Judge rules Kentucky’s charter school law unconstitutional

by McKenna Horsley, Kentucky Lantern

A Franklin Circuit Court judge on Monday struck down a law allowing charter schools in Kentucky, ahead of an expected effort in next year’s legislature to put a constitutional amendment on the ballot that would allow public money to be spent on private schools.

Judge Phillip Shepherd declared 2022’s House Bill 9 unconstitutional in a lawsuit filed by the Council for Better Education, which represents 168 Kentucky school districts.

Shepherd wrote that charter schools are “private entities” that do not meet the Kentucky Constitution’s definition of  “public schools” or “common schools.”

 The “policy goals of the legislation are not at issue in this case,” wrote Shepherd. “Here, 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.”

Shepherd concluded 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.”

“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’.” 

The ruling comes as a private school in Madison County is seeking to become Kentucky’s first charter school. Gus LaFontaine, who owns LaFontaine Preparatory School, a pre-K to fifth-grade private school, was an intervenor in the lawsuit.

After the ruling, LaFonatine pointed out that 45 states, including those on Kentucky’s borders, offer “charter school options” and said that “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.”

Attorney General Daniel Cameron also intervened in the suit to defend the law.

Tom Shelton, executive secretary of the Council for Better Education, said “CBE appreciates the ruling from Judge Shepherd supporting our opinion that HB 9 violated our Kentucky Constitution. The constitution specifically prohibits the privatization of public funds. Public funds are for public purposes.”

Democratic Gov. Andy Beshear, who has frequently voiced opposition to charter schools, vetoed House Bill 9 but the Republican-led General Assembly overrode it. Beshear was recently reelected to a second term. 

The Council for Better Education filed its lawsuit against Kentucky education officials in January seeking the law be ruled unconstitutional. 

In December 2022, the Kentucky Supreme Court unanimously struck down a Kentucky law creating a generous tax credit to help families pay for tuition at private schools. The opinion, which upheld a circuit court ruling by Shepherd, cited a long line of precedent reinforcing the Kentucky Constitution’s ban on the state financially supporting private schools.

Legislation for a constitutional amendment on charter schools did not advance in last year’s session but is expected to have much more support this year, when constitutional amendments will be on the November ballot.

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