Deciding The Future of Kentucky Education: Amendment 2

by Christian Bugher, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

In November 2024, Kentucky voters will determine the future of Kentucky education by voting on Amendment 2 (“Amendment”). This proposed constitutional amendment asks voters whether taxpayer funds should be allocated to education outside of the common school system, the term used in the Kentucky Constitution to refer to the public school system.[1] The Framers of the Kentucky Constitution did not allow taxpayer funds to support education outside the common school system.[2] Judicial precedent has adhered to this limitation for over a century.[3] The Amendment, however, allows voters to add a new provision to the Kentucky Constitution that would give the Kentucky General Assembly the power to provide financial support to private education.

This article explores the Amendment’s proposals, advocates for reform to the Amendment to provide for a detailed plan for allocating taxpayer funds outside the common school system, and discusses how such reform will improve the common school system. Kentucky’s common school system needs improvement; however, the Amendment as currently written does not clearly illustrate how altering the constitution will achieve this necessary progress. Without these details, lawmakers retain too much discretion over implementing a program to allocate funding outside the common school system.

Part II of the article provides background on Kentucky’s approach to funding education under constitutional provisions and case law. It outlines how the Amendment made it on the ballot and states how the Amendment will read on the ballot. Part III discusses the potential benefits and drawbacks of passing the Amendment by evaluating how other states have approached funding education beyond their common schools. Finally, Part IV summarizes the Amendment’s proposal, the immediate impact if the Amendment passes, and how the legislators can improve the Amendment.

II. Background

            The Kentucky Constitution prohibits taxpayer funds from supporting education outside the common school system.[4] The Amendment allows Kentucky voters to allocate taxpayer funds to education outside the common school system.[5]

A. The Kentucky Constitution

Lawmakers in Kentucky have long prioritized maintaining a common school system across the state to allow all students access to education without concerns about meeting certain financial or admission requirements. For over one hundred years the State General Assembly has required an efficient schooling system to be accessible throughout the state.[6] Today, the Kentucky Constitution has an entire provision dedicated to public education.[7]

Sections 183 through 189 detail the requirements and limitations related to a common school system throughout the state.[8] Section 183 states that the General Assembly will provide for a common school system around the entire state.[9] Section 184 lays the foundation for how the common public school will be funded and how such funds can be allocated. Under Section 184, a bond issued in favor of the Board of Education, together with tax-generated revenues, provides funding for the common schools.[10] Section 184 specifies that funds shall not be used for any purpose beyond the common schools, nor can funds be raised or collected through taxation to support education outside the common school.[11] Significantly, Section 184 allows a majority of voters to implement a tax toward education outside the common school.[12]

Section 186 gives the General Assembly authority to determine the distribution of funds among the school districts and its use for common school purposes, so long as all funds allocated to the common school system are used for no purpose other than the maintenance of public schools.[13] Section 188 mandates that any funds received from the United States be used in conformity with the provisions of Section 184.[14] Finally, Section 189 blatantly states no part of any fund or tax for education can be appropriated to, used by, or in aid of, any denominational, sectarian, or church school.[15] As evidenced by the dedication of an entire provision to this issue, the Kentucky Constitution goes to great lengths to ensure a public school system is maintained across the state, while all funds and taxes allocated for education are used to further the goal of a common school system.

The education provisions in the Constitution are vital to maintaining the common school system. These sections allow schools to stay open, to remain funded, and to ensure that everyone can earn an education. Emphasizing the necessity of the common school system, the Kentucky Supreme Court held “we are ever mindful of the immeasurable worth of education to our state and its citizens.”[16]

Adhering to the text of the Kentucky Constitution, the Kentucky courts have set a precedent prohibiting the use of taxpayer funds for education beyond common schools. The Kentucky courts first interpreted Section 184 of the state constitution in 1895 when the Kentucky Court of Appeals held in Superintendent of Pub. Instruction v. Auditor of Pub. Accounts that funds from the common school fund could be used to pay teachers’ salaries.[17] The court again ruled on funding for educational programs outside the common school in Pollitt v. Lewis.[18] The issue in Pollitt was whether a local junior college could receive taxpayer funds for educational purposes without submitting the question of taxation to the voters.[19] The court, relying on Section 184 of the Kentucky Constitution, held that the term “common schools” has never included a college.[20] The court concluded that the Framers of the Kentucky Constitution intended to limit the legislative power to expand funds for education beyond common schools.[21]

B. A Push for Funding Private Education Led to Amendment 2

In 2017, then-Governor Matt Bevin enacted House Bill 520 (“H.B. 520”), approving public charter schools and adding new sections to the Kentucky Revised Statute to allow for such schools.[22] The goal of establishing public charter schools was to reduce achievement gaps in students’ education.[23] H.B. 520 advocates that adding public charter schools to the common education system would create strong educational alternatives and help reduce the socioeconomic, racial, and ethnic achievement gaps present in common schools.[24] Proponents of H.B. 520  argue past and current measures are insufficient in making progress toward closing the education gaps.

