A Bad Day for School Choice Advocates at the Kentucky Supreme Court

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Kentucky’s Education Opportunity Account Program was launched in 2021 for the stated goal of providing “more flexibility and choices in education to Kentucky residents and to address disparities in educational options available to students.” The program works by providing money to eligible families, who may spend it on various educational needs, including private school tuition. The program is privately funded and the state offers tax credits to the private donors who support it.

Or at least the state did. In a decision issued today in Council for Better Education v. Johnson, the Kentucky Supreme Court declared the Education Opportunity Act unconstitutional under Section 184 of the Kentucky Constitution, which says “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.” According to the Kentucky Supreme Court, “applying the plain language of this section, the income tax credit raises money for nonpublic education and its characterization as a tax credit rather than an appropriation is immaterial.” In other words, because the Education Opportunity Act was not put to a vote, but, in the court’s view, the act “raises money for nonpublic education,” the act is void.

Among the litigants in the case are families who stood to benefit from the program and hoped to see it survive judicial review. They lost. Those families are represented by lawyers at the Institute for Justice, a nonprofit law firm. “We’re disappointed that the Kentucky Supreme Court adopted arguments rejected by virtually every other high court to consider them, including the U.S. Supreme Court,” said one of those lawyers, Joshua House, in a statement. “I think Kentuckians would be shocked to learn that their private donations are treated as government money, especially when that conclusion will take away educational options from lower-income families across the Commonwealth—options already available to their more affluent neighbors.”

It was a bad day for school choice advocates at the Kentucky Supreme Court.

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