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Kentucky’s charter school funding law draws legal challenge

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Two Kentucky school districts have joined a lawsuit challenging the state’s new charter school funding law.

Charter school opponents have filed a legal challenge to the law state lawmakers passed last year that created a way to fund charters in Kentucky.

The Jefferson County Board of Education and Dayton Independent Board of Education joined the nonprofit Council for Better Education in a lawsuit filed Friday in Franklin County Circuit Court. They say the law, known as House Bill 9, violates several provisions of the state constitution.

“The Kentucky Supreme Court has emphatically and repeatedly held that the Constitution’s education and public funds provisions forbid the Commonwealth from diverting funding intended for the common [public] schools to educational pursuits that are not under the management and control of a board of education elected under Kentucky law,” attorneys wrote.

The charter school funding bill lawmakers passed last spring was meant to allow charter schools to get off the ground in Kentucky. It requires school districts to transfer state and local funds to charter schools approved within their borders.

It also mandated the creation of two charter schools as part of a “pilot project”: one in Jefferson County and one in either Campbell or Kenton counties in northern Kentucky.

Charter schools are funded with taxpayer dollars but run by private boards and groups. They operate with far fewer regulations than regular public schools when it comes to curriculum, schedule, finances and hiring decisions. For example, charter school staff don’t have to have all the same qualifications as staff hired in regular public schools, nor do they have to negotiate with teachers’ unions. In other states, charter schools often organize their curriculum around specific themes, much like magnet schools. Advocates say the lack of regulation makes charter schools more nimble and able to innovate.

There are no charter schools in Kentucky so far.

However, the Council for Better Education echoed concerns of many charter opponents, saying the law “siphons” resources away from public school systems, and hands them over to “unaccountable private entities.”

“Children who attend public schools will be injured by the funding of charter schools and by its diversion of resources from the public schools,” attorneys wrote.

In addition, attorneys argue the law violates a provision in the constitution calling for a “uniform” and “efficient” system of common schools, or public schools, and say it unlawfully diverts taxes meant for those schools to private groups.

“HB 9 requires that charter schools be created and funded with local revenues, even if it is against the will of locally elected boards of education,” the complaint reads.

They point to a provision in the state constitution that says no “sum shall be raised or collected for education other than in common schools,” unless it’s approved by a referendum. The Council for Better Education drew on the same provision in their successful lawsuit last year against a state program that tried to send would-be tax dollars to private schools.

Charter schools and private school voucher and scholarship initiatives have survived constitutional challenges in many other states. But Council for Better Education Executive Secretary Tom Shelton said Kentucky is different.

“Our constitution is just much more strict on what the responsibility for the General Assembly is with public education and where public tax dollars can be spent,” he said, pointing to the recent decision of the Kentucky Supreme Court to strike down the state’s tax-credit scholarship program.

Finally, Council for Better Education attorneys say the pilot program in HB 9 violates other constitutional provisions that prevent state lawmakers from creating “special” legislation for some localities, but not others.

Kentucky Commissioner of Education Jason Glass and Kentucky Board of Education Chair Lu Young are named as defendants in the case. Glass previously said he would not spend department resources to defend the charter school law if a legal challenge came.

Glass reiterated that stance in a statement Tuesday.

“There are many constitutional questions surrounding HB 9 and we look forward to the courts clarifying those,” he wrote. “It will be up to the Kentucky Attorney General to defend the General Assembly’s charter school laws. The KDE and KBE will not expend its time and resources defending the General Assembly’s charter school laws as the commissioner advised the legislature of constitutional (and other) uncertainties with the law when it was being legislated."

A spokesperson for Kentucky Attorney General Daniel Cameron’s office did not immediately respond to request for comment.

Dayton Independent School District Superintendent Jay Brewer sent an emailed statement, saying the district finds the provisions of HB 9, “to be unacceptable for our Kentucky kids.”

“We are proud to join in the legal challenge against HB 9,” Brewer wrote.

Dayton Independent, in northern Kentucky, was a plaintiff in the landmark Rose vs. Council for Better Education case, which found the Kentucky General Assembly had failed to adequately fund and manage public schools. It prompted an overhaul of the state’s education system known as the Kentucky Education Reform Act of 1990.

A Jefferson County Public Schools spokesperson said the lawsuit speaks for itself.

A spokesperson for Kentucky Senate President Robert Stivers declined to comment and referred LPM to the office of Kentucky House Speaker David Osborne.

“We are aware of the challenge and are reviewing the filing," Osborne said, according to a statement sent by a spokesperson. "Regardless, we remain committed to ensuring that the parents and children of Kentucky have access to the educational resources they need. Charter schools are public schools and could provide districts flexibility to meet the needs of their students.”

Jess Clark is LPMs Education and Learning Reporter. Email Jess at jclark@lpm.org.