A Kentucky trial court has ruled in Council for Better Education v. Johnson that a 2021 law establishing the state’s first private school voucher program violates the Kentucky Constitution and cannot be implemented.

The bill establishing the voucher program, HB 563, was narrowly passed by the Kentucky Legislature over the governor’s veto. It provides $25 million annually in tax credits to individuals and corporations in exchange for contributions to third party organizations that give out private school vouchers.

This voucher scheme diverts public funds from state coffers to unaccountable private education providers. There are almost no restrictions on the voucher-granting organizations nor the private schools that would accept the vouchers, which are not held to any standards of quality or accountability and are permitted under HB 563 to discriminate based on race, religion, disability, LGBTQ status, English fluency, and academic ability.

Plaintiffs including public school parents and districts as well as the nonprofit organization Council for Better Education filed suit in June in the Circuit Court for Franklin County, asserting that the voucher law violates numerous provisions of the state constitution. In addition to the state officials named as defendants, the state Attorney General and the pro-voucher legal group Institute for Justice intervened to defend the voucher law. The court held a hearing in September on the parties’ motions for summary judgment.

Last week, Judge Phillip J. Shepherd granted partial summary judgment to the plaintiffs, holding that the voucher law violates two separate sections of the Kentucky Constitution. First, the court determined that the voucher law violates Section 59, which prohibits laws that discriminate by singling out particular individuals or geographic locations, because it arbitrarily establishes private school tuition vouchers in only nine Kentucky counties.

Second, the court agreed with the plaintiffs that the law violates Section 184 of the state constitution, which provides that funds raised or collected for education may be spent only in the public schools, unless otherwise approved by the voters. Judge Shepherd rejected the defendants’ claim that the funds raised for the voucher program are “a ‘donation’ in any meaningful sense of

that word,” noting that the legislation permits a “favored” group of taxpayers to redirect money they owe to the state and send it to voucher-granting organizations instead. The court thus confirmed that the requirements of Section 184 could not be “evaded through the mechanism of funding this program from a tax credit rather than by a direct appropriation of tax dollars.”

The court determined that additional constitutional claims made by the plaintiffs were not ripe for summary judgment. Judge Shepherd also denied the defendants’ and intervenor-defendants’ motions for summary judgment.

Based on its determination that the voucher law violates the constitution, the trial court issued an injunction barring the State from enforcing it. This means the State cannot approve the creation of any voucher-granting organizations or the establishment of any voucher accounts, and cannot bestow tax credits for contributions to the voucher program. The Institute for Justice has indicated that it will appeal the trial court’s ruling.