Kentucky Supreme Court strikes down charter school funding law

School choice advocates are criticizing the Kentucky Supreme Court’s invalidation of a law to fund public charter schools.

The court ruled Thursday that a 2022 law to fund charter schools violated the state’s responsibility to maintain a system of “common schools,” or public schools.

Although charter schools exist in 46 of the 50 states, they have faced a hard road in Kentucky, which also lacks any form of a school choice program.

The Republican-led Legislature legalized charters in 2017, but none were established because of a lack of funds. Then in 2022, a law was passed allowing public funds to flow to the schools, but the law was challenged in court.

The conservative Bluegrass Institute “expressed serious concern” about the ruling and cited examples of other schools that receive public funds besides local public schools.

“For well over a century, the General Assembly has routinely appropriated General Fund dollars to educational programs that plainly do not satisfy the court’s definition of a ‘common school,’” said Bluegrass CEO Caleb O. Brown in a release. “These include the Kentucky Schools for the Blind and Deaf, the Governor’s Scholars Program, the Governor’s School for the Arts, the Governor’s School for Entrepreneurs, the Craft and Gatton academies, Bluegrass and Appalachian Youth Challenge academies, and Kentucky Adult Learner Programs.

“These programs receive millions in General Fund appropriations. Under the court’s reasoning, every one of these appropriations is constitutionally suspect. The court does not explain how its ruling leaves these beloved programs intact, nor can it.”

Can the state fund charters?

Charters are a public-private partnership. The schools are publicly funded but privately run, offering an alternative to local public schools. Many operate with a specific focus, method or mission.

The institute said state law restricts the state’s school fund and tax dollars raised specifically for common education from going to other schools but does not restrict General Fund appropriations.

“As argued in the Bluegrass Institute’s amicus brief, the proper first question is whether HB 9 directs constitutionally restricted funds to charter schools – not whether charter schools fit a particular label,” the institute said. “If General Fund dollars fund charter schools, the constitutional analysis ends there, in favor of the law’s validity. Nothing in the record established that restricted funds, rather than General Fund appropriations, would flow to charter schools. The court’s failure to grapple with this issue raises a serious analytical gap.”

While Democratic Gov. Andy Beshear, a likely 2028 presidential candidate, celebrated the ruling, school choice advocates said the state should opt in to the federal school choice tax credit, which takes effect next year. Republican lawmakers introduced legislation Thursday that would require the state to join the program.

“Today’s ruling is a profound disappointment for every Kentucky family that has been waiting, many for years, for a real educational alternative,” said Tommy Schultz, CEO of American Federation for Children, in a release. “Although the courts have tied lawmakers’ hands on in-state options, the Education Freedom Tax Credit offers a constitutionally sound path to finally deliver choice to Kentucky families without costing the state a dime.

“Governor Beshear and all Kentucky officials have an opportunity right now to act, and we urge them to seize it. Kentucky’s children cannot afford to keep waiting.”