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Rep. Calloway Oped: Overturning School Choice Puts Kentucky Outside Mainstream

December 26, 2022

Commentary: Overturning School Choice Puts Kentucky Outside Mainstream
December 26, 2022
By. Rep. Josh Calloway

This column appeared in Kentucky Today on December 26, 2022. To read online, click here.

In a sweeping decision, the Kentucky Supreme Court struck a huge blow to students who simply asked for the chance to learn. By ruling against Kentucky’s expansive Education Opportunity Account Act (EOA Act)—which would have given low- and middle-income students access to education dollars to further their learning in the right environment—the justices have set our Commonwealth’s students up to fail. This reality is even more devastating considering recent state testing data, where less than half of Kentucky’s elementary students were proficient in reading and only a third were proficient in math.

The ruling will come as a surprise to readers who may recall that the U.S. Supreme Court recently made huge strides for parents and students by upholding educational choice policies in Montana and Maine.

In an effort to avoid the case going before the U.S. Supreme Court, opponents of educational choice sued using Section 184 of the Kentucky Constitution. This provision states in part: “No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation…” (emphasis added).

The section harkens back to a time in the 1800’s when politicians had a bad habit of imposing taxes to raise funds for education, and then using the tax funds for other purposes. The plain language of the Constitution clearly wouldn’t ban a program like the EOA Act, which put more funding into education without taking one penny from the state education budget.

The EOA Act created a tax credit to incentivize $25 million in private giving that could cover a broad range of educational expenses, including tutoring services, therapies for students with special needs, career training and dual-credit college courses, and non-public school tuition. Both public and non-public school students could apply for assistance. 

Similar programs have been upheld time and again across the United States over the last three decades. All legal precedent, from state supreme court decisions to the U.S. Supreme Court rulings, had been in favor of upholding tax credit programs as constitutional.

Last week’s decision puts Kentucky far outside of the legal and policy mainstream. Over 30 states have educational choice laws, and Kentucky is now the only state in our region that will not give families a meaningful opportunity to choose the school that works best for their children.

The basis for the ruling left many legal experts scratching their heads. Section 184 by its own language only applies to public dollars raised from “taxation” and not private funds given to families. Nevertheless, the Kentucky Supreme Court found that the word “taxation” should not be used to limit the words “no sum shall be raised.” As a result, they found that Section 184 is a broad prohibition on raising any funds for education outside of traditional public schools.

Of course, if you take this literally, it would call into question the very existence of private schooling in Kentucky. Would tax deductible donations to private schools or other education related charities not be “sums” raised outside of the public schools? Further, if taken to its logical conclusion, the state would also have to discontinue taxpayer funded programs that pay for students with special needs to attend non-public schools. The Court airily dismissed these possibilities without providing a convincing legal rationale for making a distinction.

Questionable reasoning aside, this new burden will fall squarely on Kentucky families in need. The Court has told parents that they need to push for a statewide ballot initiative if they want to bring educational choice to Kentucky. This is little comfort to parents who need help now. Children do not stay young forever and each year that passes is a missed opportunity to help them reach their full potential.

During difficult times like these, the wealthy can put their kids in any school they want. On the other hand, thousands of low and middle-income families will continue to struggle daily as their children fall further behind. Who could honestly be pleased with this outcome?

This isn’t the end for school choice in Kentucky. Last November, Kentucky voters sent more student-first legislators to the General Assembly than ever before. While they cannot take away the harm this Court decision has caused in the short term, they can take action to ensure that Kentucky students have a brighter future ahead.

Josh Calloway, an Irvington Republican, is a Kentucky State Representative and sponsor of 2022 school choice legislation.