Private school advocates appeal ruling striking down Kentucky’s tax credit scholarship program

Nov 11, 2021

Credit Fons Cervera

Advocates of Kentucky’s new tax credit scholarship program have filed an appeal challenging a judge’s Oct. 8 ruling that the program violates Kentucky’s constitution.

The GOP-led General Assembly passed the program, known as Education Opportunity Accounts, by a slim margin earlier this year. It allows individuals and corporations to donate to a scholarship fund, and get a tax credit of up to 97% in return. The scholarship fund is managed by nonprofit organizations, which dole out scholarships to low- and middle-income families for educational expenses. In the state’s nine most populous counties, families can use the funds for private school tuition. The fund is capped at $25 million a year.

Versions of these programs are in at least 19 other states. Proponents say they give low- and middle-income families access to private education only wealthy families can usually afford. Critics say the programs drain dollars from public education and worsen educational inequalities.

 

Last month, Franklin Circuit Court Judge Phillip Shepherd sided with the plaintiffs—a group of public school parents, school districts and a nonprofit public education advocacy group called Council For Better Education. Shepherd ruled that the program violates a provision in the Kentucky Constitution that prevents tax dollars from going to private schools.

“No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters,” a provision in the state constitution reads.

Advocates of the program and their attorneys, however, argue that the funds paying for the program are not truly tax dollars because the money never technically enters state coffers. 

“Our argument the entire time has been ‘Your money is your own until the government collects it,’” Institute For Justice attorney Ben Field told WFPL. “There are no public funds involved in this program.”

Institute For Justice, an Arlington, Va.-based libertarian think tank, has won several landmark court cases defending government support of private K-12 schools. They’re intervening on behalf of two Kentucky parents who planned to apply for funds to use for private school tuition.

Attorneys with the Institute for Justice and Kentucky Attorney General Daniel Cameron’s office filed their notices of appeal Tuesday. Both parties are requesting the case be expedited to the state supreme court.

The Institute For Justice is also asking the court to stay Shepherd’s order, and allow the program to move forward throughout the appeals process.