KY: A Constitutional Voucher Amendment

School privatizers wanted school vouchers for Kentucky. But they ran into two problems:

1) A constitution

2) Judges who can read the constitution

Lawmakers had passed a tax credit scholarship program, the kind of program where rich folks can send money to a private school instead of paying their taxes. 

Tax credit scholarships are popular with voucherphiles because they allow folks to argue, "Hey, this isn't giving public dollars to a religious school, because the state never touches the dollars in the first place." 

This is not a good faith serious argument. I often explain it this way:

You love a certain brand of pickle. Your spouse says that the family already has some perfectly good pickles, and under no circumstances will they allow you to spend household budget money on your brand of pickles. So you make a deal with your employer; when it’s time to pay you, they will spend $50 of what they would have paid you to buy pickles instead, the give you the pickles and a check that is $50 lighter. Go ahead and tell your spouse that there's no reason to get upset because you didn't spend any money on pickles. Your spouse is still fully aware that the household budget is $50 short.

Section 184 of the Kentucky constitution has some straightforward language about funding education, including:

No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation

Kentucky’s Attorney General, arguing for the voucher plan, tried to assert a reading of the law that allowed for tax credit scholarships. The court replied, “We respectfully decline to construe the Constitution in a way that would avoid its plain meaning.”

“[T]he funds at issue are sums legally owed to the Commonwealth of Kentucky and subject to collection for public use including allocation to the Department of Education for primary and secondary education” and reallocating them to private school tuition is unconstitutional.

Deputy Chief Justice Lisabeth T. Hughes wrote “Simply stated, it puts the Commonwealth in the business of raising sum(s) . . . for education other than in common schools.”

Put another way by the court, “The money at issue cannot be characterized as simply private funds, rather it represents the tax liability that the taxpayer would otherwise owe.”

In short, the Kentucky constitution says "No taxpayer dollars for anything other than public schools. And that includes those tax liabilities y'all are trying to sneak behind your backs there."

That was back at the end of 2022. Then, another setback for choicers. A year later, Franklin County Circuit Court Judge Phillip Shepherd ruled against the funding law set up to promote charter schools in the state.

Wrote Shepherd in his ruling, “Whether the charter schools envisioned by HB 9 are good or bad, they are outside the scope and definition of the ‘common schools’ defined by our Ky. Constitution.” Citing the many ways in which the charter law allows charter schools to operate outside of the laws governing public schools, Shepherd concluded

This charter school legislation is effectively an attempt to bypass the system of common schools, and establish a separate class of publicly funded but privately controlled schools that have unique autonomy in management and operation of schools... This “separate and unequal” system of charter schools is inconsistent with the constitutional requirements for a common school system.

Shepherd also pointed to Section 186 of the state constitution, which he quoted in its entirety:

The violation of Section 186 of the Ky. Constitution is even more clear. That provision requires that “All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth, and for no other purpose, and the General Assembly shall by general law prescribe the manner of the distribution of the public school fund among the school districts and its use for public school purposes.” (Emphasis supplied). To take tax dollars to support these privately owned and operated charter schools is flatly inconsistent with the mandate of Section 186 of the Ky. Constitution.

Frustrated Kentucky privatizers only had one real option, and that option was proposed in January of this year. HB 2 proposes a constitutional amendment that would fix all that restrictive public school language and make it okee dokee for taxpayer dollars to be spent on charter and voucher schools. It's not complicated; the new language says

The General Assembly may provide financial support for the education of students outside the system of common schools. The General Assembly may exercise this authority by law, Sections 59, 60, 171, 183, 184, 186, and 189 of this Constitution notwithstanding.

HB 2 will put the new language on the November ballot in Kentucky. The debate is the same old same old-- the GOP says "we need to give poor kids a chance" and the Dems say "So, give more support to the schools that most of them already attend."

Kentucky is way behind the curve on these issues, so much so that journalists include lines like "Advocates of government support for private and charter schools refer to such efforts as 'school choice' initiatives." just in case readers don't know what "school choice" refers to.

Protect Our Schools KY has been launched by public education supporters, including teachers, administrators, and other supporters. Louisville Puiblic Media reported from Perry County.

Sawyer Noe, a recent graduate of Knott County Schools, said the constitutional change would divert funding from public schools.

“Not only are we being asked to allow our tax dollars to subsidize a private education for the select few, but we are being asked to do so at a time when public schools are having to cut critical services,” Noe said.

The actual question on the ballot will be

To give parents choices in educational opportunities for their children, are you in favor of enabling the General Assembly to provide financial support for the education costs of students in kindergarten through 12th grade who are outside the system of common (public) schools by amending the Constitution of Kentucky as stated below?

Here's hoping that public school supporters are able to muster a hefty heap of "no" in November.