State law will strip resources from Fayette students, district tells Ky. Supreme Court

If the Kentucky Supreme Court upholds a 2021 state school choice law’s method of funding private education, it will “pull resources away“ from Fayette County Public Schools, the district’s attorneys say in a brief.

The Kentucky General Assembly in 2021 passed the Education Opportunity Act, House Bill 563, which created a privately funded needs-based assistance program for families to cover educational expenses. The law also created a pilot program that would offer tuition assistance to help students attend pre K-12 non-public schools in counties with more than 90,000 people.

The Franklin County Circuit Court found the EOA Act unconstitutional.

The Kentucky Supreme Court has taken the case on an appeal filed by Kentucky Attorney General Daniel Cameron and the Institute for Justice.

The case is of substantial interest to Fayette schools, the brief from Fayette school attorneys Joshua M. Salsburey and Donald C. Morgan says, because it serves a county with a population of greater than 90,000 people. That makes it one of the few districts targeted by the unconstitutional private school tuition provisions of the law, the brief filed last week said.

The law funnels money that should be dedicated to a public purpose to private uses, according to the brief.

“If this court upholds HB 563’s method of funding private education HB 563 and future legislation like it, will irreparably impede the very rights public education exists to ensure,” the brief said.

A significant portion of Fayette students are economically disadvantaged -- 49.5 percent qualify for free or reduced priced meals.

While it is true that education opportunity accounts theoretically create opportunities for the district’s economically disadvantaged students, from a practical prospective, the accounts will be inaccessible for Fayette’s most vulnerable students, the brief said.

Two key impediments make reliance on an educational opportunity account unrealistic for economically disadvantaged students, the brief said:

First, thousands of students use services that private schools are not required to offer such as special education and English language learner services.

Second, private school attendance requires disposable income beyond what can be provided by an education opportunity account.

The group EdChoice KY is partnering with attorneys from Notre Dame Law School’s Religious Liberty Initiative to support Kentucky’s school choice program in front of the Kentucky Supreme Court.

Andrew Vandiver, president of EdChoice KY and John Meiser, supervising attorney for the Religious Liberty Clinic at Notre Dame Law School, said in an opinion piece for the Herald-Leader, “The surest way to provide the best educational opportunities to our kids is by empowering parents to enroll their children in the schools of their choice.”

On Tuesday, the U.S. Supreme Court ruled that Maine “can’t exclude religious schools from a program that offers tuition aid for private education,” the Associated Press reported.

It’s a decision that could help religious organizations get access to taxpayer money, the Associated Press said.