The Kentucky Supreme Court is scheduled to hear arguments Thursday about whether a law on charter school funding violates the state constitution.
In 2022, the General Assembly approved HB 9, setting up a funding mechanism for charter schools. The legislation stipulated that charter school students receive funding comparable to their peers in traditional public schools by releasing the state's per-pupil SEEK funds to follow students to public schools. SEEK, or the Support Education Excellence in Kentucky funding program, is the formula used by the state to decide the exact allocation of public support given to each school district.
The bill also required local districts to share a portion of property tax revenue with charter schools.
However, a Franklin County circuit judge ruled in 2023 the measure was unlawful. Judge Philip Shepard wrote the Kentucky Constitution prohibits the use of tax dollars funding non-public education. That opinion is also held by the Kentucky ACLU.
“Private schools are not subject to the same rules that public schools are," said the group's advocacy director, Kate Miller. "Public schools are required to provide education to all Kentucky kids and that’s why we use public dollars to fund those schools.”
In his ruling, Judge Shepard wrote the law would "establish a separate class of publicly funded but privately controlled schools" that would create a "separate and unequal" system."
The libertarian free-market Bluegrass Institute filed an amicus brief in support of the law. President Jim Waters argues charter schools are public schools, only more innovative.
“What about the academies like the Gatton Academy and the Craft Academy, and the Kentucky School for the Blind and the Kentucky School for the Deaf?," Waters asked in an interview with WKU Public Radio, referencing residential academies at Western Kentucky University and Morehead State University that feature some of the state's best high school juniors and seniors. "Those are not traditional public schools and yet we have no problem funding them with public dollars.”
The Bluegrass Institute considers Judge Shepard's ruling flawed because it focuses on whether charter schools are “common schools” under Section 184 of the Kentucky Constitution, rather than addressing the legislature’s authority to fund such schools using the state’s General Fund.
The brief asserts that the Kentucky Constitution limits the power to raise new taxes, but doesn't restrict the General Assembly's power to allocate General Fund appropriations to charter schools.
The Council for Better Education, a group that promotes public schools, filed the lawsuit that resulted in Judge Shepard’s ruling.
Kentucky Republican Attorney General Russell Coleman is appealing the ruling and both sides will give arguments Thursday before the state Supreme Court at 10 a.m. eastern at Centre College in Danville. The proceedings will be live streamed on Kentucky Educational Television.
Charter schools receive government funding, but operate with a degree of autonomy from local public school districts. Charter schools are open to all students, depending on capacity, and don't charge tuition. Underserved demographics, including low-income and minorities, often make up the highest percentage of charter school students.
Although charter schools have been legal in Kentucky since 2017, none have opened because there’s been no state appropriation in support of them.
The Republican-dominated legislature put a constitutional amendment on the 2024 ballot, known as Amendment 2. It asked voters if they wanted to change the state constitution to allow the General Assembly spend tax dollars on educational opportunities outside the public school system.
A substantial majority of Kentucky voters rejected the proposed constitutional amendment.
Forty-seven states and the District of Columbia have enacted legislation allowing for the creation of charter schools. However, they aren't operational or don't receive public funding in a few of those states due to ongoing legal and political challenges.
