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Judge rules Kentucky charter school law unconstitutional

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A Franklin County Judge struck down Kentucky's charter school funding law.

A law that would have allowed charter schools to get off the ground in Kentucky has been found unconstitutional by a Franklin County Judge.

That 2022 law would have required school districts to divert funds to charter schools approved within their boundaries. Charter schools are funded with public dollars, but they are run by private boards or companies.

House Bill 9 also mandated the creation of charter schools in northern Kentucky and Jefferson County Public Schools.

Proponents say charter schools offer an alternative to families who aren’t pleased with the schools run by their school district. Opponents say charter schools divert much-needed tax dollars from public schools. The Jefferson County Board of Education and the Dayton Independent Board of Education sued the state over the law, along with the nonprofit Council for Better Education.

In a ruling issued Monday, Franklin County Circuit Court Judge Phillip Shepherd found the charter school funding law in conflict with the state constitution, which calls for a “uniform and efficient system of common schools.”

Shepherd said HB 9 “sets forth a comprehensive plan to establish taxpayer funded private schools that are exempted from traditional public oversight and regulation.”

“While there is vigorous debate,” as to the merits of charter schools, Shepherd wrote, “[h]ere, the only issue is whether the legislation runs afoul of the very specific mandates of the Kentucky Constitution governing public education and the expenditure of tax dollars.”

Section 184 of Kentucky’s Constitution states that “No sum shall be raised or collected for education other than in the common schools,” unless voters approve the appropriation in a referendum.

In his opinion, Shepherd argued that charter schools cannot be considered “common schools.” Charter schools, under state law, are governed by far fewer regulations than public schools.

“There is no way to stretch the definition of ‘common schools’ so broadly that it would include such privately owned and operated schools that are exempt from the statutes and administrative regulations governing public school education,” Shepherd wrote.

He also called the legislature’s support of the measure “ironic” in light of the fact that the same body recently voted to restrict the power of public schools’ site-based decision making councils.

“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, an autonomy that the legislature itself granted but then stripped away from the common schools,” Shepherd wrote.

He has blocked the state from implementing the law. Charter advocates are likely to appeal.

There is one proposed charter school currently awaiting approval in Madison County, Kentucky. The school leader, Gus LaFontaine, is a party in the case.

“We believe that every family deserves to be able to choose the type of education that serves their child the best,” LaFontaine said in a written statement. “Despite this ruling, we will continue to pursue judicial resolution that results in empowering all parents to participate in education freedom; even those that are not financially capable.”

At the end of Shepherd’s ruling, he notes that Section 184 of the constitution “gives the legislature a clear path to advance the public policy they seek to enact in HB 9: a voter referendum.”

Section 184 of Kentucky’s Constitution has proven pesky to advocates of other school privatization measures, including the tax-credit scholarship program, which would have sent would-be tax dollars to fund private school tuition. The Kentucky Supreme Court struck down that program last December.

But instead of holding a referendum on whether to fund charters or private schools, some Republican lawmakers would like to rewrite the constitution. Republican leaders say a “school choice” amendment is likely to be discussed during the legislative session next year.

Any changes to the constitution, however, would also have to be approved in a statewide voter referendum.

In an unsigned emailed statement, the conservative Bluegrass Institute said Monday’s ruling “denies Kentucky families whose children remain trapped in failing schools the opportunity of enrolling their children in charter schools – a public-school option available to parents in 45 other states, including many with which Kentucky competes for population growth and economic development.”

In a joint statement, Kentucky House Democratic caucus leaders welcomed the ruling.

“The Kentucky Constitution is abundantly clear: The General Assembly 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. Our belief is simple: Follow the constitution and give public education our undivided support.”

This story has been updated with more information.

Support for this story was provided in part by the Jewish Heritage Fund.

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