Kentucky School Advocate
January 2024
By Brenna R. Kelly
Staff writer
A Franklin Circuit Judge has struck down a 2022 charter school funding law as unconstitutional.
In the Dec. 11 opinion, Judge Phillip Shepherd wrote that the law would create a “separate and unequal” system of “publicly funded but privately controlled schools.”
The suit, brought earlier this year by the Council for Better Education (CBE) and joined by the boards of education in Jefferson County and Dayton Independent, named the Kentucky education commissioner and Kentucky Department of Education (KDE).
“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,” Shepherd wrote.
Though charter schools have been legal in the state since 2017, the legislature did not provide a funding mechanism until it passed House Bill 9 in 2022. The 2017 law remains in effect, said KSBA Staff Attorney John Powell.
“The funding method in House Bill 9, allowing for funds to be transferred from local school boards to charter schools, is what was deemed unconstitutional by this ruling,” he said.
The portion of funding law that also required charter school pilot projects in Jefferson County and northern Kentucky is also no longer in effect, he added.
In his ruling, Shepherd said 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.”
Common schools are supported by public taxes and all children within the district who meet age requirements of the school are allowed to attend it, the judge wrote.
“The common schools must be open to every child, and operated, managed and fully accountable to the taxpaying public,” he wrote.
“Under HB 9, charter schools – unlike common schools – are specifically permitted to impose enrollment caps limiting their enrollment to a number of children who will ensure ease of instruction through small class sizes,” Shepherd wrote. “Charter schools may turn away qualified children residing in the district. As set forth in the legislation, taxpayer supported charter schools are authorized to limit their enrollment, and to ‘conduct an admissions lottery if capacity is insufficient to enroll all students who wish to attend the school.’”
Tom Shelton, executive secretary of the CBE, said the group appreciates the ruling which agreed with its argument that HB 9 violates the Kentucky Constitution.
“The constitution specifically prohibits the privatization of public funds. Public funds are for public purposes,” he said.
KDE spokeswoman Toni Konz Tatman said the department would not appeal the ruling.
“However, there are other parties to the lawsuit who may take further action,” she said.
The Kentucky Attorney General’s Office, which defended the law in court, has not said whether it will appeal the ruling to the Kentucky Court of Appeals or Supreme Court.
At the time of the charter school ruling, the Madison County Board of Education was considering a charter school application that would be the first charter school in the state.
Gus LaFontaine, who was trying to open the charter school, said he would continue to pursue “a judicial resolution that results in empowering all parents to participate in education freedom; even those that are not financially capable.”
The ruling likely adds momentum to the Republican-led legislature’s efforts to pass a constitutional amendment, which would put the issue of whether public funds could be used for non-public schools on the ballot in 2024.
A constitutional amendment must be approved by three-fifths of each legislative chamber and then a majority of Kentucky voters during the referendum. If it were to pass, it would open the door to allow charter school funding, school vouchers and scholarship tax credits in the state.