Court rules controversial KY school choice law is unconstitutional. Appeal promised.

A controversial law that established school choice for Kentucky students was ruled unconstitutional Friday by Franklin Circuit Court Judge Phillip Shepherd.

House Bill 563 passed in March, establishing a “school choice program” to allow students to attend schools outside of their district. Proponents of the law said they plan to appeal Shepherd’s ruling.

In a lawsuit filed in June, the Council for Better Education challenged the legislation’s scholarship tax credit component, which would provide $125 million over five years in state revenue for private schools. The case was filed against the Kentucky Department of Revenue.

The Council for Better Education represents 168 of 173 school districts in the state. The nonprofit 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.

In his ruling, Shepherd said the law violates a provision in the Kentucky Constitution that says “no sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters.”

The Institute for Justice intervened in the lawsuit to defend the law on behalf of Florence parent Akia McNeary and Newport great-grandparent Nancy Deaton.

“Today’s ruling treats private donations as if they are government money,” said Institute for Justice Attorney Joshua House. “It holds that when private individuals donate their own money to education-related causes, and receive tax credits for those donations, it is in effect the government raising and spending money on education. That’s just wrong.”

McNeary said in a statement she was upset about the ruling.

“I don’t feel it’s fair that kids are forced to go to schools that don’t fit their needs,” McNeary said. “Not all schools work for all children.”

Shepherd also found the “without borders” portion of HB 563 in violation of the state constitution. The law would allow students who are residents of counties with a population of 90,000 or more, such as Fayette, to use funds received through the program for tuition and fees to attend nonpublic schools. Donors could get a tax credit.

Shepherd said the legislature chose an arbitrary and discriminatory geographical classification that excludes most counties and families. The Kentucky Supreme Court has previously explained the state constitution’s provisions “prevent special privileges, favoritism and discrimination and to assure equality under the law,” Shepherd wrote.

Shepherd noted that students enrolled in private school in Hardin County fall under the law, but private school students in neighboring Nelson County are excluded. Students enrolled in private schools in Fayette County are included, but families who have children enrolled in Frankfort Christian Academy, Good Shepherd School, or Capital Day School in nearby Franklin County are excluded.

The Kentucky Education Association applauded the courts decision.

“We simply can’t afford to support two different education systems — one private and one public — on the taxpayers’ dime, and the judge’s ruling supports that concern,” KEA President Eddie Campbell said in a statement. “HB 563 would have hurt students here in Kentucky because it undermines the hard work that has been done since to improve public education in the commonwealth since Rose.”

Shepherd noted in his ruling the bill was passed narrowly in the Kentucky House with a 48-47 vote.

“This Court cannot presume that the bill would have passed without the unconstitutional section limiting private school tuition assistance to the eight designated urban counties, nor can it presume the bill would have passed if that lucrative benefit was extended beyond the eight counties,” the ruling stated.

The bill was vetoed by Gov. Andy Beshear, but the General Assembly overrode that decision in March.

EdChoice Kentucky, a group supporting the bill, said it was disappointed in the court’s ruling.

“Stakeholders and legislators invested considerable time and effort to design a workable program that will help Kentucky parents access the right education for their children,” EdChoice Kentucky president Andrew Vandiver said. “Today’s ruling represents an unnecessary delay with the potential to leave Kentucky’s students in classrooms that just don’t work for them. This is not the end.”