Kentucky’s charter school prohibition

Forty-five states have passed legislation allowing charter schools, but only one—Kentucky—has never outlined whether the state, local school districts, or cities would fund them. When Kentucky finally passed such a funding law, it sparked a court case that led to the state Supreme Court blocking the state’s charter schools from opening at all.

Last Thursday, the Kentucky Supreme Court brought down the hammer on the state’s charter school funding. Kentucky’s highest court found that the law establishing public funding for charter schools was unconstitutional, ruling that state funds “are for common schools and for nothing else.” School choice advocates call the court’s ruling a major setback and say it limits educational opportunities for Kentucky students and families.

“[Charter schools] give kids choices among a range of different themed schools, whether it might be a STEM school, or a Montessori school, a Spanish immersion school, that wouldn’t be available within the traditional public school system,” said Nicole Garnett, a law professor at the University of Notre Dame. “That’s the kind of opportunity and innovation that the Kentucky Supreme Court has taken off the table.”

Charter schools are operated by independent groups under a governmental contract, or charter. They offer tuition-free education and have fewer restrictions and oversight, allowing them to tailor curriculum, programming, and staffing. Supporters of charter schools argue that the funding promotes parental choice. Opponents contend that funding such schools diverts much-needed money from existing public schools.

Kentucky legalized charter schools in 2017 under former Gov. Matt Bevin, a Republican. But the law building a mechanism to fund the schools wasn’t passed until 2022, when a Republican-dominated state legislature enacted the law, overriding Democrat Gov. Andy Beshear’s veto​​.​​​​​​​​​​​ A subsequent legal battle has since prevented charter schools from opening in the state.

The Council for Better Education, which represents a coalition of school districts, sued the state over its funding law in 2023. It alleged that Kentucky’s constitution blocks funding for schools that are outside the system of “common schools.” Charter schools can’t fall under the “common” label since they are fundamentally different from traditional public schools, the districts argued.

In 2023, a lower court sided with the school districts and struck down the 2022 law. The Kentucky Office of the Attorney General appealed, arguing that education is a fundamental right for Kentucky residents and that legislators have a responsibility to establish an efficient system of common schools.

Last week, the Kentucky Supreme Court unanimously ruled against the state. “The [Kentucky] Constitution, as it stands, is clear that it does not permit funneling public education funds outside the common public school system,” Justice Michelle Keller wrote in the opinion. “The mandate implicates state education funds are for common schools and for nothing else.”

Keller said that if voters wanted to fund charter schools, they would need to amend the constitution. But she said voters had already rejected the opportunity to do so in 2024.

“Kentucky voters steeled the constitutional backbone of educational funding as strictly reserved for the common-school system,” Keller noted.

The court’s ruling has garnered both praise and criticism. The Kentucky Education Association, which is the statewide labor union for public K-12 teachers, said the ruling had put the issue to bed. Gov. Beshear said taxpayer dollars needed to stay with already underfunded public schools.

But the National Alliance for Public Charter Schools called the decision “the most poorly reasoned legal opinion in the 35 years of the charter school movement.” It claimed the court’s reasoning could call into question the constitutionality of other state-funded Kentucky schools, such as magnet schools or schools for the blind and deaf.

Kentucky Attorney General Russell Coleman said in a statement to WORLD that the court’s decision to limit educational choices “marks a sad day for Kentucky’s children.”

The ruling makes Kentucky an outlier state when it comes to providing a range of educational opportunities for students, said Garnett, the Notre Dame professor. In 2022, the Kentucky Supreme Court struck down a law aimed at providing funds for private schools through tax-incentivized donations. These two rulings have made educational options for Kentucky parents limited and difficult to access, she said.

Thursday’s ruling doesn’t affect religious schools, as currently all charter schools are required to be secular, Garnett noted. But last year, the U.S. Supreme Court deadlocked on a case weighing whether charter schools could be religious in Oklahoma. A similar battle is brewing in Tennessee, and supporters of a charter school in Colorado claim it is the state’s “first public Christian school.”

Back in Kentucky, there is no option to appeal the state Supreme Court’s ruling on charter school funding, said Brad Jacob, a constitutional law expert at Regent University School of Law. The case deals with the state constitution, not the federal one, so the U.S. Supreme Court can’t evaluate the issue.

“There’s no federal constitutional right to have state government pay for education at a nonpublic school,” Jacob said. “If [the state] just says, ‘We don’t fund charter schools,’ I think that’s the state’s prerogative, and that’s it. We’re done. That’s all there is to say.”