February 2023 Church & State Magazine - February 2023

Ky. Supreme Court Strikes Down School Voucher Scheme


A private school voucher plan styled as a “scholarship” program by its backers was invalidated by the Kentucky Supreme Court Dec. 15.

Kentucky’s Republican-dominated legislature passed the program over Democratic Gov. Andy Beshear’s veto in 2021. It was later struck down by a state court, which held that it violated the Kentucky Constitution. The ruling by the state’s high court affirms that decision.

“We simply can’t afford to support two different education systems — one private and one public — on the taxpayers’ dime, and this ruling supports that concern,” Eddie Campbell, president of the Kentucky Education Association, said in a statement. “This decision is proof that the courts continue to serve as an important check against legislative overreach.”

The voucher program relied on a scheme that has become popular in some states whereby private individuals who donate to a “scholarship fund” that pays for vouchers receive a hefty tax credit from the state. Under the plan, voucher recipients could have used the money to pay for private school tuition and other educational expenses.

It was estimated that the plan would have cost the state $25 million per year, reported the Associated Press.

Beshear hailed the ruling, stating, “We can’t send public dollars directly or indirectly to private or charter schools nor should anyone try. The answer is to work together to improve our public school system.” But Republican officials in the legislature vowed to try to find a way to resurrect the program.

Section 184 of the Kentucky Constitution establishes a “common schools fund” and states, “The interest and dividends of said fund, together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose.” (“Common schools” is an antiquated term for public schools.)

“We are compelled to agree that the EOA Act violates the plain language of Section 184” of the state constitution, Deputy Chief Justice Lisabeth T. Hughes wrote for the unanimous court. “Simply stated, it puts the Commonwealth in the business of raising sum(s) … for education other than in common schools.” (Council for Better Education v. Johnson)

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