New school choice program in Kentucky is unconstitutional, judge rules

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Posted at 11:59 AM, Oct 08, 2021
and last updated 2021-10-08 13:49:40-04

(LEX 18) — A judge has ruled against Kentucky's new school choice program.

The Kentucky General Assembly passed House Bill 563 into law earlier this year. The bill would create a tax-credit scholarship fund in Kentucky. That money could then be used to let kids go to schools other than their local public school.

In his decision, Franklin Circuit Court Judge Phillip Shepherd said the bill is in violation of the Kentucky Constitution.

"This Court does not dispute that many students and their families, both in public and private schools, could greatly benefit from the financial assistance provided for in this legislation," Shepherd wrote in his ruling. "Yet, the very fact that so many children need additional educational assistance, beyond what is presently funded and appropriated for the public schools, is an indication that we, as a state, may well be falling short of the constitutional mandate of 'an efficient system of common schools' as defined in the Rose case."

In Shepherd's decision, officials will not be allowed to approve the creation of any account granting organizations or education opportunity accounts. They also cannot grant any tax credits to fund either.

Parents in favor of school choice say it would take the financial burden off some families struggling to pay for other types of schools. But public education supporters believe the bill creates a voucher system that takes money away from already underfunded public schools.

Andrew Vandiver, President of EdChoice Kentucky, a group that supports school choice, issued the following statement after the ruling:

"Educational choice has transformed the lives of young people in communities around America. Kentucky students deserve those same opportunities to build a learning environment as unique as they are.

"That's why EdChoice Kentucky and all of the families we represent are disappointed the Franklin Circuit Court broke with judges across the county, including the U.S. Supreme Court, and blocked Kentucky's expansive educational choice program. Stakeholders and legislators invested considerable time and effort to design a workable program that will help Kentucky parents access the right education for their children. Today's ruling represents an unnecessary delay with the potential to leave Kentucky’s students in classrooms that just don't work for them. This is not the end.

"EdChoice Kentucky and our partners will keep fighting to give Kentucky parents the resources they need to move their students to head of the class. We remain confident the Education Opportunity Accounts Act will be upheld on appeal and our next generation will get the financial support necessary to reach for their full potential."

Eddie Campbell, President of the Kentucky Education Associated, applauded the judge's ruling with the following statement:

"We applaud the decision of Judge Shepherd today for upholding the constitution of Kentucky against an attempt to divert tax dollars from our public schools and students into the pockets of big corporations and wealthy individuals. This is a victory for our public schools, our public school students, and our Commonwealth’s constitution."

HB 563 violates both the letter and the spirit of the Kentucky Constitution, which makes providing public education the state's highest duty. These plaintiffs stood up for all Kentucky students to ensure that the legislature’s unconstitutional actions did not go unchecked, and the judge has affirmed their concerns.

"Under the Kentucky Constitution, the General Assembly must provide for and oversee an efficient system of common schools and cannot raise or spend funds on private schools that serve a select few. Judge Shepherd ruled that HB 563 violated that sound precedent as determined in the court's ruling in Rose v. Council for Better Education.

"Research has shown that private school voucher programs in other states have demonstrated no positive effect on students' educational outcomes, and often negatively impact student achievement. In fact, some evidence illustrates they may exacerbate school segregation and fund discrimination and they are prone to waste, fraud, and abuse.

"We simply can't afford to support two different education systems — one private and one public — on the taxpayers' dime, and the judge’s ruling supports that concern. HB 563 would have hurt students here in Kentucky because it undermines the hard work that has been done since to improve public education in the commonwealth since Rose. KEA is thankful that HB 563 has been ruled unconstitutional and will not be allowed to stand."

The ruling can be appealed to the Kentucky Supreme Court.