Kentucky Supreme Court unanimously strikes down school choice scholarship program as unconstitutional

Kentucky’s Republican-controlled state legislature passed a law last year that would have tax credits to private donors who contributed funds to a special school choice program that provides grants to cover private school tuition for low- to middle-income families in the state.

A state court had blocked that law from going into effect last year, and now the Kentucky Supreme Court has unanimously struck the law down as unconstitutional, Fox News reported.

The high court reasoned that the state constitution only allows for tax dollars to be spent on “common schools” and sided with opponents of the law who argued that the tax credits for private donors to the scholarship program effectively constituted state funds going to private schools.

Ruled unconstitutional

The Lexington Herald-Leader reported that the law passed in 2021 was known as the Education Opportunity Account Act, and it not only created the privately funded scholarship program to provide tuition assistance for needy families but also offered a “nearly dollar-for-dollar tax credit against their income taxes” for individuals and organizations that donated to the program.

According to the majority opinion authored by Kentucky Supreme Court Justice Lisabeth Hughes, however, the program and related tax credits appeared to conflict with Section 184 of the Kentucky Constitution, which bars the state from spending “sums” on any sort of “education other than in common schools.”

Hughes wrote, “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.”

Reactions to ruling

In response to that decision, Kentucky Gov. Andy Beshear (D), who unsuccessfully vetoed the law in 2021 but was overridden by the legislature, said in a statement, “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.”

The Herald-Leader noted that the state’s teachers’ unions, who vehemently opposed this law — or really any sort of school choice effort — celebrated the high court’s ruling as a victory against “legislative overreach.”

Of course, the Republican politicians and libertarian organizations who supported the school choice scholarship program and associated tax credits were understandably dismayed by how the court had ruled.

“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,” House Speaker David Osborne (R) said in a statement.

“While we are disappointed and respectfully disagree with the Court’s decision to strike down this section, we remain committed to this,” he added. “We will continue our efforts to empower parents and families despite pushback from an education administration more interested in satisfying self-serving union interests.”

Fight for school choice isn’t over yet

According to the Louisville Courier-Journal, Kentucky Attorney General Daniel Cameron (R), who is running to replace Beshear as governor, had intervened in the case in an unsuccessful effort to defend the constitutionality of the challenged program and tax credits.

“We’re saddened that parents across the Commonwealth won’t be able to use the needs-based funding provided by Kentucky’s Education Opportunity Account Program to expand learning opportunities for their children. Our office is committed to helping ensure the best educational opportunity for every child,” Cameron said in response to the ruling.

A group known as EdChoice Kentucky that supported the law said in a statement, “Today, the Kentucky Supreme Court issued a decision that will hold back thousands of Kentucky students from reaching their full potential,” and, noting the broad popularity and success of school choice programs, added, “This effort to empower parents is too important to stop, and we will continue working to give every Kentucky student access to an education as unique as they are.”

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