Public school parents, along with a coalition of school districts, recently filed Council for Better Education v. Johnson, a lawsuit to stop a new voucher program that funnels public funds to private schools and violates the Kentucky Constitution.

The bill establishing the voucher program, HB 563, was narrowly passed by the Kentucky Legislature this year. Governor Andy Beshear vetoed the bill, but the Legislature overrode the governor’s veto. The law provides $25 million annually in tax credits to individuals and corporations in exchange for donations to third party organizations that give out private school vouchers. This voucher scheme diverts public funds from state coffers to unaccountable private schools.

There are almost no restrictions on the voucher-granting organizations, which can set their own criteria for the distribution of voucher funds to private schools. Likewise, private schools accepting these vouchers have virtually free reign to operate. They are not held to any standards of academic quality or fiscal management, nor required to meet state accountability standards. And HB 563 allows them to discriminate based on race, religion, disability, LGBTQ status, English fluency, and academic ability.

“The lack of standards, accountability, and nondiscrimination requirements for the private schools participating in the voucher program and the organizations that grant the vouchers is stunning,” said Jessica Levin, Director of Public Funds Public Schools. PFPS is a partnership of the Southern Poverty Law Center and Education Law Center that works to ensure public funds are used exclusively for public schools and not diverted to private schools.

The Council for Better Education (CBE), a nonprofit organization representing the vast majority of Kentucky’s 173 public school districts, is a plaintiff in the lawsuit to stop the voucher program. Three decades ago, CBE brought Rose v. Council for Better Education, the landmark case that affirmed the State’s obligation to provide adequate and equitable school funding to ensure all students in the state have the public education opportunities guaranteed by the constitution.

CBE is joined by individual school districts and parents whose children attend Kentucky’s public schools. Kentucky public schools already suffer from chronic and severe underfunding. The plaintiffs’ lawsuit underscores the harms caused by diverting limited tax dollars to unregulated private schools.

The complaint emphasizes that the Kentucky Supreme Court has “repeatedly held that the Constitution’s education and public funds provisions forbid the Commonwealth from funding private schools.”

The complaint makes four constitutional claims:

• The Kentucky Constitution requires the State to establish and maintain an adequately funded, uniform system of public schools. The voucher program violates this mandate by funneling public funds to unregulated private schools outside the public school system.
• The constitution mandates that public funds for education be spent only on public schools, unless private school funding provisions are approved by the voters. Kentuckians were never given the opportunity to vote on the voucher program.
• The constitution requires the State to only expend public funds for a public purpose. Because private schools are not open to all and are free to discriminate when admitting students, they do not serve the public.
• The voucher program delegates legislative authority over the essential function of providing education to third party organizations without basic safeguards.

“Public Funds Public Schools commends the plaintiffs in this crucial effort to halt the diversion of scarce public funds to unaccountable private schools, and we stand in solidarity with everyone in Kentucky who supports well-funded, welcoming public schools for all students,” said Levin.

The lawsuit was filed in the Franklin Circuit Court, a Kentucky state trial court. Shortly after filing their complaint, the plaintiffs filed a motion for temporary injunction, seeking to stop state officials from implementing the voucher program.