Kentucky Supreme Court crushes charter school scheme to drain public education funding
The unanimous ruling affirmed taxpayer dollars must fund accountable public schools, not privatized alternatives backed by conservatives
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When it comes to education, Kentucky’s constitution makes clear that the state has the responsibility of providing “an efficient system of common schools,” by which they mean public schools.
That means no taxpayer dollars can fund private religious schools, public charter schools, or public charter schools that function as private religious schools. But as we’ve seen in Oklahoma and Tennessee, Christian Nationalists have been desperately trying to use taxpayer dollars to fund their private religious schools by acting like they’re public charter schools. So far, it hasn’t worked.
In 2022, Republicans in Kentucky passed a bill (HB 9) that would have opened the door to public funding of charter schools. Gov. Andy Beshear, a Democrat, vetoed it, but Republican lawmakers overrode his veto. It wasn’t enough, though. In late 2023, a circuit court judge ruled against the law’s constitutionality because, simply put, charter schools lacked the same kind of legal accountability that existed for public schools. That decision was appealed all the way to the state’s Supreme Court.
In the meantime, in 2024, Republicans tried to get voters to approve a Constitutional amendment: They asked if voters would support a change allowing the legislature to offer state funding “outside the system of common schools.”
Voters overwhelmingly said no by a roughly 2-1 margin.
That meant the state’s Supreme Court was the last chance for conservatives to achieve their goal of siphoning money from the public school system in order to fund charter schools that couldn’t be held accountable to voters or taxpayers in the same way public schools boards can.
Last week, thankfully, the Kentucky Supreme Court unanimously rejected the change. They basically said charter schools couldn’t be treated like public schools because they operated under different rules:
A charter school may limit its admissions. They are not required to educate every child eligible for admission because they are outside the regulatory scope of the local school district… which is required to educate every child… Charter schools are not required to answer to local school districts nor be accountable to them in any way; therefore, they are outside of their scope. Being outside of the scope of the requirement of the statutory definition of the common school system, charter schools fail to meet the definition required of a common school.
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Thus, the definition of public school is a school established by law, regulated by local state authorities in school districts, funded by taxes, and open and free to all children residing in that geographical district. Charter schools, by statute, are not regulated by local state authorities in school districts, are not regulated by the rules set out by the state authorities for schools, even if excluded from school districts, and therefore they are not a common school under Sections 183 and 184 of the Kentucky Constitution.
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“We cannot sell the people of Kentucky a mule and call it a horse, even if we believe the public needs a mule”… Innovation is welcome; circumvention is not.
Another judge, concurring with the decision, added that only three counties in the state met the regulatory guidelines to open charter schools, meaning 117 counties wouldn’t even be able to take advantage of the proposed program—another reason this was unconstitutional:
Immediately after this decision was released, Kentucky Republicans filed a new bill, HB 1, that would allow Kentucky to take advantage of a federal program that would give tax breaks to families that enroll their kids in a private school—harming public schools even more. Democrats in the Kentucky House said it was “yet another attempt to undermine our public schools.”
Under HB 1, Kentucky would participate in the new elementary and secondary education scholarship federal tax credit established for individuals who make contributions to scholarship granting organizations. SGOs are nonprofits that accept contributions and use the funds to provide scholarships for education-related services at private or public schools, including tuition, fees, tutoring and classroom supplies.
Families can choose to use the scholarship to send their child to a private school, pay for tutoring or provide other educational supports.
Republicans will stop at nothing to destroy public education, and they’re not going to let any court get in their way. All the more reason people need to oppose these shenanigans vigilantly.
That’s also why this is a church/state separation story as much as it is one about education policy. If the door is open to charter schools, you can bet it won’t be long before conservatives try to establish public religious schools. That’s literally what they’ve been trying to do in Oklahoma and Tennessee.
“The Kentucky Constitution protects a public school system that is adequate, uniform and accountable to the public,” says FFRF Action Fund Senior Policy Counsel Ryan Jayne. “This decision is a powerful reminder that legislatures cannot sidestep constitutional limits simply by rebranding privatization schemes.”
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“Rather than respecting both the Constitution and the will of Kentucky voters, some lawmakers appear determined to push forward with yet another scheme to siphon public dollars into unaccountable private education,” says Jayne. “That approach is both legally suspect and deeply unpopular.”
What’s important to take away from this ruling is the idea that charter schools are not just another form of public education. They are publicly funded institutions deliberately designed to operate outside the public’s control. They can pick and choose which students attend their schools. They answer to private boards instead of elected ones. They operate without the same requirements of transparency. That’s why taxpayers shouldn’t be funding them despite conservatives’ best efforts.
The Kentucky Supreme Court saw through that deception and plainly said what Republicans will never tell you: You can’t take something that’s private, pretend that it’s public, and use that label to raid the state treasury.
If Republicans ever listened to the people in their state, they would know how unpopular that idea is. That failed amendment in 2024 should have been the end of the conversation. But instead of respecting voters, Republican lawmakers are once again trying to jam through legislation that the people—and the law—oppose.
Their efforts should also remind us about the value of public education.
They serve everyone. They’re accountable to voters. They’re transparent. Private schools and charter schools don’t play by those rules. Much like Christian movies and music, private religious schools are too often attempts to replicate what’s already working… but without the substance. They’re lesser versions of what’s already available to people who aren’t guided solely by their religious ideology. Instead of fighting to make public schools better for everyone, conservatives want to make them worse. They don’t care if strong public schools stabilize communities, strengthen local economies, and ensure that every child—regardless of background—has access to education.
That’s why we can breathe a sigh of relief over the Kentucky Supreme Court’s ruling. They didn’t just block an unconstitutional law; they reaffirmed that public education belongs to everyone.
One of the most deceptive things about public versus private education is the way private schools control admission and retention in ways public schools cannot. Thus, it can easily appear to show private schools to be out-performing public schools. At the end of the day, the people pushing for private school funding at tax-payer expense really aren’t all that interested in education. Indoctrination into a particular religious tribe is the ultimate goal, and that cannot be funded by our secular government. I suspect the people pushing this measure would go out of their minds at the mere suggestion an Islamic school receive public money.
Good news is always appreciated.