Entered 23-CI-00020 12/11/2023 Kathryn Marshall, Franklin Circuit Clerk

COMMONWEALTH OF KENTUCKY

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FRANKLIN CIRCUIT COURT
DIVISION I
CIVIL ACTION NO. 23-CI-00020

COUNCIL FOR BETTER EDUCATION, INC., et al. PLAINTIFFS

v. OPINION and ORDER

JASON GLASS in his official capacity as

COMMISSIONER OF THE KENTUCKY
DEPARTMENT OF EDUCATION, et al. DEFENDANTS

This action is before the Court on Cross-Motions for Summary Judgment under CR 56.

The Plaintiffs seek a declaration of rights under KRS 418.040 that House Bill 9 (HB 9) enacted by

the 2022 General Assembly (2022 Ky. Acts, ch. 213) is unconstitutional. HB 9, for the first time

in Kentucky history, provides for public funding and allocation of tax dollars to private entities

known as charter schools. The legislation exempts charter schools “from all statutes and

administrative regulations applicable to the state board, a local school district, or a school”1

notwithstanding the appropriation of tax dollars to such schools.

The Plaintiffs, led by the Council for Better Education (CBE)2, argue that this funding of

private educational entities with tax dollars violates Sections 183, 184 and 186 of the Kentucky

Constitution. The Defendants are the Commissioner of Education, the Kentucky Board of

Education and its chair, in their official capacities. Attorney General Cameron, on behalf of the

Commonwealth, has intervened to defend the constitutionality of the statute, as has Gus

LaFontaine, an applicant for approval of a Charter School in Madison County who is seeking
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1
2022 Ky. Acts, ch. 213, Section 3(1). This section does provide that the exemption for charter schools from state
regulation does not extend to health, safety and civil rights requirements applicable to public schools.
2
CBE is a coalition of public school districts. Other named plaintiffs include the Jefferson County Board of
Education and the Dayton Independent Board of Education.

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authorization from the Madison County Board of Education for operation of his school, and tax

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dollars to fund it under the provisions of H.B. 9.

The Kentucky Constitution requires the legislature to establish “an efficient system of

common schools” (Section 183), and further provides that “any sum which may be produced by

taxation or otherwise for purposes of common school education, shall be appropriated to the

common schools.” (Section 184). Likewise, Plaintiffs argue that H.B. 9 violates Section 186,

which provides that:

All funds accruing to the school fund shall be used for the
maintenance of the public schools of the Commonwealth, and for no
other purpose, and the General Assembly shall by general law
prescribe the manner of the distribution of the public school fund
among the school districts and its use for public school purposes.

Ky. Const., Section 186

For reasons more fully stated below, the Court GRANTS the Plaintiffs’ motion for

summary judgment, and DENIES the cross-motions of the Intervening Defendants. The Court

finds that the challenged legislation is not consistent with the constitutional requirement for “an

efficient system of common schools” under Section 183 of the Constitution, as interpreted by Rose

v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989), and that the use of tax dollars to

support charter schools violates Sections 184 and 186 of the Kentucky Constitution.

Introduction

The charter school legislation at issue in this case sets forth a comprehensive plan to
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establish taxpayer funded private schools that are exempted from traditional public oversight and

regulation. The legislation seeks to give parents and students an alternative to the public education

offered in the common schools, and to fund these private alternative schools with tax dollars.

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While there is vigorous debate as to whether the policy goals of the legislature are positive or

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negative, the policy goals of the legislation are not at issue in this case. Here, the only issue is

whether the legislation runs afoul of the very specific mandates of the Kentucky Constitution

governing public education and the expenditure of tax dollars.

The central question in this constitutional analysis is whether the privately owned and

operated “charter schools”, which are established by this legislation, should be considered

“common schools” or “public schools” within the meaning of Sections 183, 184 and 186 of the

Kentucky Constitution? A review of the case law, and the plain language of the Kentucky

Constitution itself, yields the inescapable conclusion that “charter schools” are not “public

schools” or “common schools” within the meaning of our state’s 1891 Constitution.

