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December 2021

The fight for school choice in Kentucky - an update

Education history was made in Kentucky earlier this year when the state legislature passed - over the expected veto of Gov. Andy Beshear - one of the nation's most expansive school choice laws. But now the education establishment, in a last ditch effort to preserve their monopoly, is trying to use the court system to stop the law from being implemented. In this post I'll try to provide background on this issue, where things now stand, and what comes next.

Background on HB 563: The Education Opportunities Account (EOA) Act

HB 563 did two major things: a) changed state law to make it easier for families to choose a public school outside of the district where they reside, and b) set up a tax credit that encouraged private donations to scholarship programs (called educational opportunity accounts) that help low- and middle-income Kentucky families afford a wide variety of educational services. In the final version of HB 563, those services included using the private scholarship funds to offset tuition costs to attend private schools, but only for families in Kentucky's eight largest counties. 

Private scholarship programs to help families attend private schools already exist but the demand for these scholarship dollars far outpaces the amount of donations they currently receive. HB 563 encourages more donations by providing a non-refundable tax credit to donors. You can read more about HB 563 and how it works here.

Opposition from the education establishment - and their allies

The public school establishment opposes school choice in all its forms (scholarship tax credits, charter schools, vouchers, etc.) because they believe if families actually use these policies to choose a different school for their child, they will lose funding in one way or another. Of course, taking such a stand assumes that education dollars are for propping up systems (government run schools, their employees, and their infrastructure) rather than for helping students.

Here in Bowling Green, no one EVER says we are "stealing money" from Greenview Hospital if someone uses their Medicare benefit at the Medical Center. We don't think that way because we understand that Medicare is a benefit for individuals who should get a choice in who provides their care. It should be the same for education, except that we have a massive education bureaucracy that thinks taxpayers owe THEM something regardless of whether parents are satisfied with the education they are getting. They want to preserve their monopoly on education delivery for low and middle income families (higher income families already have school choice; they can buy houses in their desired school zone or afford tuition for a private school).

But in the case of HB 563, we are not talking about a transfer of public dollars like Medicare, but rather private dollars that are freely donated by individuals to help give families additional educational choices. Read more about how the arguments of opponents of EOA's don't make sense here and why it's wrong to ever argue that school choice "steals money from public schools" here.

Nevertheless, the education establishment in Kentucky is the single most powerful lobby in Frankfort, and they exerted enormous pressure on lawmakers to keep this bill from becoming law. Ultimately HB 563 passed the Kentucky House of Representatives by only one vote. Here in Warren County where I live, not a single member of the county's House delegation voted in support of school choice. In other words, "conservative" Republicans Reps. Sheldon, Meredith, Petrie, Riley, and McPherson all voted with ultra-left Rep. Patti Minter and Governor Andy Beshear in opposing the bill (McPherson voted no in spite of having signed a pledge to support school choice legislation). Happily, Sen. Mike Wilson of Warren County is one of Kentucky's long-standing and most stalwart supporters of school choice, and both the Senate and House overrode the Governor's expected veto of the bill.

Using the courts to preserve the education monopoly

We know from the experience of other states that when the education establishment loses a fight in the legislature, their very next move is to try to stop families from exercising their new education opportunities by suing in court. That's exactly what happened next.

In August, the so-called Council for Better Education, which is essentially a collaboration of public school districts, and led by the Warren County Public Schools, filed a lawsuit to stop implementation of HB 563. Participating districts agreed to commit at least 50 cents for every student enrolled to the legal effort. For Warren County, this means approximately $8,000 of taxpayer money will be used to stop Warren County families from access schooling options other than those offered by the Warren County Schools. 

Their shameless effort met with temporary success, however. In October, Franklin Circuit's reliably biased Judge Philip Shepherd sided with the districts and ruled that the EOA provision of HB 563 was illegal under Kentucky's Constitution. Shepherd ruled that the tax credit provision is an indirect appropriation of tax dollars to religious schools, something that is specifically forbidden under Kentucky's Constitution, even though a multitude of other court cases related to scholarship tax credits, including a ruling by the United State Supreme Court, rejects this logic. Shepherd also argued that singling out the 8 largest counties for family eligibility violated Kentucky's provision against "special legislation" but applies a legal standard previously unheard of in case law related to this issue.

Lawyers with the Institute for Justice, which is representing parents in the case, have appealed to the Kentucky Supreme Court and are confident based on Kentucky law and legal precedent that HB 563 will be upheld. I would love to see a hearing and rulings from the Supreme Court before the end of the calendar year, but it may well be into the next state legislative session, which begins in January, before we know the fate of the bill.

Where we go next: fund students, not systems

Regardless of when the legal challenge against EOA's is resolved, the state legislature needs to keep up its momentum with school choice. Lawmakers should expand HB 563 to make families eligible to participate statewide (which would deny the districts one of their legal arguments) and to remove a 5-year sunset provision that will make the law disappear if the legislature doesn't take action, as well as create a provision that will allow the program to expand if scholarship programs are successful in raising money for eligible students.

Beyond the EOA Act, however, lawmakers need to advance the idea that education dollars are for funding students, not systems. Education should be like every other highly personal public good that receives a public subsidy, including Medicare, Medicaid, Pell grants, and even the food stamp program, which gives beneficiaries the chance to choose a provider that best meets their needs. 

Finally, local boards of education that are using taxpayer dollars and public resources to oppose school choice should be held accountable to voters. Board members represent taxpayers and families, not the education bureaucracy, and voters need to remind them of that in the most direct kind of way.