the subsidy is necessary and proper.
"We're talking about student safety. I think that should be our highest priority," said House budget chairman Rick Rand, D-Bedford, who unveiled the subsidy increase during state budget negotiations this spring. "Any time we can create safety for school transportation, whether public or private, I think it's important."
Parents pay private tuition and enroll their children in Catholic schools for many reasons, including a desire for better education, more discipline and religious instruction, said the Rev. Patrick Delahanty, executive director of the Catholic Conference of Kentucky. Some parents "frankly don't trust the government, and they don't want their kids to be in a government school, brainwashed by secularism," Delahanty said.
"We believe parents have a right to choose a school other than public," Delahanty said. "And if they do not have the means to pay for that cost themselves, then the state, in our opinion, has an obligation to help them with it. That's why I don't feel at all badly about asking for a small sum of money for transportation."
Overall, Catholic schools help keep taxes lower, Delahanty said.
State data shows that 8,375 private school students were bused last year using the subsidy. That means thousands of parents paid taxes to support public schools but did not burden those schools with the expense of educating their children, he said.
"If they all enrolled in public school tomorrow, could we afford it?" Delahanty asked.
'A wink and a nod'
The private school bus subsidy began in its current form in 1998 under Democratic Gov. Paul Patton. The Kentucky Transportation Cabinet sends money from the state General Fund to county fiscal courts that apply. (Most counties, including Fayette, have not applied.) The counties, in turn, forward the money — often with some of their own funds — to public and private school systems, to compensate them for the expense of transporting private students.
The subsidy quickly was challenged by Stephen Neal, then executive director of the Jefferson County Teachers Association, who sued Jefferson County Fiscal Court and the Archdiocese of Louisville.
Kentucky's constitution and a series of 20th-century court decisions established that state money cannot be used to aid religious schools, whether it goes to hire teachers, equip classrooms or subsidize student transportation, Neal argued.
"It's impossible to see how this isn't state aid for a religious school. Clearly, the legislators, to gain the favor of certain segments of their communities and to get votes, they're willing to violate the constitution," said John Frith Stewart, one of Neal's attorneys, in a recent interview.
A sharply divided Kentucky Supreme Court ruled 4-to-3 against Neal in 1999.
The subsidy is not state aid for religious schools, it's state aid for children who otherwise might risk their lives walking in traffic and bad weather simply because they are not enrolled in a public school with free busing, Justice William Graves wrote for the majority.
"We are of the opinion that (the subsidy) is a legal means of providing safe transportation of children who attend non-public schools," Graves wrote. "Aid to parochial schools is constitutional as long as the aid provided flows directly and exclusively to the child and only indirectly, if at all, to the parochial school."
In his dissenting opinion, Justice Robert Stephens scoffed at the majority's logic.
"How does having the taxpayers ... pay for the transportation of Catholic school children make this transportation any safer than if it were paid for by either their parents or the Archdiocese itself?" Stephens asked. "If the state can pay for transportation of students to protect them from the weather, then why cannot the same reasoning be employed to construct school buildings for such students? Certainly classes being held outside would present a threat to the children."
"As a firm believer in the separation of church and state for the protection of both institutions, I am sorry to see this day has come to pass," Stephens wrote. "While with a wink and a nod, the majority has permitted the funding of private religious students' transportation costs to assure the 'safety' of the students, I believe that same wink and nod shall return to the detriment of those who it would appear to be serving in this matter."
'The political will'
Originally, the state subsidy was large enough to cover the cost of busing private school students, said Nelson County Judge-Executive Dean Watts. But as years passed, fuel prices and other expenses rose, and some participating counties began to kick in their own funds to make up the difference, Watts said.
By 2013, 19 counties requested about $3.9 million in subsidy from the state and got about $3 million, leaving an unfunded gap of $830,000. Louisville Metro Government paid about $200,000 in local funds in addition to its $866,168 state subsidy, which went to pay for busing 2,231 private students to Catholic and non-Catholic schools, said city spokesman Phil Miller.
In rural Nelson County, an hour west of Lexington, local taxpayers contributed nearly $50,000 last year, roughly one-fourth as much as the state subsidy. Local residents want to help the Catholic schools, Watts said.
"In a small county our size, it's important to have school choices that are affordable," Watts said. "It keeps education competitive and it's a very good economic development recruiting tool. If you've got a CEO visiting from St. Louis or Louisville or wherever, looking around, they see you as competitive if you've got another choice for education."
In Northern Kentucky's urban Boone County, more than $700,000 in state and county funds reimbursed the local school district last year for busing private school children. Cutting the bus subsidy is not an option, said Boone County Judge-Executive Gary Moore.
"In our county, the political will of the fiscal court has been to go ahead and offer this," Moore said. "We have a very large Catholic population. And if the school system were to say 'We're not being reimbursed fully, so we're not going to continue to transport these children,' well — it would not be acceptable."