UPDATE: EdChoice Kentucky on Supreme Court announcement in school choice case

Decision bypasses the state Court of Appeals

UPDATE POSTED 1 P.M. FEB. 24, 2022

FRANKFORT, Ky. (WTVQ) –  The Kentucky Supreme Court put a lawsuit against omnibus school choice legislation passed last year by the General Assembly on a fast track Thursday by granting a motion to transfer the case to the state’s highest court. Thursday, EdChoice Kentucky President Andrew Vandiver released the following statement regarding the decision:

“Kentucky families are eagerly awaiting the final go-ahead that they can receive the resources and flexibility needed for their children to succeed. Kentucky legislators boldly stood for students in 2021 when they passed this law, and every state supreme court that has considered a similar system has ultimately sided with parents who want a say in their children’s education.

We are inspired by the courage of Akia McNeary and Nancy Deaton for standing in this lawsuit on behalf of the thousands of parents, grandparents and guardians who simply want a better future for their children. And we are grateful for the Kentucky Attorney General and the Institute for Justice for defending the Education Opportunity Account program.”

Supporters say House Bill 563 creates education opportunity accounts funded by tax credits to provide financial assistance to students wishing to attend nonpublic schools in counties with more than 90,000 residents who come from homes with incomes at or below 175% of the federal poverty level.

After Franklin Circuit Court Judge Phillips Shepherd ruled in October the legislation is unconstitutional, Institute for Justice attorneys filed a motion to have the case bypass the state Court of Appeals and sent directly to the Kentucky Supreme Court.

“We’re optimistic that when this legal process is concluded, the Supreme Court will adhere to the will of the people’s representatives and open the door to a better education and brighter future for thousands of Kentucky students,” Bluegrass Institute president and CEO Jim Waters said.

The lawsuit was filed by the Council for Better Education, a group comprised of administrators from most of Kentucky’s public school districts, which solicited local districts in order to fund the legal action.

HB 563, which the General Assembly passed by overriding Gov. Andy Beshear’s veto, also offers qualifying public, private and homeschool students in all 120 Kentucky counties access to EOAs to provide supplemental educational services and supplies, such as tutoring and textbooks.


LEXINGTON, Ky. (UPDATE) (WTVQ) – A Northern Kentucky mother is fighting back after a judge ruled the school choice bill was unconstitutional.

“School is not a one size fit all for every child,” said Akia McNeary.

Akia McNeary has been an advocate for the Kentucky ‘School Choice Program’ since the beginning. As a mother of four with three school aged children, she says the option to give them the best educational choice possible is what matters most.

She says one of her kids wasn’t getting the proper education he deserved.

“He was going to a public school out here in Kentucky and they were not proficient and distinguished in reading and math, so why shouldn’t I have the choice to send my son to a school that is proficient in reading and math, why can’t I have that option as a parent?”said McNeary.

But, on Friday Franklin Circuit Judge Phillip Shepherd ruled that Kentucky’s constitution prohibits a part of the new school choice state law enabling donors to get tax credits for supporting private school tuition.

The Kentucky Education Association applauding the decision saying “We applaud the decision of judge shepherd for upholding the constitution of Kentucky against an attempt to divert tax dollars from our public schools and students into the pockets of big corporations and wealthy individuals.”

McNeary however, was left disappointed and worried.

“Frustration, trying to figure out like if this bill doesn’t go through, how my kids are going to continue going to the private school that they go to.”

She says she’s been working overtime, preparing herself financially in order to keep her kids private school, in case the ruling turned out like it did.

“My personal testimony is I graduated High School with a fourth grade reading level and didn’t know that and I don’t think any kid should not be able to dream as big as they want to dream because of lack of education.”

But, her fight for the program doesn’t stop here…McNeary along with other parents, and the Institute for Justice will appeal the ruling.

The Institute for Justice says that process will happen in the next week or two, saying:

“The Kentucky constitution has no provisions that prevent the commonwealth from providing tax credits to support giving families alternatives to the public school system, and that they ” look forward to vindicating this fact on appeal and ultimately at the Kentucky supreme court.”


FRANKFORT, Ky. (ORIGINAL STORY) (WTVQ) – A circuit court judge ruled Friday the state’s new school choice law is unconstitutional, but the legal fight over what many conservatives considered one of the Legislature’s crowning achievements this spring is likely far from over.

Kentucky’s new school choice program is unconstitutional, a judge ruled Friday.

Franklin Circuit Court Judge Phillip Shepherd’s decision blocked, at least temporarily, further implementation of the state’s new education opportunity account program, which was established when House Bill 563 narrowly passed the House and Senate.

The ruling dealt with parts of the law, blocking the approval of education opportunity accounts and the granting of tax credits to fund them. The ruling and lawsuit that prompted it did not deal with open enrollment policies which also were part of HB 563 so that remains in place.

