A judge in Kentucky struck down a 2022 state law that allows public funding for charter schools and said that it would create a “separate and unequal” system of schools that violates the state’s 1891 constitution.

In his decision, Circuity Court Judge Phillip J. Shepherd said that the law, known as HB9, violated a section in the Kentucky constitution that prohibits the collection of taxes for any educational purpose other than “common schools” without the consent of voters. Common schools are traditional public schools, which are funded by taxpayers and overseen by public entities. Charter schools are publicly funded but privately operated, sometimes by for-profit companies, and educate about 7 percent of U.S. schoolchildren.

In his ruling, Shepherd said that charter schools are not public schools or common schools as defined by the state constitution. He wrote:

The central question in this constitutional analysis is whether the privately owned and operated ‘charter schools’, which are established by this legislation, should be considered “common schools” or “public schools” within the meaning of Sections 183, 184 and 186 of the Kentucky Constitution? A review of the case law, and the plain language of the Kentucky Constitution itself, yields the inescapable conclusion that “charter schools” are not “public schools” or “common schools” within the meaning of our state’s 1891 Constitution …

This charter school legislation is effectively an attempt to bypass the system of common schools, and establish a separate class of publicly funded but privately controlled schools that have unique autonomy in management and operation of schools. This `separate and unequal’ system of charter schools is inconsistent with the constitutional requirements for a common school system. The common schools must be open to every child, and operated, managed and fully accountable to the taxpaying public.

Whether the charter schools envisioned by HB 9 are good or bad, they are outside the scope and definition of the 'common schools” defined by our Ky. Constitution

Charters operate in most U.S. states — though not yet in Kentucky — under different laws. Many state laws have lax oversight requirements, and some charter school sectors have been riddled with financial and other scandals over the years.

Supporters say that charter schools offer families an important option to schools in publicly funded districts and that parents should have a right to decide where their children go to school. Critics say that charter schools are part of the movement to privatize public education and divert funding from public schools that educate most schoolchildren. They are calling for legislative reform to hold them more accountable to the public.

A year ago, the Kentucky Supreme Court agreed with a lower court in striking down a 2021 law that established a tax credit scholarship fund that would have allowed families to use public funding to attend private and religious schools. The court referred to the same part of the Kentucky constitution as did Shepherd. “Simply stated, it puts the Commonwealth in the business of raising “sum[s] … for education other than in common schools.”

The fight in Kentucky over using public funds for schools that are not overseen by public entities is part of a national debate about the very nature of what constitutes public education. Advocates for publicly funded and operated school districts argue that only schools overseen by the public should be considered public. Florida Gov. Ron DeSantis (R) along with former U.S. education secretary Betsy DeVos and their allies have called for redefining public education. “If it’s public dollars, it’s public education,” DeSantis said in 2019 — even if public funding is used to pay for religious education at schools that are legally allowed to discriminate against some students they don’t want to be part of their community.

In 2015, the Supreme Court of Washington state struck down as unconstitutional a charter school law that narrowly passed in a 2012 referendum with major financial support from Microsoft founder Bill Gates and other wealthy philanthropists after voters had rejected similar measures three times earlier. In 2016 the legislature changed the law to meet the objections of the court, and now the state has about 20 charters. Some states have many more; California, with the most, has more than 1,200 charter schools.

Kentucky’s law, which said it was aimed at expanding “educational opportunity” for students, would have mandated that school districts spend public funding on approved charter schools, and said charters must be allowed to open. That 2022 law would have required school districts to divert funds to charter schools approved within their boundaries. The bill passed the state legislature in late 2021 by a narrow margin and was vetoed by Gov. Andy Beshear (D), but the legislature overrode his veto.

There is one proposed charter school that has been awaiting approval to open in Madison County. Louisville Public Media quoted its leader, Gus LaFontaine, as saying in a written statement: “We believe that every family deserves to be able to choose the type of education that serves their child the best. Despite this ruling, we will continue to pursue judicial resolution that results in empowering all parents to participate in education freedom; even those that are not financially capable.”

A spokesman in the office of Kentucky Attorney General Daniel Cameron said in an email, “We are reviewing the ruling to determine next steps.”

Democrats in the Kentucky House issued a statement praising Shepherd’s ruling. “The Kentucky Constitution is abundantly clear: The General Assembly can only authorize and fund public education,” the statement said. “We said that in 2017, when charter schools were first approved; we said that again in 2022, when the law rejected today was passed; and we’ll say it once more in 2024, when there will be yet another attempt to route public tax dollars into private schools. Our belief is simple: Follow the constitution and give public education our undivided support.”

Here’s Shepherd’s ruling:

CBE_Opinion and Order (2) by Valerie Strauss on Scribd