Group votes to file lawsuit over KY’s controversial new school choice law, email says

A Kentucky coalition of school districts announced Friday it has voted to file a lawsuit to challenge the scholarship tax credit component of a controversial new school choice law.

In an email to Kentucky superintendents, officials with the Council for Better Education said the group would hire the law firm Wyatt, Tarrant, & Combs, LLP to file a lawsuit to challenge as unconstitutional the scholarship tax credits included in House Bill 563. The lawsuit is expected to be filed Monday, the email said.

“Based on advice from legal counsel, we believe there are multiple sections in KY’s Constitution that render HB 563 unconstitutional with respect to scholarship tax credits for private schools,” the email said.

Tom Shelton, a spokesman for the Council for Better Education, said Saturday morning that the group did not have an immediate comment other than those in the email.

The Council for Better Education is a nonprofit corporation whose members include 168 of Kentucky’s 173 public school districts.

The organization was formed in 1984 and brought the lawsuit “that culminated in the historic Rose v. CBE ruling on Kentucky’s constitutional education obligations,” its website said. The ruling led to major changes in Kentucky public education.

House Bill 563 requires each district to develop a policy about accepting students who don’t live in the district so that schools would be “without borders” and students could get benefits not offered in their own school district.

The legislation also called for the creation of an education opportunity account program. That would allow students who are residents of counties with a population of 90,000 or more — including Fayette — to use funds received through the program for tuition and fees to attend nonpublic schools. An individual or an employee could get a tax credit for donating to an account.

The Council for Better Education email said that Wednesday, the Frankfort and Warren County school boards voted to work with the Council for Better Education. The individual district actions were necessary for such litigation to be filed by the council, the email said.

Fayette school board chairman Tyler Murphy, who publicly opposed House Bill 563, did not immediately respond on Friday to a question about whether Fayette County Public Schools would also work with the Council for Better Education.

“This suit is ONLY focused on the scholarship tax credit portion of HB 563; Nothing to do with open borders/boundaries is included in the suit,” the Council email to superintendents said.

“We are seeking injunctive relief to halt the private school tax credits from being implemented, otherwise HB 563 (tax credits) goes into effect on June 28, 2021,” the email said. “ IF relief is granted, ONLY this section of HB 563 will be impacted. Open borders section will remain in effect.”

Gov. Andy Beshear vetoed the bill following its passage in the 2021 General Assembly, saying it would harm public education. But the bill became law when legislators overrode the veto.

The group EdChoice Kentucky that supported House Bill 563 criticized the pending lawsuit in a statement Friday night.

“Education should be about what’s best for Kentucky kids, not what’s best for a handful of bureaucrats who seek to enforce the status quo with this shameful lawsuit,” the statement said.

Supporters of the new law have said it will give families more choice. Opponents say it will take money away from public schools.

The only named defendants in the lawsuit will be the Kentucky Finance & Administration Cabinet and the Kentucky Department of Revenue, the Council for Better Education email said.