KY Supreme Court to hear arguments on constitutionality of charter school funding

The Kentucky Supreme Court will hear arguments Sept. 11 about whether the state’s charter school funding law violates the state’s constitution.

In 2023, Franklin Circuit Judge Phillip Shepherd issued an order finding that House Bill 9, which set up a funding mechanism for charter schools in the state, violated the Kentucky Constitution.

Charter schools are schools that are publicly funded but operated by independent groups with fewer regulations than most public schools. They’ve been legal in Kentucky since 2017, but none have opened because there was originally no funding mechanism.

House Bill 9 would have created a mechanism for funding them with public dollars.

Shepherd said 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.

In asking the Kentucky Supreme Court to hear an appeal of Shepherd’s ruling, Kentucky Attorney General Russell Coleman said: “The Supreme Court should reverse the judgment ... and allow Kentucky families to finally benefit from public charter schools.”

House Bill 9 would have mandated the creation of two pilot charter schools, one in Louisville and one in Northern Kentucky.

The Council for Better Education, a pro-public education group in Kentucky, filed the suit against the Kentucky Department of Education that Shepherd ruled on. The lawsuit was to prevent KDE from implementing the law as directed by House Bill 9.

A school in Madison County is seeking to become the state’s first charter school. Gus LaFontaine, who is trying to open the charter school, told the Herald-Leader in 2023 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.”

KDE is not appealing the 2023 decision. But LaFontaine and Coleman are appealing.

“In 2017, the General Assembly passed Kentucky’s public charter school law. And in 2022, the General Assembly overhauled the law and funded public charter schools,” Coleman’s brief to the Kentucky Supreme Court said.

“This suit followed, with the plaintiffs claiming that Kentucky’s public charter school law violates the Kentucky Constitution. The Franklin Circuit Court agreed, mainly because it concluded that public charter schools are not common schools under our Constitution.”

“This Court should reverse. It is well within the General Assembly’s authority to use public charter schools to achieve an efficient system of common schools throughout the state,” the brief said.

The Supreme Court has scheduled oral arguments in the case for 10 a.m. Sept. 11 at the Norton Center for the Arts in Danville.