Kentucky’s Charter School Law Found Unconstitutional by Judge

A judge in the Franklin Circuit Court ruled on Monday that a law permitting charter schools in Kentucky is unconstitutional. This comes ahead of an anticipated attempt in the upcoming legislative session to introduce a constitutional amendment allowing public funds to be used for private schools.

Judge Phillip Shepherd invalidated House Bill 9 of 2022 in a lawsuit filed by the Council for Better Education, which represents 168 school districts in Kentucky.

Shepherd determined that charter schools are considered “private entities” and do not meet the criteria outlined in the Kentucky Constitution for “public schools” or “common schools.”

The judge stated, “The goals of the legislation are not relevant in this case. The only question at hand is whether the legislation violates the specific mandates of the Kentucky Constitution regarding public education and the use of tax dollars.”

Shepherd concluded that the definition of “common schools” cannot be stretched to include privately owned and operated schools that are exempt from the statutes and regulations governing public education.

According to Shepherd, common schools are funded by public taxes and must be open to all eligible students within the district. They must also be accountable to the taxpayers who fund them.

Regarding charter schools, Shepherd wrote, “Unlike common schools, charter schools are explicitly allowed to impose enrollment caps and limit the number of students in order to facilitate smaller class sizes. They may also reject qualified students residing in the district. Taxpayer-supported charter schools have the authority, as specified in the legislation, to restrict enrollment and conduct admissions lotteries if there is insufficient capacity to accommodate all interested students.”

The ruling comes at a time when a private school in Madison County is seeking to become Kentucky’s first charter school. Gus LaFontaine, the owner of LaFontaine Preparatory School, a pre-K to fifth-grade private school, was involved in the lawsuit.

Following the ruling, LaFontaine highlighted the fact that 45 other states, including those neighboring Kentucky, offer charter school options. He emphasized the pursuit of a judicial resolution that would empower all parents, regardless of their financial capabilities, to be involved in education freedom.

Attorney General Daniel Cameron intervened in the case to defend the law.

Tom Shelton, executive secretary of the Council for Better Education, expressed appreciation for Judge Shepherd’s ruling, stating, “The constitution specifically prohibits the privatization of public funds. Public funds are meant for public purposes.”

Democratic Governor Andy Beshear, who has consistently voiced opposition to charter schools, vetoed House Bill 9, but the Republican-led General Assembly overrode his veto. Beshear was recently reelected to a second term.

The Council for Better Education filed the lawsuit against Kentucky education officials in January, seeking a ruling that the law is unconstitutional.

In December 2022, the Kentucky Supreme Court unanimously ruled against a Kentucky law that offered a generous tax credit to help families pay for private school tuition. The opinion, which upheld a lower court ruling by Judge Shepherd, cited prior legal precedents that support the Kentucky Constitution’s prohibition on public funds being used to support private schools.

Legislation for a constitutional amendment regarding charter schools did not progress in this year’s legislative session but is expected to gather more support in 2024, when constitutional amendments will appear on the November ballot.

Following Monday’s ruling, leaders of the Kentucky House Democratic caucus issued a statement praising the decision. They emphasized the importance of adhering to the constitution and providing unwavering support for public education.

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