Voters might have thought they settled the question of charter schools in Kentucky last year when a “school choice” amendment failed in all 120 counties.
But the state Supreme Court was told Thursday that no change in the state’s 1891 Constitution is needed to allow charter schools under a law the Republican-controlled legislature approved in 2022.
Kentucky Solicitor General Matthew Kuhn said the charter school law does not violate the constitutional mandate to “provide for an efficient system of common schools” but would instead improve the system’s efficiency by expanding opportunities.
The charter school law “fits neatly in our tradition of common schools,” said Kuhn on behalf of Republican Attorney General Russell Coleman. “In our common school system, the status quo can never be good enough.”
Lawyers for an education advocacy group and two local school districts contended the charter school law fails several constitutional tests, including a requirement that tax-funded schools be overseen by elected boards accountable to voters.
Attorney Byron Leet, representing the Council for Better Education and the Jefferson County and Dayton Independent school boards, called the law “the latest attempt by the General Assembly to redirect public school money, public funds to schools operating outside the common school system without the approval of Kentucky’s voters as required by the Constitution.”
The attorney general’s office is asking the Supreme Court to overturn a ruling by Franklin Circuit Judge Phillip Shepherd who struck down the charter school law and enjoined its implementation in December 2023.
Shepherd wrote then that the “policy goals of the legislation are not at issue in this case” but that there “is no way to stretch the definition of ‘common schools’ so broadly that it would include such privately owned and operated schools that are exempt from the statutes and administrative regulations governing public school education.”
Defending the law, Kuhn said Shepherd in his ruling had misapplied the 1989 Supreme Court opinion in Rose v. Council for Better Education, the landmark ruling that paved the way for the Kentucky Education Reform Act.
He said Shepherd’s ruling “treated Rose effectively as a straight jacket that prevents the legislature from meaningfully changing the common school system. Rose, however, requires the General Assembly to continually strive to improve on the status quo.”
Also arguing in support of the charter school law was attorney Paul Salamanca, representing Gus La Fonatine, who is seeking to open a charter school in Madison County under the 2022 law.
‘Outside looking in’
In response to questions from the justices about charter schools being allowed to turn away students when their enrollment limit is reached, Salamanca said “that’s a good problem” because it’s a sign the school is filling a need. “And HB 9 (the charter school law) has a solution. You can start another school and another school. They can keep starting … if that’s what people want.”
Both Kuhn and Salamanca told the court that 45 states have charter schools, including all the states bordering Kentucky, and praised their performance. They also likened charter schools to magnet schools in Louisville and Lexington that specialize in arts or academic rigor, saying charter schools would focus on serving at-risk youngsters who are not being well served in their current schools.
“Kentucky kids are really on the outside looking in on what has been a resounding success, especially in urban areas,” Kuhn said. “And so I really ask the court not to leave Kentucky kids on the outside looking in for this important educational development.”
Leet disputed the success of charter schools. “Let me just say there is nothing remotely resembling a consensus that charter schools are a wonderful thing. But frankly, I don’t think that’s the issue.” He said the questions before the court hinge on more than a century of legal precedent.
A provision in the law allows school boards in districts with fewer than 7,500 students to veto charter schools. Justice Angela McCormick Bisig questioned whether the provision would create discrepancies in offerings available to students across the state.
Justice Michelle M. Keller in her questions focused on the potential harms from diverting money from existing schools into charter schools that “parents or the public at large who are actually paying the taxes have no control over. … We’re going to be paying the taxes through our property assessment tax we pay now, but we will have zero control over who administers the charter schools,” Keller said, in contrast to elected local boards who now oversee school districts.
‘Million dollar question’
Justice Pamela Goodwine asked what she called the “million dollar question,” noting that since the charter school law was enacted and enjoined, the General Assembly had put on the ballot an amendment giving voters the opportunity to “empower the legislature to use public funds for charter schools.”
“Should that impact our decision, or should we just ignore the nearly two thirds of the voters who do not wish to have taxpayer funds used in this manner?” Goodwine asked.
Salamanca acknowledged that if voters had approved the amendment “we wouldn’t be here today.”
But he contended that charter schools as they would be governed and operated under the Kentucky law meet constitutional muster.
“The referendum asked whether the people of Kentucky supported the idea of the General Assembly appropriating money for schools outside the system of common schools. We are not outside the system of common schools.”
Goodwine drew a flutter of laughter when she said, “So did the legislature not know how to word the amendment on the ballot or were they trying to mislead the voters?”
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Written by Jamie Lucke. Cross-posted from the Kentucky Lantern.
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