Following the enactment of H.B. 520, legislators passed House Bill 563 (“H.B. 563”) to provide funding opportunities for education beyond the common schools.[25] H.B. 563 established the Education Opportunity Account Program (“EOA”) to offer greater flexibility and choice in education to Kentucky residents while addressing disparities in educational opportunities.[26] The EOA Program, codified by KRS 141.522, promulgated a tax credit program for contributions made to account-granting organizations (“AGO”).[27] An AGO is a nonprofit organization that receives taxpayer contributions, allocates the funds received, and administers the EOA.[28] In short, taxpayers make financial contributions to an AGO, the AGO allocates funds to an EOA account and the parent of an EOA student can use the funds to pay for educational expenses outside the common school system. The taxpayers receive a credit from the EOA program against their annual income tax.[29] Thus, by contributing to the EOA program, taxpayers can claim a deduction toward their state income tax.

Building on the changes made by H.B. 563, legislators passed House Bill 9 (“H.B. 9”), which amended KRS 160.1596 to allow a public charter school contract to include the allocation of local, state, and federal funds.[30] KRS 160.1596 outlines the required elements of a charter school contract and the proportional transfer of funds a charter school can receive. Under H.B. 9, funding to public charter schools would be allocated proportionally based on enrollment, relative to the overall student attendance and enrollment figures for the entire district.[31] Kentucky lawmakers supporting the expansion of educational opportunities passed H.B. 9 to allocate funding for public charter schools and to establish a formula for determining the amount of funding.

C. Kentucky Courts Find Funding for Charter Schools Unconstitutional

Momentum for public charter schools and the push for additional educational opportunities outside the common school system came to a halt when the Kentucky Supreme Court held that the EOA and H.B. 563 violated the Kentucky Constitution in Commonwealth ex rel. v. Johnson.[32] The issue in Johnson was the constitutionality of the EOA. The Council for Better Education, Inc., a non-profit organization of school districts and school officials dedicated to ensuring implementation of Kentucky’s constitutional commitment to students and schools, and the Warren County and Frankfort Independent School Boards, as well as several parents of children (collectively “Plaintiffs”), challenged the constitutionality of the EOA, claiming that it impermissibly redirects state revenues to nonpublic schools.[33] Plaintiffs named the Secretary of the Kentucky Finance and Administration Cabinet, and the Commissioner of the Kentucky Department of Revenue as Defendants based on their statutorily prescribed roles in implementing the program. The Attorney General intervened in the action on behalf of the Commonwealth. Two parents who hoped to receive EOA benefits, Akia McNeary and Nancy Deaton, also intervened as defendants (referred to collectively with the Attorney General as “Intervening Defendants”).[34]

Proponents of H.B. 563 and the EOA advocated for the importance of parental choice and the individualized educational needs of students, while the opponents advocated for maintaining a well-funded common school system available to everyone regardless of their circumstances.[35] The Franklin Circuit Court reviewed the challenge to the EOA and held that the EOA violates Section 184 of the Kentucky Constitution. While acknowledging each party’s concerns, the court focused its analysis on whether the EOA Act was within the limitations of the state Constitution.[36]

The Supreme Court of Kentucky agreed with the trial court that the EOA violated the language of Section 184.[37] The court understood the structure of EOA tax credits to put the state in a position to raise funds for education beyond the common school, thus a violation of Section 184 of the Kentucky Constitution.[38] The EOA tax credit is essentially a dollar-for-dollar reduction in state income tax.[39] Despite a strong presumption of constitutionality from legislative acts, the court held that the EOA was unconstitutional.[40]

The text of the Kentucky Constitution, along with over a century of judicial precedent prohibits the use of taxpayer funds for education outside common schools. However, Section 184 of the Constitution allows a majority vote to approve a tax allowing funds to support education outside the common school system.[41] The Supreme Court of Kentucky’s ruling in Commonwealth ex rel. v. Johnson therefore prompted the enactment of H.B. 2, which prompted the constitutional amendment that will be voted on in November.