ANALYSIS

At the most basic level, the analysis of whether “charter schools” can be considered within

the meaning of “common schools” as required by the Section 183 of the Ky. Constitution, must

begin with a simple question: is the term “common schools” malleable enough to include two

separate and unequal systems of education? One, the common schools that are governed by the

state board of education and elected local school boards in which all schools are subject to the laws

and regulations duly enacted by law; and another, charter schools, that are governed by private

entities that are exempt from those laws and regulations even though funded with tax dollars. The

obvious distinction between these two forms of schools is totally inconsistent with the use of the

term “common” as a modifier of “schools.” The whole purpose of “charter schools” is to establish

an alternative system of education that is exempt from the requirements of “common schools.”
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The Intervening Defendants attempt argue that the term “common schools” essentially

means whatever the legislature says it does. (Attorney General’s reply brief, 5/19/23 at pp. 2-3).

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Turning Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989) on its head, the

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Intervenors essentially argue that the legislature has unlimited power to define an efficient system

of common schools in any way it chooses3. The core ruling of Rose, striking down the entire

system of education laws governing the common schools enacted by the General Assembly for

over 100 years, powerfully refutes the proposition that the discretion of the General Assembly in

this area is unlimited. The Intervenors’ argument on this point mirrors the argument of the

legislature that the Supreme Court rejected in Rose, that the General Assembly “has sole and

exclusive authority to determine whether the system of common schools is constitutionally

‘efficient’ and that a Court may not substitute its judgment for that of the General Assembly.” Id.

at 208-09. The Supreme Court emphatically rejected this argument, holding: “To allow the

General Assembly (or, in point of fact, the Executive) to decide whether its actions are

constitutional is literally unthinkable.” Id. at 209.

Accordingly, any analysis of the constitutionality of HB 9 must begin with the question of

whether “charter schools”, as defined in the legislation, can be considered “common schools.” The

statutes define “common school” as follows:

“Common school” means an elementary or secondary school

of the state supported in whole or in part by public taxation. No
school shall be deemed a “common school” or receive support from
public taxation unless the school is taught by a certified teacher for
a minimum school term as defined by KRS 158.070 and every child
residing in the district who satisfies the age requirements of this
section has had the privilege of attending it.

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3
The Attorney General argues that the General Assembly “[i]n its wisdom … could also, if it so chose, abolish
every local school district, every local school board, and the Kentucky Department of Education, and instead
contract with private persons to operate and manage the common school system on its behalf. So long as the
common school system remains constitutionally efficient under Section 183, the General Assembly may, consistent
with Rose, structure that system in anyway it sees fit …” Commonwealth’s Reply, filed 5/19/23, pp. 2-3).

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This definition has essentially remained substantively unchanged since before the adoption

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of the present constitution, and has been codified since prior to its inclusion in the Kentucky

Revised Statutes (1942 Ky. Acts ch. 208, sec. 1), going back to the original codification in Ky.

Stat. 4363-2. It is the definition that appears to have been substantially in effect at the time of the

adoption of the 1891 Kentucky Constitution. Its primary elements are 1) support from public

taxation; 2) employment of state certified teachers; 3) state prescribed minimum school terms; and

4) eligibility of “every child residing in the district” to attend.

While there may be debate about whether charter schools under HB 9 meet the other

requirements, HB 9 is explicit that charter schools are not required to meet the last requirement of

this definition. Under HB 9, charter schools--unlike common schools--are specifically permitted

to impose enrollment caps limiting their enrollment to a number of children who will ensure ease

of instruction through small class sizes. Charter schools may turn away qualified children residing

in the district. As set forth in the legislation, taxpayer supported charter schools are authorized to

limit their enrollment, and to “conduct an admissions lottery if capacity is insufficient to enroll all

students who wish to attend the school”. 2022 Ky. Acts, ch. 213, Section 3(3)(q). In contrast,

public schools in the common school system are required to enroll all children. While the lottery

system established in the statute is supposed to be “randomized, transparent and impartial,” it still

allows charter schools to turn away children who the common schools are obligated to educate.