The 27-page ruling also leaves open some other issues to be argued and considered. But in the portion released Friday, Shepherd summed up the arguments on both sides, noting, “This Court does not dispute that many students and their families, both in public and private schools, could greatly benefit from the financial assistance provided for in this legislation.

“Yet, the very fact that so many children need additional educational assistance, beyond what is presently funded and appropriated for the public schools, is an indication that we, as a state, may well be falling short of the constitutional mandate of ‘an efficient system of common schools’ as defined in the Rose case,” he continued, citing previous case law.

Supporters of school choice were disappointed.

“Educational choice has transformed the lives of young people in communities around America. Kentucky students deserve those same opportunities to build a learning environment as unique as they are,” EdChoice Kentucky President Andrew Vandiver said in a statement.

“That’s why EdChoice Kentucky and all of the families we represent are disappointed the Franklin Circuit Court broke with judges across the county, including the U.S. Supreme Court, and blocked Kentucky’s expansive educational choice program. Stakeholders and legislators invested considerable time and effort to design a workable program that will help Kentucky parents access the right education for their children. Today’s ruling represents an unnecessary delay with the potential to leave Kentucky’s students in classrooms that just don’t work for them. This is not the end.

“EdChoice Kentucky and our partners will keep fighting to give Kentucky parents the resources they need to move their students to head of the class. We remain confident the Education Opportunity Accounts Act will be upheld on appeal and our next generation will get the financial support necessary to reach for their full potential,” he concluded in a statement.

Similarly, the Institutes for Justice, which intervened in the case on behalf of supporters, said it plans to appeal.

“Today’s ruling treats private donations as if they are government money,” said Joshua House, an attorney with the group. “It holds that when private individuals donate their own money to education-related causes, and receive tax credits for those donations, it is in effect the government raising and spending money on education. That’s just wrong.”

By contrast, the state’s teachers’ union applauded the ruling for protecting public education.

A coalition of plaintiffs, including the Council for Better Education, filed suit in June challenging the constitutionality of the law. The Kentucky Education Association has expressed its support for the plaintiffs.

“We applaud the decision of Judge Shepherd today for upholding the constitution of Kentucky against an attempt to divert tax dollars from our public schools and students into the pockets of big corporations and wealthy individuals. This is a victory for our public schools, our public school students, and our Commonwealth’s constitution,” said Kentucky Education Association President Eddie Campbell.

“HB 563 violates both the letter and the spirit of the Kentucky Constitution, which makes providing public education the state’s highest duty. These plaintiffs stood up for all Kentucky students to ensure that the legislature’s unconstitutional actions did not go unchecked, and the judge has affirmed their concerns. Under the Kentucky Constitution, the General Assembly must provide for and oversee an efficient system of common schools and cannot raise or spend funds on private schools that serve a select few. Judge Shepherd ruled that HB 563 violated that sound precedent as determined in the court’s ruling in Rose v. Council for Better Education.

“Research has shown that private school voucher programs in other states have demonstrated no positive effect on students’ educational outcomes, and often negatively impact student achievement. In fact, some evidence illustrates they may exacerbate school segregation and fund discrimination and they are prone to waste, fraud, and abuse. We simply can’t afford to support two different education systems — one private and one public — on the taxpayers’ dime, and the judge’s ruling supports that concern. HB 563 would have hurt students here in Kentucky because it undermines the hard work that has been done since to improve public education in the commonwealth since Rose. KEA is thankful that HB 563 has been ruled unconstitutional and will not be allowed to stand,” Campbell concluded.

According to the Courier-Journal newspaper, Shepherd sided with the Council for Better Education, ruling the tax credit would have indirectly sent would-be state dollars to private schools — a violation of the state constitution.

Attorneys for the Institute for Justice, which won the Espinoza v. Montana Department of Revenue school choice case at the U.S. Supreme Court, argued the funds were merely private donations.

“The ‘donor’ taxpayers who take advantage of this tax credit are taxpayers who, by definition, are unwilling to make charitable donations to support the laudable goals of this legislation,” Shepherd wrote in his ruling, noting funds that go to non-public schools need to ratified by the voters, the newspaper reported.

Analysts have estimated the tax credits donors would receive for their contributions to the new special accounts could cost the state as much as $25 million annually in tax revenue.

Supporters said the tax credits were needed to draw donations. Opponents said the cost in revenue would suck money away from already-shortchanged public schools.

Shepherd also took issue with how the law allows for EOAs to be used to cover private school tuition in some, but not all, Kentucky counties.

“The singling out of a few counties with populations of over 90,000 for the lucrative benefit of tuition assistance for private schools, to the exclusion of all other counties (even those with robust private school options for students)” violates state law, Shepherd wrote, according to the newspaper.

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