Kentucky Supreme Court Strikes Down School Choice Measure, Drawing Strong Reactions From Both Sides

On Thursday, the Kentucky Supreme Court dealt a major legal blow to school choice advocates by declaring a controversial law permitting people to receive tax credits for donations supporting private school tuition unconstitutional.

The high court unanimously ruled that the state’s Education Opportunity Account Program was illegal, given that the state’s constitution includes provisions requiring tax dollars support “common schools.” The law’s opponents said it would have diverted state funds away from public schools.

“We are compelled to agree that the EOA Act violates the plain language of Section 184,” Deputy Chief Justice Lisabeth T. Hughes wrote for the Court. “Simply stated, it puts the Commonwealth in the business of raising ‘sum(s) … for education other than in common schools.’”

The ruling upheld a decision made by a lower court, barring the state Department of Revenue from administering the program over a year ago. The decision was welcomed by teachers’ unions, who viewed it as a major victory for public schools.

“We simply can’t afford to support two different education systems — one private and one public — on the taxpayers’ dime, and this ruling supports that concern,” said Eddie Campbell, president of the Kentucky Education Association, representing public educators across the state. “This decision is proof that the courts continue to serve as an important check against legislative overreach.”

Meanwhile, school choice proponents harshly criticized the ruling, calling it “outside of the mainstream of legal jurisprudence.”

“Today, the Kentucky Supreme Court issued a decision that will hold back thousands of Kentucky students from reaching their full potential,” EdChoice Kentucky President Andrew Vandiver said in a statement. “This effort to empower parents is too important to stop, and we will continue working to give every Kentucky student access to an education as unique as they are.”

Another organization, the Bluegrass Institute for Public Policy Solutions, which is a Kentucky-based, free market think tank, accused the court of “siding with opponents of educational liberty.”

The controversial law narrowly passed Kentucky’s Republican-dominated legislature and overcame a veto from Democratic Gov. Andy Beshear. 

The legal challenge’s focus was placed on a key part of the law, centered on creating a form of scholarship tax credits, referred to as education opportunity accounts. The lawsuit called it a “diversion of public revenues to private schools” and used that as basis to attempt to strike it down. 

The measure would have allowed private donors to be eligible for tax credits from the state, which could have been used for a number of educational expenses, including private school tuition in several of the state’s most populous counties.

Supporters said the measure offered opportunities for parents who want new schooling options for their children but are unable to afford them, while opponents warned the tax credits would cost the state treasury up to $25 million a year, which they said could go to public education instead.