The controversial school choice bill that would have given tax credits to those donating funds for private school tuition is unconstitutional, the Kentucky Supreme Court unanimously ruled Thursday.
The program, known as the Educational Opportunity Account (EOA) Act, has been blocked for more than a year since a lower court deemed the bill unconstitutional. Attorney General Daniel Cameron appealed that decision to the Kentucky Supreme Court.
The Supreme Court issued a 37-page ruling affirming the bill was unconstitutional. (Read the full ruling here.)
Deputy Chief Justice Lisabeth T. Hughes wrote that “We are compelled to agree that the EOA Act violates the plain language of Section 184” of the state constitution. “Simply stated, it puts the Commonwealth in the business of raising “sum(s) … for education other than in common schools.”
Another portion of the ruling reads: “We respectfully decline to construe the Constitution in a way that would avoid its plain meaning. Taxpayers who owe Kentucky income tax owe real dollars to the state and when they are not required to pay those real dollars in the first instance or have them refunded because an EOA tax credit reduces or eliminates their tax bill, the public treasury is diminished and the Commonwealth and other taxpayers must subsidize that taxpayer’s personal choice to send money to an AGO for use at nonpublic schools.”
The Court also rebuked the defendants’ precedent, writing: “Intervening Defendants rely on cases from other jurisdictions as support for their view that the EOA Act is constitutional. In fact, the programs in those states are substantially different from the EOA program. More to the point, those other jurisdictions do not have constitutional provisions regarding education that are comparable to Section 184 of the Kentucky Constitution and that alone renders their cited cases unpersuasive.”
The EOA Act, officially House Bill 563, narrowly passed in the 2021 General Assembly after the Republican-led legislature overrode Gov. Andy Beshear’s veto.
Beshear and opponents said the program could have cost the state up to $25 million in its first year of implementation.
The Kentucky Education Association praised the Court’s ruling.
“This is a victory for Kentucky’s public schools and public school students,” KEA President Eddie Campbell said in a release. “It’s always been clear to the plaintiffs and their supporters that the Kentucky Constitution prohibits any attempt to divert tax dollars from our public schools and students without putting the question to the voters. This decision protects the power of the people to decide important questions of public education policy and holds the legislature to account to uphold their oath to support and defend the Kentucky Constitution.”
The Kentucky Democratic Party similarly lauded the Court’s decision.
“The Supreme Court unanimously slapped down Daniel Cameron, the Kentucky GOP, their partisan power grab and their attack on our public schools,” said Kentucky Democratic Party Chair Colmon Elridge. “… If Republican legislators want to change how schools are funded in Kentucky, they should let the people decide.”
Cameron also released a statement following the decision.
“We’re saddened that parents across the Commonwealth won’t be able to use the needs-based funding provided by Kentucky’s Education Opportunity Account Program to expand learning opportunities for their children,” he said. “Our office is committed to helping ensure the best educational opportunity for every child.”
The Bluegrass Institute for Public Policy Solutions, self-described as a libertarian think tank based in Bowling Green, criticized the ruling, specifically arguing that low-income students are negatively impacted by the decision.
A release from the Institute reads, “Combining the fact that low-income minority students benefit greatly from educational options in other states and only 12% of Kentucky’s Black eighth-graders are reading well enough to set them up for academic success in high school and eventually colleges or career, it’s obvious this court’s ruling was all about protecting a failed, costly and inefficient system at the expense of Kentucky’s neediest children.”
