School Choice needed in Kentucky more than ever

October 21, 2022

By: Gary W. Houchens

This column appeared in Kentucky Today on October 18, 2022. To read online, click here.

Two major educational events took place over the past week. First, last week the Kentucky Supreme Court heard oral arguments in the lawsuit seeking to block educational choice in Kentucky. And this week the Kentucky Department of Education released standardized test scores for Kentucky public schools from spring 2022. As expected, they reflect a staggering decline in core subjects like reading and math.

Both news events illustrate the urgency for expanding education options in Kentucky.

The issue before the Kentucky Supreme Court is whether the Education Opportunity Account Act (“EOA Act”) is permissible under the state constitution. The EOA Act encourages private donations to nonprofit scholarship programs to help families with educational expenses, ranging from textbooks, technology, and tutoring to private school tuition. Donors who give to the program receive a state tax credit in return for their contribution.

Opponents claim this is the same as spending public dollars on nonpublic schools. But tax credit funded educational choice programs have been on the books for decades in other states. From the U.S. Supreme Court down to every state supreme court that has heard a similar challenge, no lawsuit seeking to strike down a tax credit funded educational choice program has ever succeeded.

As Justice Anthony Kennedy put it in ACSTO v. Winn, “[p]rivate bank accounts cannot be equated with the … state treasury.” The reason is obvious. Such a position would turn modern tax law on its head.

A decision blocking educational choice would not hold long term. The vast majority of parents want more options and most states have listened. Over 30 states have educational choice programs, including every state bordering Kentucky. But the delay caused by a negative decision would be costly.

Parents wanting to use the EOA Act have already lost two academic years to this litigation and the needs of children cannot be put on hold. Every year delayed will mean thousands of students lose the opportunity to reach their full potential.  

Which brings us back to the test scores released this week.

Kentucky has faced an education opportunity gap for years. Wealthy parents can choose the school, public or private, that works best for their students. They can also afford supplemental services when their children struggle. Average families often have to take whatever their assigned public schools provide.

This gap in resources was ever more apparent during the COVID-19 pandemic. When many public schools closed for in-person learning, thousands of parents who could afford tuition or the cost of homeschooling made the switch. Over the past two years, over 20,000 additional students used a private option, which were far more likely to stay open or reopen more quickly during the pandemic. The state’s public schools have lost more than 16,000 students during the same two-year period.

Recently released data from the National Assessment of Educational Progress (NAEP) show that nearly two decades of academic growth were wiped out by the pandemic. Nationwide, this year’s ACT scores dropped to the lowest point in 30 years, and Kentucky’s students lost more ground than the national average. State-level testing data released this week shows a similar decline. Less than half of Kentucky’s elementary students were proficient in reading and barely a third were proficient in math.

Opponents often callously remark that parents can have a choice now by paying out of pocket. Of course, that ignores the reality that the financial challenges faced by lower and middle income families are getting greater by the day. While Kentucky’s nonpublic schools provide millions of dollars in aid to help families with costs, the amount of need far outstrips what can be raised in charitable donations under the current system.

The stated goal of the 2021 EOA Act was to “give more flexibility and choices in education to Kentucky residents and to address disparities in educational options available to students.” The latest test results demonstrate that this type of program is needed now more than ever before.

Let’s be clear; the challenges faced by Kentucky students are enormous and we will need an “all of the above” approach. Parents need innovative public school solutions as well as the flexibility created by educational choice programs.

One size fits all education solutions have never worked for families, and a novel reading of the Kentucky Constitution that effectively bars educational choice programs will have a devastating real-world impact on families in the near term. Let’s hope for the sake of students, the Kentucky Supreme Court adopts a ruling that allows more investment in students and gives parents the tools that they need to move past the educational disruptions of the past two years.

Gary W. Houchens, PhD, is professor of education administration at Western Kentucky University. He served on the Kentucky Board of Education from 2016-2019.