D. How Amendment 2 Will Read on the Ballot

When Kentucky voters cast their ballot in November, they will be tasked with voting “Yes” or “No” to the Amendment. The proposed amendment will be phrased as follows:

To give parents choices in educational opportunities for their children, are you in favor of enabling the General Assembly to provide financial support for the education costs of students in kindergarten through 12th grade who are outside the system of common (public) schools by amending the Constitution of Kentucky as stated below?

IT IS PROPOSED THAT A NEW SECTION BE ADDED TO THE CONSTITUTION OF KENTUCKY TO READ AS FOLLOWS:

The General Assembly may provide financial support for the education of students outside the system of common schools. The General Assembly may exercise this authority by law, Sections 59, 60, 171, 183, 184, 186, and 189​ of this Constitution notwithstanding.[42]

III. Discussion

The Amendment proposes no specific plan to improve state education, no detailed process for student enrollment, no requirements for who may qualify for a program, and does not limit the number of students who may participate. Without these details, the Amendment gives too much discretion to lawmakers on how to implement a private education program. The Amendment would allow for unprecedented reform to education in Kentucky.

 Much debate continues over whether allowing taxpayer funding would be better for the common school system. Advocates on both sides have strong arguments for why taxpayer funding should or should not be used for education outside the common school system. Numerous other states have implemented programs allowing taxpayer funds to support education outside the common school system, and through these various programs, voters can make an educated decision when voting on the Amendment in November.

A. Potential Benefits of Funding Private Education

Supporters of the Amendment advocate that funding education outside the common school system will foster more opportunities and better outcomes for all students, help close achievement gaps, and improve the common school system by creating competition for student enrollment.[43] Advocates of funding education outside the common school system have had success in other states. Wisconsin’s common school system has funded a successful private education program for over a decade.

In 2013, Wisconsin implemented the Wisconsin Parental Choice Program (“WPCP”).[44] The WPCP is a statewide private school voucher program that allows qualifying families to attend participating private or religious schools of their choice, tuition-free.[45] To qualify, participating families must reside in Wisconsin, but outside the city of Milwaukee and Racine School District.[46] Additionally, the student’s family income must be at or below 220% of the federal poverty level and meet one of the following attendance requirements from the prior year: enrolled in public school grades K-12, not enrolled in school, or enrolled in private school.[47] Significantly, WPCP is limited to 7% of the local school district’s enrollment and the program has a specified amount the voucher is worth for each grade.[48] The WPCP has steadily increased in popularity, reaching its highest enrollment in 2022 with 52,189 students.[49]

Wisconsin demonstrates that taxpayer funds spent on education outside the common school system can result in positive reform. However, Wisconsin has a specific and detailed process for how parents can apply and which students qualify. Most significantly, the WPCP includes a limitation on the number of students that can participate. Kentucky’s Amendment includes none of these details. The Amendment proposes no specific plan to improve state education, no detailed process for student enrollment, no requirements for who may qualify for a program, and does not place a limit on the number of students who may participate. Without these details, the Amendment gives too much discretion to lawmakers on how to implement a private education program.

B. Potential Drawbacks of Funding Private Education

Critics of the Amendment advocate that funds spent on education outside the common school system will leave low-economic students behind with less funding to serve their needs in an over-burdened public school system.[50] Other states that have permitted funding outside of public schools have faced these issues.

In 2022, Arizona implemented a universal category for the Empowerment Scholarship Accounts Program (“ESA”).[51] The ESA allows taxpayer funds to support education outside the state common school system.[52] The addition of the universal category opened the program to all students who reside in Arizona. Each student enrolled in the program has their own ESA, in which, 90% of the state funding that would have been allocated to the common school system of the student will be available for education of the parent’s choice.[53] By accepting an ESA, parents contractually agree to ensure students receive education in a common core of classes.[54] Still, parents retain discretion on where they want their children to attend school.

The addition of the universal category has created significant concerns over how funds are being spent and which students are taking advantage of the program. One of the goals of any private school funding program is to enhance the education choices for low-income students and allow all students the same opportunities to attend private schools. However, research on the universal ESA program has shown that while a significant percentage of vouchers are used by students in the state’s wealthiest zip code, less than half of the vouchers are used by students whose families make less than $60,000, and less than 5% of the vouchers are used by students coming from zip codes with failing common schools.[55] Similar to the Kentucky Amendment, the Arizona education program lacks a detailed process for student enrollment to ensure funds are allocated to students most in need and does not include a limit on the number of students who may enroll.

