Ky. Supreme Court finds school choice measure unconstitutional

Published 3:13 pm Thursday, December 15, 2022

The Kentucky Supreme Court struck down 2021 legislation that helped fund private schools on Thursday, finding it to be unconstitutional and unanimously upholding a lower court ruling.

Last year, both the House and Senate passed House Bill 563, which was known as the Educational Opportunity Account Act, allowing Kentucky taxpayers who donate to account granting organizations (AGOs) to receive a nearly dollar-for-dollar tax credit against their income taxes. These AGOs would allocate taxpayer contributions to education opportunity accounts, known as EOAs, which are set up for eligible students. EOA funds could be used for various education-related expenses, but the primary focus was their availability to defray the costs of nonpublic school tuition for eligible students.

The bill was vetoed by Gov. Andy Beshear, a Democrat, who said the bill was unconstitutional as it violates the provision against funding private or sectarian schools. However, the Republican General Assembly overrode the veto.A lawsuit was filed at Franklin Circuit Court, where Judge Phillip Shepherd found it unconstitutional under both Section 59, the special legislation provision, since it would only affect counties with a population of 90,000 or more, and Section 184, an education provision prohibiting the raising or collecting of any sum for education “other than in common [public] schools” unless the taxation question is submitted to and approved by the voters.

“After a thorough review, we conclude the EOA Act violates Section 184 and, consequently, affirm the circuit court’s holding that the statute is unconstitutional. With this conclusion, the remaining constitutional challenges to the EOA Act are rendered moot.”

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Attorney General Daniel Cameron, who sought to have the Franklin Circuit Court ruling overturned, stated, “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.”

Gov. Beshear posted his reaction on social media: “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.”