Kentucky Remains Voucher-Free as Supreme Court Strikes Down Unconstitutional Law

Last month, the Kentucky Supreme Court unanimously struck down as unconstitutional a 2021 law establishing the state’s first private school voucher program. Upholding an earlier trial court decision, the Court ruled that the voucher law violates the state constitution’s prohibition on taxation to support nonpublic schools without voter approval.

The voucher law, HB 563, narrowly passed by the Kentucky Legislature over the governor’s veto. It provided $25 million annually in tax credits to individuals and corporations in exchange for contributions to third party organizations that give out private school vouchers. There were almost no standards of quality or accountability imposed on the voucher-granting organizations or the private schools that would accept the vouchers. The law did not prohibit discrimination in the voucher program based on race, religion, disability, LGBTQ status, English fluency, or academic ability.

The plaintiffs – public school parents, school districts, and the Council for Better Education – filed their lawsuit in June. In addition to the state officials named as defendants, the state Attorney General and the pro-voucher Institute for Justice intervened to defend the law. In October, the Circuit Court declared the voucher law unconstitutional and halted its implementation.

The Supreme Court affirmed the lower court’s ruling that the voucher law violates Section 184 of the state constitution, which provides that funds raised or collected for education may be spent only on the public schools, unless otherwise approved by the voters. The Court rejected the argument that the voucher program evades Section 184’s mandate by using a tax credit funding scheme, proclaiming “[t]he substance of this bill is obvious. The Commonwealth may not be sending tax revenues directly to fund nonpublic school tuition (or other nonpublic school costs) but it most assuredly is raising a ‘sum . . . for education other than in common schools’ by forgiving a taxpayer’s tax liability to the Commonwealth” when they contribute money to fund vouchers.

“The American public education system is one of the most powerful institutions we have for maintaining a democratic society and fostering common understanding among our people. We are gratified that the Kentucky Supreme Court unanimously recognized the tax expenditure program for what it was — an impermissible effort to circumvent the fundamental protections for public education funding in the Kentucky Constitution,” said NEA General Counsel Alice O’Brien, who argued the case for the plaintiffs.

Education Law Center, through the Public Funds Public Schools campaign, and the American Federation of Teachers, the Kentucky Conference of the NAACP, Pastors for Children, Pastors for Kentucky Children, and the Southern Education Foundation filed an amicus curiae, or “friend of the court,” brief in support of the plaintiffs. The amicus brief reviewed the growing body of research demonstrating the many ways voucher programs harm students, especially the most vulnerable, and undermine states’ fulfillment of their obligation to provide the public education opportunities guaranteed by their constitutions.

Jessica Levin is Deputy Litigation Director at Education Law Center and directs the PFPS campaign opposing vouchers.

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