Judge Finds Kentucky School Choice Program Unconstitutional | In depth

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LOUISVILLE, Ky. (WDRB) – A judge ruled Friday that Kentucky’s new school selection law was unconstitutional.

Franklin Circuit Judge Phillip Shepherd found that the state’s education opportunity accounts, funded by donations eligible for state tax credits, violated the Kentucky Constitution because the pool of tax credits of $ 25 million cannot be collected for educational purposes “other than in common schools until the issue of taxation.” was submitted to the legal voters.

“As a result, the tax credit created by this legislation must be approved by ‘legal voters’ before it can take effect,” Shepherd said in the ruling, which is subject to appeal.

Shepherd prevented the state from enforcing the provisions of House Bill 563, the Choice of School Act, including prohibiting state officials from approving the establishment of any body that grants accounts, accounts of educational opportunities and any tax credit for these purposes.

“We knew from the start that it was unconstitutional,” said Eddie Campbell, president of the Kentucky Education Association.

“It felt good to see a judge say things that we educators were saying,” said Emilie McKiernan Blanton, JCPS teacher, parent and member of the JCTA union.

Lawyers for the Institute for Justice, which represents parents who intervened in the case, criticized Friday’s decision.

“The Kentucky Constitution does not contain any provision preventing the Commonwealth from granting tax credits to support families offering alternatives to the public school system,” Institute for Justice attorney Ben Field said. “We are anxious to justify this fact on appeal and ultimately in the Kentucky Supreme Court.”

The Better Education Council challenged the constitutionality of the school choice program in a lawsuit in June.

Tom Shelton, the organization’s executive secretary, applauded Friday’s ruling “because it supports our stated position that this part of HB563 is unconstitutional,” he said in a statement.

Attorney General Daniel Cameron’s office, who has defended the school choice law in court, said in a message to WDRB News it is still reviewing Friday’s decision and has no further comment at the time.

The education opportunity accounts were a significant legislative achievement in this year’s legislative session for school choice advocates like EdChoice Kentucky, whose president, Andrew Vandiver, said he and the families his group represents were “disappointed” with Shepherd’s decision.

“Today’s decision represents an unnecessary delay with the potential of leaving Kentucky students in classrooms that just don’t work for them. This is not the end,” Vandiver said in a statement. . “… We remain confident that the Education Opportunities Accounts Act will be upheld on appeal and that our next generation will be given the financial support necessary to reach their full potential.”

The Kentucky Education Association welcomed Friday’s decision. KEA President Eddie Campbell said the decision represents “a victory for our public schools, our public school students and the constitution of our Commonwealth.”

“HB 563 violates both the letter and the spirit of the Kentucky Constitution, which makes public education the highest duty of the state,” Campbell said in a statement. “These plaintiffs stood up for all Kentucky students to ensure that the unconstitutional actions of the legislature did not get out of hand, and the judge affirmed their concerns.”

HB 563, in part, created a tax credit pool worth $ 25 million per year for five years. Donors to groups that grant education opportunity accounts can recover up to $ 1 million in tax credits under the new law.

Flexible spending accounts, among other permitted uses, can help students in counties with a population of 90,000 or more pay private school tuition.

The program, if it survives a legal review, is only available to families who earn 175% of the federal limit to qualify for reduced school meals, or about $ 86,000 for a family of four. during the current school year.

The Council for Better Education has argued that the state’s $ 25 million in tax credits represent public financial support for private schools, while those defending the new law say the tax credit program involves private funds and is distinct from direct public credits.

“Today’s ruling treats private donations as if they were government money,” Justice Institute attorney Joshua House said on Friday. “He argues that when individuals donate their own money to education-related causes and receive tax credits for those donations, it is actually the government that collects and spends the money on education. This is simply not true. “

However, Shepherd disagreed and sided with the Better Education Council in its decision. The entire funding structure of the program depends on the state’s ability to raise and collect income taxes, he said.

“There is nothing ‘private’ or ‘charitable’ about funding (account granting agencies), and this funding mechanism is not a ‘gift’ in a meaningful sense that connotes a contribution. personal or business income volunteer, ”Shepherd said in his ruling.

“These taxpayers do not donate their own money to (the account granting agencies); they take the money they owe the state in income taxes and redirect it to (the account granting agencies). accounts), as permitted by this legislation. “

Shepherd further ruled that limiting the private school tuition element of the education opportunity accounts to counties of at least 90,000 inhabitants was also unconstitutional and “arbitrarily” excluded less populous counties that had lower populations. private schools.

“There is simply no rational basis for excluding from the tuition assistance program counties like Franklin County, Nelson County and many others with a strong existing base of private schools,” Shepherd said. “If the legislature had wanted to limit tuition assistance to counties with existing accredited private schools, it would have been simple to do so.

Instead, the legislature chose an arbitrary and discriminatory geographic classification (tied to population, not existing private school options) that excludes most counties and families from the most lucrative benefit of the legislation.”

The judge also asked if the education opportunity accounts would create a two tier model of public school funding where one group of students enjoys the flexible spending accounts while the rest of the Kentucky children remain “g completely dependent.” funding allocated to common schools of the Legislative Assembly and local school boards.

Such a funding system “raises serious questions about compliance” with the Kentucky Constitution, particularly in light of the Rose v. Council for Better Education, he wrote.

The landmark Supreme Court ruling in 1989 led to sweeping reforms to Kentucky’s education system.

“A system of subsidizing private educational opportunities for a small group of students has the potential to exacerbate inequalities in educational funding and to undermine the required uniformity of educational opportunities that was mandated at Rose,” said Shepherd said.

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