Kentucky charter school funding law struck down by judge, dealing blow to school choice advocates

• A Kentucky law designed to establish a funding method for charter schools was invalidated by Judge Phillip Shepherd on Monday.
• The ruling temporarily hinders efforts to introduce charter schools in Kentucky but may fuel attempts to place a ballot measure in 2024.
• Kentucky Attorney General Daniel Cameron’s office is reviewing the ruling to determine the next steps.

A Kentucky law aimed at setting up a funding method for charter schools was struck down by a judge on Monday, dealing another setback for school choice advocates.

The decision likely stymies efforts, for now, to give charter schools a foothold in the Bluegrass State. But it could further energize efforts to put a ballot measure before Kentucky voters next year that would seek to overcome constitutional hurdles for school choice initiatives. Such a proposed constitutional amendment would have to clear the GOP-dominated legislature before reaching the statewide ballot.

In his ruling Monday, Franklin County Circuit Judge Phillip Shepherd said the 2022 law creating the funding stream for charter schools violated Kentucky’s constitution. Such publicly funded charter schools would be operated by independent groups with fewer regulations than most public schools.

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“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,” Shepherd wrote. “This `separate and unequal’ system of charter schools is inconsistent with the constitutional requirements for a common school system.”

Kentucky Attorney General Daniel Cameron’s office said it’s reviewing the ruling to determine next steps.

The measure was meant to pave the way for charter schools to open on a pilot basis while setting up the method for funding them. Democratic Gov. Andy Beshear opposed the measure, but the legislature overrode his veto in what became one of the most contentious issues of the 2022 session.

The bill’s opponents warned that it would siphon money from traditional public schools. Supporters portray charter schools as a way to give parents more choices for their children’s schooling.

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A school in Madison County is seeking to become Kentucky’s first charter school, with its application currently under review, the Lexington Herald-Leader reported.

Shepherd’s ruling, however, blocked officials from both implementing the measure and from distributing any tax dollars to charter schools under that statute.

Top Democrats in the GOP-led Kentucky House applauded the ruling, saying the constitution is “abundantly clear” that the Legislature can only authorize and fund public education.

“We said that in 2017, when charter schools were first approved; we said that again in 2022, when the law rejected today was passed; and we’ll say it once more in 2024, when there will be yet another attempt to route public tax dollars into private schools,” the Democratic lawmakers said in a statement.

Republican legislative leaders did not immediately respond to emails sent to their offices seeking comment.

The judge stressed that the vigorous debate over charter school policy was not at issue. The only issue before him, he said, was whether the legislation ran afoul of the “very specific mandates” in Kentucky’s constitution that govern public education and the expenditure of tax dollars.

“The central question in this constitutional analysis is whether the privately owned and operated ‘charter schools,’ which are established by this legislation, should be considered ‘common schools’ or ‘public schools’ within the meaning of Sections 183, 184 and 186 of the Kentucky Constitution?” he wrote.

“A review of the case law, and the plain language of the Kentucky Constitution itself, yields the inescapable conclusion that ‘charter schools’ are not ‘public schools’ or ‘common schools’ within the meaning of our state’s 1891 Constitution,” the judge added.

Shepherd said the constitution gives lawmakers a “clear path to advance the public policy” they sought to enact in the measure he struck down. That course would be through a voter referendum, he said.

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State lawmakers authorized charter schools several years ago but at the time did not provide a permanent funding mechanism. They tried to remedy that with the measure enacted in 2022.

Shepherd’s ruling striking down the 2022 law was the latest legal setback for school choice advocates.

Last year, Kentucky’s Supreme Court struck down another law meant to award tax credits for donations supporting private school tuition. The justices said those provisions violated the state constitution.

Under the measure, private donors backing the accounts would have been eligible for tax credits from the state. The grants could have been used for an array of educational expenses — including private school tuition in several of the state’s most populated counties.

Opponents warned the tax credits would cost the state treasury up to $25 million a year — money they said could go toward public education. Supporters said the measure offered opportunities for parents who want new schooling options for their children but are unable to afford them.