Kentucky School Advocate
May 2023

By Brenna R. Kelly
KSBA staff writer

Before the 2023 legislative session began, lawmakers predicted that the 30-day, non-budget session would focus on tweaking prior legislation and not on new legislation.

“We’re ready to be a little bit more deliberative and maybe not pass as many new laws. I mean, after all, we are Republicans, we’re supposed to be about smaller government,” Sen. Majority Leader Damon Thayer, R-Georgetown, said in a SpectrumNews1 interview as the session began.

But that’s not exactly what happened.

During their 30 days in Frankfort, lawmakers passed a raft of new laws, many of which have significant impacts on school boards, classroom instruction and school district operations.

Before the session, KSBA’s Director of Advocacy Eric Kennedy said he expected that parental rights legislation would be one of the General Assembly’s top priorities and that lawmakers would seek to repeal the tax on bourbon aging in barrels – a tax that currently benefits 29 school districts but has been expanding.

“In the beginning of the session, we did not know exactly what parental rights legislation would look like and how extensive it might be,” he said. “Now we know that combining Senate Bill 150 and Senate Bill 5, the bills create new rules around parental notification of curriculum and health services and around parental complaints.”

Lawmakers also passed a bill that phases out the tax on bourbon but allows school districts to recoup some the lost revenue under a new state tax.

Senate Bill 150
The parental rights in schools bill, SB 150, became the most controversial bill of the session after provisions from House Bill 470, a bill to ban gender-affirming care for minors, was added into the bill during a quickly called House Education Committee meeting.

“The goal is to strengthen parental engagement and communication in children’s education and on protecting the safety of our children,” Sen. Max Wise R-Campbellsville, the bill’s sponsor, said as the Senate voted to override Gov. Andy Beshear’s veto of the bill.

The bill requires parental notification of health and mental health services related to human sexuality and of contraception available at the school, and allows parents to decline those services. It also says students in 5th grade and below cannot receive any instruction on human sexuality and no child in any grade can receive instruction that has a goal of studying or exploring gender identity, gender expression or sexual orientation.

The bill also requires school boards to adopt a policy that students must use the bathroom or locker room that corresponds to the student’s sex at birth.

Wise said the bill protects teacher’s First Amendment Rights and “reinforces a positive atmosphere in the classroom and removes unnecessary distractions and mandating the use of specific pronouns in our schools.”

In his veto message, Beshear said the bill “turns educators and administrators into investigators that must listen in on student conversations and then knock on doors to confront and question parents and families about how students behave and/or refer to-themselves or others.”

Because the bill contained an emergency clause it is already in effect. On April 17, the Kentucky Department of Education issued guidance alerting districts they can no longer teach one of the 5th grade health standards on puberty.

The guidance noted there may also be problems with advanced placement classes and dual credit courses. The guidance urged districts to consult their board attorney because KDE believes the bill creates confusion around student privacy because of conflicts with the Family Educational Rights and Privacy Act or FERPA.

Senate Bill 5

When the bill passed the Senate 29-4, Howell, who also serves as a school board attorney, explained that the bill would allow parents “to have a voice when those items are in conflict with their family’s values and beliefs.”

Beshear did not veto the bill, but allowed it to become law without his signature.

The law directed KDE to create a policy implementing the bill, so KSBA staff worked with KDE to finalize the model policy language that is contained in the guidance and will be sent to districts as part of KSBA’s annual policy update. The law requires districts to adopt a complaint resolution policy by July 1.

“Both of those bills, SB 150 and SB 5, involve some new required local board policies,” Kennedy said. “And, as always, KSBA’s policy service staff is already well underway in crafting model policies that will comply with the law, which will be sent to all districts by the end of May for board consideration.”

House Bill 5
Lawmakers also passed a bill to repeal what’s known as the bourbon barrel tax on the final day of the session.

“We knew that after a taskforce studied this issue all last summer and fall, that it would likely see some attention this session,” Kennedy said. “We did not expect so many different versions of the bill would be considered before something passed.”

This year, 29 school boards received about $26 million in revenue from the tax on about 11.5 million barrels of bourbon aging in warehouses.

The final version of the bill slowly phases out the tax on bourbon aging in barrels paid to local entities including school boards. The tax would begin rolling back in 2026 and be eliminated by 2043.

However, the bill allows school boards to replace some of that lost revenue through a new tax on the bourbon industry, to be imposed at the state level and allocated to impacted boards. The formula for the new tax takes a district’s SEEK funding into account.

Now that the 2023 session is over, it’s a short break for legislators and education advocates. The first Interim Joint Education Committee meeting will be held at 11 a.m. on June 6.