IV. Conclusion

Since the inception of the Kentucky Constitution, taxpayer funds have been prohibited from supporting education outside the common school system. If the Amendment fails to get a majority vote in November, the prohibition of funds allocated to education outside the common school system will stay as it is today. If the Amendment passes in November, funds can be allocated to education beyond common schools. However, even if the Amendment passes nothing would happen immediately, the Kentucky General Assembly will still need to pass legislation allocating funds and establishing a program to do so. This November Kentucky voters will ultimately decide the future of Kentucky education.

---

[1] H.B. 2, 2024 Leg. (Ky. 2024) (This bill puts a Constitutional Amendment on the 2024 Kentucky ballot).

[2] Ky. Const. § 184.  

[3] Superintendent of Pub. Instruction v. Auditor of Pub. Acct., 30 S.W. 404, 404 (Ky. 1895).  

[4] Ky. Const. § 184.

[5] H.B. 2, 2024 Leg. (Ky. 2024) (This bill puts a Constitutional Amendment on the 2024 Kentucky ballot).

[6] Ky. Const. § 184.  

[7] Ky. Const. § 183.

[8] Id.

[9] Id.

[10] Ky. Const. § 184.

[11] Id.

[12] Id.  

[13] Ky. Const. § 186.

[14] Ky. Const. § 188.

[15] Ky. Const. § 189.

[16] Rose v. Council for Better Educ., 790 S.W.2d 186, 189 (Ky. 1989).  

[17] Superintendent of Pub. Instruction v. Auditor of Pub. Acct., 30 S.W. 404, 404 (Ky. 1895).

[18] Pollitt v. Lewis, 108 S.W.2d 671 (Ky. 1937).

[19] Id. at 672.

[20] Id. at 674.

[21] Id. at 672.

[22] H.B. 520, 2017 Leg. (Ky. 2017).

[23] Id.

[24] Id.

[25] H.B. 563, 2021 Leg. (Ky. 2021).

[26] Id.

[27] KRS § 141.522.

[28] Ky. H.B. 563.

[29] KRS § 141.522.  

[30] H.B. 9, 2022 Leg. (Ky. 2022).

[31] Id.

[32] Commonwealth ex rel. Cameron v. Johnson, 658 S.W.3d 25, 29 (Ky. 2022).

[33] Id. at 30.

[34] Id.

[35] Id.

[36] Id. at 29.

[37] Id. at 36.  

[38] Id.

[39] Id. at 40.  

[40] Id.

[41] Ky. Const. § 184.

[42] H.B. 2, 2024 Leg. (Ky. 2024) (This bill puts a Constitutional Amendment on the 2024 Kentucky ballot).

[43] Rachel Smith & Hannah Pinski, School choice amendment on Kentucky ballot. What does it mean to vote ‘yes’ or ‘no’?, Courier Journal, (Oct. 1, 2024, 10:58 AM), https://www.courier-journal.com/story/news/education/2024/10/01/kentucky-school-choice-constitutional-amendment-2-language-simplified-on-ballot-for-2024-polls/75464155007/.

[44] Private School Choice Programs: Student Applications (Information for Parents & Schools), Parental Education Options, https://dpi.wi.gov/parental-education-options/choice-programs/student-applications (last visited Oct. 21, 2024).

[45] Id.

[46] Id.

[47] Id.

[48] Wisconsin Parental Choice, School Choice Wisconsin, https://schoolchoicewi.org/programs/wisconsin-parental-choice-program/ (last visited Oct. 21, 2024).

[49] The numbers are in: Choice is growing in Wisconsin, School Choice Wisconsin, https://schoolchoicewi.org/the-numbers-are-in-choice-is-growing-in-wisconsin/ (last visited Oct. 21, 2024).

[50] Smith, supra note 43.

[51] Arizona Empowerment Scholarship Accounts, Ariz. State Legislature, https://www.azoca.gov/empowerment-scholarship-accounts/#:~:text=In%20late%202022%2C%20Arizona%20added,preschool%20student%20with%20a%20disability (last visited Oct. 21, 2024).

[52] Id.  

[53]ESA Guidance, Ariz. Dep’t. of Educ., https://www.azed.gov/esa/esa-guidance#:~:text=By%20accepting%20an%20ESA%2C%20the,home%20education%2C%20tutoring%20and%20more (last visited Oct. 21, 2024).

[54]Id.

[55] Peter Greene, Report: Arizona’s Voucher Report Card Shows Much Room For Improvement, Forbes, (Jan, 12, 2024, 10:12am), https://www.forbes.com/sites/petergreene/2024/01/12/report-arizonas-voucher-report-card-shows-much-room-for-improvement/

---

Cover Photo by Ivan Aleksic on Unsplash.