The outcome could determine whether Kentucky will join the vast majority of U.S. states with charter schools.
Franklin County Circuit Court Judge Phillip Shepherd heard arguments Wednesday in a case against the state’s new charter school funding law, known as House Bill 9.
The Republican-led legislature passed the measure in 2022. It requires school districts to transfer funding to charter schools that open inside their borders. It also mandates the creation of charter schools inside Jefferson County Public Schools and in northern Kentucky.
During the hearing, lawyers for both sides agreed that the decision hinges on whether charter schools qualify as public schools, legally. The Kentucky Constitution prohibits the use of funds raised for public education to be used outside of the system of “common schools.”
Byron Leet, an attorney with Council for Better Education, which is representing several school districts challenging the law, argued that charter schools do not meet the description of public schools under court precedent and the Kentucky Constitution.
“In the 2022 General Assembly, you can’t change the definition of common schools as it was intended at the adoption of the Constitution,” he said during the hearing.
Leet said precedent and state law define common schools as being “substantially uniform,” and “continuously monitored,” and that charter schools, which have far fewer regulations than traditional public schools, don’t meet those criteria.
Aaron Silletto, an attorney with Kentucky Attorney General Daniel Cameron’s office, argued that charter schools are “part and parcel of the common school system.”
Silletto said charter schools are a new form of public school invented by the General Assembly, noting that state lawmakers have restructured public schools at many points in state history.
“This is but the next step, or the next, perhaps even experiment, in that long line of experimentation by the General Assembly in terms of how to structure the system,” Silletto said.
Shepherd expressed skepticism toward Silletto’s arguments throughout the hearing.
“The question here is do they have the authority to restructure things so as to place the governance of a school that is fully funded by tax dollars in private hands,” Shepherd said.
The judge expressed concern with the lack of regulation of charter schools compared to public schools, and questioned whether lawmakers abdicated their duty to monitor public schools by creating charter schools.
Paul Salamanca, a University of Kentucky law professor representing a charter school applicant intervening in the case, argued that the law offers a “market-based solution to the problem of monitoring.”
Parents who don’t like how a charter school is performing can “vote with their feet” Salamanca said, and leave the school.
Salamanca is representing Gus LaFontaine, who is hoping to turn his private elementary school in Richmond into a charter school. He’s submitted his application to the Madison County Board of Education and plans to open in the fall of 2024.
“It really would open up the door for families of lesser means to be able to participate in school choice,” LaFontaine told LPM News. “It’s my reason for pursuing charter school status.”
Shepherd said he would issue a decision “as soon as possible” but any decision he makes will likely be appealed.