Kentucky School Advocate
February 2023

By Brenna R. Kelly
KSBA staff writer

The Council for Better Education, along with two local school boards, has filed a lawsuit to stop Kentucky’s new charter school law.

The lawsuit, filed in Franklin Circuit Court in January, claims that House Bill 9, passed by the legislature in the 2022 session, violates the state’s constitution.

Unlike the charter school law passed in 2017, which did not fund the schools, the new law requires school districts to transfer both state SEEK funds and local tax dollars to charter schools.

“The Kentucky Constitution demands that public money go to public schools, and not to unaccountable schools operated outside the management and control of the school district’s elected board of education,” the lawsuit states.

The law also creates a pilot program that requires the boards of Jefferson County and a collaborative of northern Kentucky school boards to authorize at least one charter school in each of those communities. In other districts, those with fewer than 7,500 students, a charter school would have to be endorsed by the board before it could open, but in the 16 districts with more than 7,500 students, the charter school would not need a board endorsement.

The lawsuit claims that HB 9 violates at least seven sections of the state’s constitution.

“HB 9 unlawfully diverts local tax revenue levied by local boards of education to unaccountable charter schools in violation of Sections 180 and 181 of the Kentucky Constitution,” the lawsuit states. Those sections prohibit tax revenue from being used for a different purpose than which it was levied and the General Assembly from requiring local entities to impose taxes.

Jefferson County Schools and Dayton Independent Schools are co-plaintiffs in the suit, which names the Kentucky Department of Education, Commissioner Jason Glass, the Kentucky Board of Education and Chair Lu Young as defendants.

Glass said during the January Superintendents Webcast that KDE and KBE were required by the law to write and approve administrative regulations to carry out the law’s intentions, but he said he notified the legislature before the bill was passed that it would likely face a constitutional challenge.

“Those concerns that we raised were not taken into account, or acknowledged,” he said.

The department and KBE will not expend the “time and resources” to defend the charter school law, Glass said. Instead, it will be up to Attorney General Daniel Cameron to defend the law in court.

The lawsuit seeks an injunction to stop the law from being implemented while the lawsuit winds its way through the courts.