Judge strikes down Kentucky charter school bill, says it violates state constitution
A judge struck down a piece of legislation Monday that would have funded charter schools in Kentucky.
Franklin Circuit Judge Phillip Shepherd issued an order Monday finding that House Bill 9, which set up a funding mechanism for charter schools in the state, violated the Kentucky Constitution.
Charter schools – schools that are publicly funded but operated by independent groups with fewer regulations than most public schools – are technically legal in Kentucky, but HB 9 would have created a mechanism for funding them with public dollars.
Shepherd said that while there is vigorous debate on the merits of charter schools, the bill violated the plain language of the constitution, which includes a requirement for “an efficient system of common schools” and that tax dollars can’t be used to support non-public education.
“The central question in this constitutional analysis is whether the privately owned and operated ‘charter schools,’ which are established by this legislation, should be considered ‘common schools’ or ‘public schools’ within the meaning of Sections 183, 184 and 186 of the Kentucky Constitution? A review of the case law, and the plain language of the Kentucky Constitution itself, yields the inescapable conclusion that ‘charter schools’ are not ‘public schools’ or ‘common schools’ within the meaning of our state’s 1891 Constitution,” Shepherd wrote.
The bill also would have mandated the creation of two pilot charter schools, one in Louisville and another in Northern Kentucky.
A school in Madison County is seeking to become the state’s first charter school, with its application currently under review. Gus LaFontaine, who is trying to open the school, said in a statement that “despite this ruling, we will continue to pursue judicial resolution that results in empowering all parents to participate in education freedom; even those that are not financially capable.”
“To become Kentucky’s first charter school was never going to be easy. Our school’s journey is 12 years and counting. It’s been marked by both progress and setbacks. ...Last week more than 125 supporters stood in support of our goal at a community forum hosted by our local board of education. Their hopes, along with the silent hopes of many others wishing for more educational options, fuel our determination to drive on.” said LaFontaine.
Under the ruling, the Kentucky Department of Education, the Kentucky Board of Education and LaFontaine, are prevented from implementing the provisions of House Bill 9, and from distribution or expenditure of any tax dollars to charter schools under that statute.
HB 9 passed out of the GOP-led legislature, but faced a rocky path as many rural Republicans teamed up with Democrats to oppose the legislation. In several rural Kentucky counties, public schools are the largest employer and non-public schooling options are scant.
The ruling comes as statehouse Republicans are mulling a constitutional amendment, which would need to be passed by the legislature and then approved by Kentucky voters on the ballot, to allow for tax dollars to be used to support non-public education. The Kentucky Supreme Court earlier this year affirmed a Franklin Circuit Court ruling against a “school choice” law setting up a tax credit-funded scholarship system for students to attend private schools.
Shepherd referenced the conclusion of that case in his order against House Bill 9.
“There is no way to uphold the expenditure of tax dollars for charter schools under the provisions of HB 9 without doing violence to this recent ruling of the Kentucky Supreme Court. HB 9 erects an elaborate structure of mandated public authorization for schools with private ownership and control, and little meaningful public oversight... The substance of what this statute does is to establish taxpayer funded private schools that are exempt from the laws and regulations of the system of common schools established by our Ky. Constitution and laws,” Shepherd wrote.
The suit against the law was led by Council for Better Education, a pro-public education group in Kentucky.
Tom Shelton, a spokesperson for the Council for Better Education, said the group “appreciates the ruling from Judge Shepherd supporting our opinion that HB 9 violated our Kentucky Constitution. The constitution specifically prohibits the privatization of public funds. Public funds are for public purposes. “
Toni Konz Tatman, a spokesperson for the Kentucky Department of Education, said in response to the ruling that “the General Assembly makes the laws in Kentucky and the judicial branch interprets those laws. The court has reached a decision on House Bill 9 and the Kentucky Department of Education will not be appealing the court’s ruling. However, other parties to the lawsuit may take further action.”
“The Kentucky Constitution is abundantly clear: The General Assembly can only authorize and fund public education. We said that in 2017, when charter schools were first approved; we said that again in 2022, when the law rejected today was passed; and we’ll say it once more in 2024, when there will be yet another attempt to route public tax dollars into private schools., Kentucky House Democratic Caucus Leaders Derrick Graham, Cherlynn Stevenson and Rachel Roberts said in a statement.
Eddie Campbell, the president of the educator’s group the Kentucky Education Association, said in part, “KEA applauds Judge Shepard’s decision finding that House Bill 9, which was passed into law to set up a taxpayer-funded mechanism to subsidize charter schools in the Commonwealth, violated the Kentucky Constitution.”
This story was originally published December 11, 2023 at 3:45 PM.
