Kentucky Judge Finds New School Voucher Program Unconstitutional

Here is some encouraging news at a time when legislators have been actively introducing a wave of legislation across the states to launch or expand all kinds of publicly funded private school tuition vouchers—regular old vouchers, tuition tax credit vouchers, and education savings account vouchers.

A judge in Kentucky just found a new tuition tax credit program unconstitutional.

In a book he published in 2020,  Schoolhouse Burning, constitutional law professor Derek Black explores our society’s history of public education as it is reflected in our nation’s founding documents and in the fifty state constitutions. Today state legislatures are pushing the limits of the state constitutions, and ideologically driven law firms representing voucher advocates are testing whether the courts can protect public schooling and students’ rights. Black worries that today’s threats seriously threaten our society’s foundational institution of public schooling:

“State constitutions long ago included any number of safeguards—from dedicated funding sources and uniform systems to statewide officials who aren’t under the thumb of politicians—to isolate education from… political manipulations and ensure education decisions are made in service of the common good. The larger point was to ensure that democracy’s foundation was not compromised.  But the fact that politicians keep trying and sometimes succeed in their manipulations suggests these constitutional guardrails are not always enough to discourage or stop powerful leaders. This also reveals something deeper: modern-day incursions into public education are so unusual that our framers did not imagine them. They anticipated that legislatures might favor schools in their home communities at the expense of a statewide system of public education. They anticipated that public education might suffer from benign neglect when legislatures, from time to time, became preoccupied with other issues. But they did not anticipate that legislatures would go after public education itself, treating it as a bad idea.”  (Schoolhouse Burning, pp. 232-233)

In another important book published last year, A Wolf at the Schoolhouse Door, Jack Schneider and Jennifer Berkshire conclude: “(T)he present assault on public education represents a fundamentally new threat….  Put simply, the overarching vision entails unmaking public education as an institution. An increasingly potent network of conservative state and federal elected officials, advocacy groups, and think tanks, all backed by deep-pocketed funders, has aligned behind a vision of a radical reinvention.” (A Wolf at the Schoolhouse Door, p. xix)

In this context, we must welcome last week’s news from Public Funds Public Schools:  “A Kentucky trial court has ruled in Council for Better Education v. Johnson that a 2021 law establishing the state’s first private school voucher program violates the Kentucky Constitution and cannot be implemented.” Governor Andy Beshear had vetoed Kentucky House Bill 563 establishing the tuition tax credit voucher program when it came across his desk, but the state’s legislature had overridden his veto. The case will likely be appealed.

On Friday, October 8, the Louisville Courier Journal reported: “Franklin Circuit Court Judge Philip Shepherd’s decision delivers a crippling blow to the fledgling education opportunity account program, which narrowly became law earlier this year. In his decision, Shepherd enjoined state officials from enforcing the parts of House Bill 563 that deal with the school choice program. They will not be allowed to approve the creation of any account granting organizations or education opportunity accounts, nor can they grant any tax credits to fund either.”

Public Funds Public Schools summarizes the decision: Judge Shepherd held that Kentucky’s new voucher law “violates two separate sections of the Kentucky Constitution.  First… the voucher law violates Section 59, which prohibits laws that discriminate by singling out particular individuals or geographic locations, because it arbitrarily establishes private school tuition vouchers in only nine Kentucky counties. Second, the court agreed with the plaintiffs that the law violates Section 184 of the state constitution, which provides that funds raised or collected for education may be spent only in the public schools, unless otherwise approved by the voters. Judge Shepherd rejected the defendants’ claim that the funds raised for the voucher program ‘are ‘a donation’ in any meaningful sense of that word,’ noting that the legislation permits a ‘favored’ group of taxpayers to redirect money they owe to the state and send it to voucher-granting organizations instead.” The Louisville Courier Journal adds: “The Institute for Justice… (had) argued that the funds were merely private donations.”

The fact that the Institute for Justice litigated this case on behalf of voucher advocates demonstrates that this was not merely a spontaneous local effort by parents seeking help with their private school tuition. For decades the Institute for Justice has been a leader representing advocates for publicly funded tuition vouchers for private schools. On its website the Institute for Justice identifies itself as “The National Law Firm for Liberty, (which) litigates to limit the size and scope of government power and to ensure that all Americans have the right to control their own destinies as free and responsible members of society.”

SourceWatch reports: “According to a statement on the Institute for Justice’s  website, ‘Charles Koch provided the initial seed funding that made it possible to launch the Institute in 1991.’ … Since its founding, the Institute for Justice has received donations from a number of groups with links to the Koch brothers, including a donation of $15,000 from the Charles G. Koch Foundation in 2001 and two donations of $250,000 each from the David H. Koch Foundation in 1999 and 2001. The Institute for Justice also received $716,800 from DonorsTrust and the Donors Capital Fund between 2010 and 2012. Other organizations with links to the Kochs have worked on cases with the Institute for Justice, including the Cato Institute and the Goldwater Institute.”

The law firm successfully represented Ohio voucher advocates in Zelman v. Simmons-Harris, the 2002 case in which the U.S. Supreme Court permitted tax dollars to fund tuition vouchers for education at religious schools as long as the vouchers were awarded to the parents and not directly to the schools. In 2011, the Institute for Justice also represented voucher advocates  in Arizona pushing an education savings account program—the Arizona Empowerment Scholarship Accounts—whose expansion was at least prevented in 2018 when public school advocates passed a referendum to limit the size of the program. And in 2020, the Institute for Justice successfully represented voucher advocates in Espinoza v. Montana Department of Revenue, seeking to protect voucher schools under the U.S. Constitution’s Free Exercise Clause by arguing that if the state awards vouchers to private schools, it may not discriminate against religious private schools.

Today’s attacks on public schools are strategically planned and well funded.  It is worth considering the consumerist and anti-democratic ideology that underpins the idea of marketplace school choice. For this, we must turn to the late political philosopher, Benjamin Barber:

“It is the peculiar toxicity of privatization ideology that it rationalizes corrosive private choosing as a surrogate for the public good. It enthuses about consumers as the new citizens who can do more with their dollars and euros and yen than they ever did with their votes. It associates the privileged market sector with liberty as private choice while it condemns democratic government as coercive… Privatization ideology today encourages us to believe that the market is not only efficient and flexible but can somehow turn its regressive impulses into the service of what is left of the idea of the public good.” (Consumed, p. 143)

Barber continues: “Privatization is a kind of reverse social contract: it dissolves the bonds that tie us together into free communities and democratic republics. It puts us back in the state of nature where we possess a natural right to get whatever we can on our own, but at the same time lose any real ability to secure that to which we have a right. Private choices rest on individual power… personal skills… and personal luck.  Public choices rest on civic rights and common responsibilities, and presume equal rights for all. Public liberty is what the power of common endeavor establishes, and hence presupposes that we have constituted ourselves as public citizens by opting into the social contract. With privatization, we are seduced back into the state of nature by the lure of private liberty and particular interest; but what we experience in the end is an environment in which the strong dominate the weak… the very dilemma which the original social contract was intended to address.” (Consumed, pp. 143-144)

This post has been updated.  The Arizona Empowerment Scholarship Accounts program was not eliminated.  Instead, by referendum in 2018, voters prohibited the vast expansion of this education savings account voucher program.

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