Ky. Supreme Court rules against Republican-backed school choice law
In a unanimous ruling, the Kentucky Supreme Court has declared unconstitutional a controversial school choice law passed in 2021.
The bill, known as the Education Opportunity Account (EOA) Act, narrowly became law in 2021 with the support of a majority of Republicans in the state legislature. The act created a privately funded needs-based assistance program to cover educational expenses for families. 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, which proponents of the law argued would help students to be able to choose the best school for them regardless of family income.
Those who donated to the accounts were to be eligible for potentially sizable tax credits, a provision that sparked some controversy. The tax credit portion of the program, among others, drew criticism for essentially funding private schools with public dollars in a roundabout way through the tax credit system. Under the law, Kentucky taxpayers who donated would have received “a nearly dollar-for-dollar tax credit against their income taxes” according to the ruling.
Kentucky Supreme Court Justice Lisabeth Hughes, who wrote the majority opinion affirming Franklin Circuit Judge Phillip Shepherd’s ruling against the law, wrote that the program violated Section 184 of the Kentucky Constitution, which limits the raising or collecting of “sum[s]” for “education other than in common schools.”
“Applying the plain language of this section, the income tax credit raises money for nonpublic education and its characterization as a tax credit rather than an appropriation is immaterial,” Hughes wrote.
There were other challenges to the law aside from the one related to Section 184, but Hughes wrote that “the remaining constitutional challenges to the EOA Act are rendered moot” by the court siding with the initial challenge.
Shepherd had also ruled that the law violated the state constitution’s limitation of “special legislation” that only applies to certain communities in the state due to its provision singling out counties with populations over 90,000 at the time of the 2010 U.S. Census.
As a bill, the initiative was sponsored by Rep. Chad McCoy, R-Bardstown, who also pushed through a controversial education bill in 2022’s House Bill 9, which set up a funding mechanism for charter schools in Kentucky.
Though Republicans were the ones who helped push the bill over the finish line in Frankfort, support within the party was not unanimous. The bill made it through the House on a razor thin 48-47 margin, with many rural Republicans voting against it.
Gov. Andy Beshear’s veto of the bill was overridden with a slim 51-member majority in the House.
In his veto message, Beshear said the bill would “harm public education in Kentucky by taking money away from public schools.” In a post to Twitter on Thursday, the governor took his message a step further. He compared the EOA law to the newly passed law funding charter schools in Kentucky.
“Today’s ruling by the Kentucky Supreme Court couldn’t be more clear: state funding for private or charter schools is unconstitutional – period. It’s time for the General Assembly to invest in our public schools, our teachers and our children,” Beshear wrote.
Fayette County Public Schools argued against the law, saying that it stripped resources away from its schools and students.
Republican House Speaker David Osborne said he was disappointed.
“Our priority with HB 563 was to ensure all Kentucky children have access to the educational opportunities they deserve and require to reach their potential, particularly in light of the learning loss and setbacks caused by shutdowns and limited access to necessary services,” Osborne said.
“While we are disappointed and respectfully disagree with the Court’s decision to strike down this section, we remain committed to this. We will continue our efforts to empower parents and families despite pushback from an education administration more interested in satisfying self-serving union interests,” he said.
The Bluegrass Institute for Public Policy Solutions, a libertarian-leaning think, was one of the biggest cheerleaders for the law. It released a statement expressing disappointment at the court’s ruling.
“Contrary to the court’s ruling, Kentucky’s Constitution doesn’t prohibit educational alternatives for parents; it simply requires that the commonwealth “provide for an efficient system of common schools throughout the State,” a statement from the organization said.
The Kentucky Education Association, the state’s largest teachers union, celebrated the ruling.
“This decision protects the power of the people to decide important questions of public education policy and holds the legislature to account to uphold their oath to support and defend the Kentucky Constitution... We simply can’t afford to support two different education systems — one private and one public — on the taxpayers’ dime, and this ruling supports that concern. This decision is proof that the courts continue to serve as an important check against legislative overreach,” KEA President Eddie Campbell wrote.
This is a developing story and will be updated.
This story was originally published December 15, 2022 at 10:43 AM.
