State supreme court strikes down school choice law

Published 2:17 pm Wednesday, December 21, 2022

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In a unanimous verdict, the Kentucky Supreme Court on Thursday upheld a state circuit court ruling that struck down a school choice program approved by lawmakers.

The 7-0 decision found the Education Opportunity Act, which the General Assembly passed in 2021, violated Section 184 of the state’s constitution, which blocks the collection of money for any non-public school unless it’s approved by voters.

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The opinion, written by Deputy Chief Justice Lisabeth Tabor Hughes, said the court had a “responsibility” to determine whether the law complied with the constitution.

“Before this Court, the proponents of HB 563 urge our consideration of the importance of parental choice and recognition of the unique education needs of each child while the opponents emphasize the importance of a sound, well-funded common school system open to all children regardless of their circumstances,” Hughes wrote. “While these policy arguments are understandable, this Court has no role in assessing the merits of competing policy positions but must instead exercise the ‘judicial power of the Commonwealth’ committed to it under Section 109 of the Kentucky Constitution.”

The Republican-led legislature enacted HB 563 over Democratic Gov. Andy Beshear’s veto during the 2021 session. It had initially passed the state House with a 48-47 vote.

The law created EOAs, which families meeting certain financial criteria would have qualified for and used for various educational purposes. That included paying tuition to public schools out of a student’s residing district. Families in the counties with more than 90,000 people also could have used the funds to send their children to private schools.

The EOAs would have been funded by Account-Granting Organizations. The state law set aside $25 million in annual tax credits over five years to give to individuals and corporations that donated to AGOs.

The Council for Better Education, two school boards and other public education proponents filed a lawsuit to challenge HB 563 last year, with Franklin Circuit Judge Phillip Shepherd ruling in their favor in October 2021.

Attorney General Daniel Cameron, a Republican, and lawyers for school choice advocates appealed Shepherd’s decision. In November 2021, Cameron and the plaintiffs in the case made separate requests for the matter to bypass the state Court of Appeals and go directly to the Supreme Court.

The state’s top court accepted the case in February and heard arguments two months ago.

In a statement, the Bluegrass Institute for Public Policy criticized the court’s decision, saying it “sided with opponents of educational liberty” and will keep “children trapped in failing schools.” The group also noted that the state constitution calls for “an efficient system of common schools” in Kentucky.

“Considering per-pupil funding rose by an inflation-adjusted 80% between 1990 and 2019, and yet barely one-third of all Kentucky public school students read proficiently at grade level, from whatever definition you choose, Kentucky has failed in its constitutional responsibility to provide an education system that achieves maximum results with minimum expense,” the institute stated.