Lawsuit filed to stop charter schools in KY, says law requiring them is unconstitutional

A non-profit corporation that represents public school districts has filed a lawsuit against the Kentucky Department of Education over a state law that requires two pilot program charter schools to open.

The lawsuit filed Friday by the Council for Better Education is asking the Franklin Circuit Court to prevent the implementation of House Bill 9, saying it’s unconstitutional.

The lawsuit explains that although the framework for charter schools was established in 2017 with the passage of House Bill 520, the General Assembly did not provide any funding for charter schools. None have ever opened in Kentucky.

But that scenario changed last year with the passage of HB 9.

The lawsuit filed Jan. 6 takes aim at the state department of education and state school board because by state law, they must oversee any charter school that would open.

“As we always do, we will be asking all other public school boards to adopt a resolution and assessment to support our efforts,” Council for Better Education spokesman Tom Shelton told the Herald-Leader Tuesday. The lawsuit is asking the court to declare that “HB 9’s establishment and funding of charter schools is null, void, unconstitutional, and of no effect.”

Kentucky Education Commissioner Jason Glass said Tuesday that neither the Kentucky Department of Education nor the Kentucky Board of Education have yet been served with any lawsuit related to House Bill 9 or charter schools.

“However, there are many constitutional questions surrounding HB 9 and we look forward to the courts clarifying those. Any suit challenging the constitutionality of charter schools in Kentucky is a challenge to the legislature’s passage of HB 9,” Glass said.

He said the state board approved administrative regulations solely in response to HB 9 as instructed by the Kentucky General Assembly.

Glass said the legislature was very prescriptive on what actions the education department and board must take in HB 9, leaving little room for input

”In the event of litigation challenging HB 9, it will be up to the Kentucky Attorney General to defend the General Assembly’s charter school laws,” Glass said. “(The education department and board) will not expend its time and resources defending the General Assembly’s charter school laws as the commissioner advised the legislature of constitutional (and other) uncertainties with the law when it was being legislated.”

Charter school history in Kentucky

Before the law was passed, Kentucky was one of only six states without operating charter schools, severely limiting the education options the state can offer students and families, Todd Ziebarth, Senior Vice President of State Advocacy and Support for the National Alliance for Public Charter Schools, said.

“As we’ve seen in other states, this lawsuit tactic has not been effective,” he said. “We do not expect it will work in Kentucky either. We stand by the many advocates that fought for this law and the children and families that will benefit from having a public charter school option in their community.”

The resistance in Kentucky is consistent with the patterns in other states that are resistant to charter schools at first, he said.

First, charter school opponents fought the enactment of the state’s original charter school law in 2017. Then, they used legal maneuvers to effectively halt any charter schools from opening. Next, they fought the enactment of HB 9 in 2022, said Ziebarth.

“And now that HB 9’s permanent funding mechanism makes charter schools more of a reality for the state’s students, there is a lawsuit filed by a special interest group, looking out for the adults in the system and not at the potential education opportunities to help the children and families in the pilot communities,” he said.

On April 13, 2022, the Kentucky Senate and Kentucky House of Representatives narrowly passed HB 9 and overrode the veto of Gov. Andy Beshear by votes of 22-15 and 52-46, respectively, the lawsuit said.

The Council for Better Education was the plaintiff in the Rose case that led to the Kentucky Education Reform Act of 1990 and most recently, in the Kentucky Supreme Court decision to strike down HB563, which called for private school tax credits as unconstitutional.

Shelton said the tax credit win did not factor into the timing of the charter school lawsuit.

“We have been reviewing HB9 since it was passed and the Administrative Regulations were not approved by (the state board) until October, which then had to be reviewed and considered,” Shelton said.

How it works

HB 9 amends the existing charter school statutes, which authorized charter schools beginning in 2017, and creates a mechanism to fund charter schools by diverting funding from local school districts to charter schools, according to the lawsuit.

Beginning in academic year 2022-2023, any “authorizer” may authorize an unlimited number of charter schools under the law.

HB 9, however, requires the establishment of two charter schools — one in Jefferson County and one in Northern Kentucky — to study the impact of charter schools. Jefferson County Schools is a co-plaintiff with the Council for Better Education along with the Dayton Independent Board of Education.

Two groups must solicit, review and approve at least one application for a charter school that serves as an urban academy: the Jefferson school board must do so by July 1, 2023, and one year later, a collective of local school boards from counties containing four or more local school districts.

In a statement released Tuesday, the Council for Better Education says charter schools are not a part of the uniform system of common schools and are therefore unconstitutional. Charter schools divert state funding from local school districts who have fixed capital and operational expenses that are not recoverable as a result of lost revenue, the statement said.

HB 9 permits a non-school board authority to create charter schools in “pilot” areas established by a university or a mayor with no local school district oversight.

Under HB 9, the statement said, local school boards can be forced to fund charter schools from local tax receipts, even when the local board of education does not consent or approve to authorize a charter school in their local community.

Kentucky House Speaker David Osborne, R-Prospect, said he was aware of the court challenge and was reviewing the filing.

“Regardless, we remain committed to ensuring that the parents and children of Kentucky have access to the educational resources they need. Charter schools are public schools and could provide districts flexibility to meet the needs of their students,” Osborne said.

This is a developing story and may be updated.

This story was originally published January 10, 2023 at 11:50 AM.