It also appears to allow charter schools to adopt admissions policies that--explicitly or implicitly-

-favor families that are affluent, well educated, well connected, and academically (or athletically)

gifted and talented, since admissions policy--other than basic civil rights requirement--are beyond
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the scope of regulation. See KRS 160.1594(1)(i)(2). The statute allows the charter school to define

for itself “the targeted student population and community it hopes to serve.” KRS 160.1593(3)(a).

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In contrast, public schools in the Commonwealth are not allowed to reject eligible students

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to limit enrollment. A primary characteristic of the common schools is that they must “take all

comers”, and educate each child regardless of poverty, language barriers, disability, health or

addiction problems at home, or any other obstacle to learning. Yet charter schools in Kentucky

would be allowed to limit enrollment, resulting in rejection of children who through no fault of

their own lack the resources, parental involvement, language skills, or other means to succeed in

school or the charter school admissions process. While theoretically, the “admissions lottery”

could ameliorate this disparity, the “admissions lottery” is not triggered unless “capacity is

insufficient to enroll all students who wish to attend.” KRS 160.1592(3)(q).

Charter schools are allowed to limit their enrollment, even though the funding mechanism

for charter schools requires the public funding to be re-allocated from the public schools to the

charter school for every child that attends the charter school “proportional to the public charter

school’s enrollment or average daily attendance …” KRS 160.1596(6). Likewise, “a public charter

school shall receive a proportionate per pupil share of any state moneys not otherwise identified

in this section that is received by the local district of location.” KRS 160.1596(7). Still, charter

schools are allowed to maintain selective admissions, and to conduct a lottery for admissions if

they have more applicants than spaces, thus ensuring small class size for the limited number of

students admitted. If the “money follows the child”, as this legislation requires, then what is the

rationale for allowing charter schools to limit their enrollment or to design selective admissions

criteria?

The public has no ability to regulate such policies because “authorizing” public entities
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(primarily school boards, or mayors) are prohibited from imposing any “undue constraint”, or

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“unilaterally imposed condition” that would infringe on the autonomy of the charter school. See

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KRS 160.1595(2)(b), 160.1596)(1)(c)(11), KRS 160.1592(1).

While the allocation of state and local tax dollars to charter schools is mandatory, there

appear to be no guardrails that ensure these tax dollars are used for a public purpose. For example,

these tax funds can be re-allocated to an “education service provider”4 which can be a private for-

profit company. While charter school purchases in excess of $10,000 are subject to the Model

Procurement Code (KRS Chapter 45A)5, there appear to be no restrictions as to the ultimate

ownership or control of assets purchased with tax dollars. The Attorney General argues that

charter schools are subject to the Open Records Act, but it is far from clear that this requirement

would apply to private “education service providers” who are under contract to provide

management and operation of these taxpayer funded schools.6 Thus, a charter school building,

real estate, furniture, fixtures and equipment, could be pledged as collateral or sold for profit, with

no deed restriction, trust clause or statutory requirement that would ensure that the tax dollars

expended for the purchase would be recouped by the public, or used for an educational purpose in

the event of sale or default. See KRS 160.1592(3)(p). There is no restriction that would prohibit

the takeover of charter schools by private equity investors who could increase their profits by

draining the charter school of tax-dollar-funded resources needed to educate children.

A review of the case law interpreting Sections 183, 184 and 186 of the Kentucky

Constitution strongly reinforces the conclusion that “charter schools” as defined by HB 9 are

outside the scope of the system of common schools required by the Kentucky Constitution. In the

long history of cases decided under the education provisions of the 1891 Ky. Constitution, there
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4
KRS 160.590(7).
5
KRS 160.1592(3)(l).
6
See Utility Management Group v. Pike County Fiscal Court, 531 S.W.3d 3 (Ky. 2017).

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are simply no cases that can reasonably be interpreted to support the taxpayer funded alternative

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system of education to supplement the long established system of “common schools” ordained by

the Constitution. Moreover, the Kentucky Supreme Court has jealously guarded against the use

of public funds to promote private education, as mandated by these constitutional provisions.

The definition of “common schools” adopted by Kentucky’s highest court is based on the

statute and the long tradition followed since the adoption of the 1850 Constitution: “there is no

long any room for controversy or dispute as to the meaning of [common schools}, … ‘a common

school was a school taught in a district laid out by authority of the school laws, under the control

of trustees elected under those laws, by a teacher qualified according to law to teach.” Sherrard

v. Jefferson County Board of Education, 171 S.W.2d 963, 966 (Ky. 1942) (invalidating law

providing for use of public funds to provide transportation costs to private schools). The

companion idea that common schools must be free and open to all children, and serve all children,

has been part of the law for over a hundred years, as discussed above. See Agricultural and

Mechanical College v. Hager, 87 S.W. 1126, 1127 (Ky. 1905).

Similarly, Pollitt v. Lewis, 108 S.W.2d 671, 673 (Ky. 1937) invalidated the attempt by

the Boyd County Board of Education to fund a junior college with tax dollars. The Pollitt court

extensively reviewed the debates of the 1891 Constitutional Convention, and came to the

conclusion that the definition of “common schools” incorporated into the 1891 Ky. Constitution

dated back to the decision in Bush v. Henderson, 11 Bush 74 (Ky. 1874), which was still

controlling at the time of the adoption of the 1891 Ky. Constitution. That original definition

required common schools to be part of “a district laid out by authority of the school laws, under
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the control of trustees elected under those laws, by a teacher qualified according to law to teach.”

11 Bush at 82-83. In contrast, charter schools under HB 9 are exempt from the authority of school

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laws, and exempt from the control of the elected school district board. Under this legislation,

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charter schools are governed by an autonomous board and are exempt from all state or school

district regulation related to “finance, personnel, scheduling, curriculum and instruction.” KRS

160.1590(14)(b).

Indeed, Kentucky’s highest court, at the time of the adoption of the present Constitution,

struck down a statute that provided for appropriation from the state school fund for “payment of

tuition” for students in a private academy that was exempt from control of the trustees of the

common school. There, the Court noted that the local school district trustees “have no voice in

the selection of the teachers.” Underwood v. Wood, 93 Ky. 177, 19 S.W. 405, 406 (Ky. 1892).

Indeed, the Taylor Academy discussed in Underwood has a very striking resemblance to the

charter schools contemplated by HB 9.

By vesting power over “finance, personnel, scheduling, curriculum and instruction” with

the private operators of charter schools, the legislature has drawn a sharp distinction with the

established system of common schools. Ironically, the original Kentucky Educational Reform Act

(KERA)7, adopted broad autonomy for each local school in the common school system under

Section 183 of the Ky. Constitution: it vested the power over “personnel, scheduling curriculum

and instruction” in site-based decision making councils elected from parents, teachers and

administrators for each school. It effectively used the philosophy of charter schools to empower

each public school to adopt its own policies: “decentralization of authority and the development

of school-based decision making are two primary objectives of KERA.” Board of Education of

Boone County v. Bushee, 889 S.W.2d 809, 814 (Ky. 1994). When local school districts attempted
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to assert approval power over the school councils, the Kentucky Supreme Court in Bushee upheld

7
The school reform legislation adopted by the General Assembly in response to the Rose decision.

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the autonomy of school councils under KERA. The legislature, however, later restricted the powers

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of school councils and gave local school districts greater power over personnel, instruction and

curriculum at the school level. This charter school legislation is effectively an attempt to bypass

the system of common schools, and establish a separate class of publicly funded but privately

controlled schools that have unique autonomy in management and operation of schools, an

autonomy that the legislature itself granted but then stripped away from the common schools. This

“separate and unequal” system of charter schools is inconsistent with the constitutional

requirements for a common school system. The common schools must be open to every child,

and operated, managed and fully accountable to the taxpaying public.

Whether the charter schools envisioned by HB 9 are good or bad, they are outside the scope

and definition of the “common schools” defined by our Ky. Constitution. The legislature in HB

9 has authorized the creation of a system of non-public schools that: 1) will be governed by an

unelected board of private citizens; 2) may contract with private for-profit “education service

providers” to operate and manage these schools; 3) are exempt from “all statutes and administrative

regulations applicable to the state board, a local school district, or a school”; and 4) will be funded

by state and local tax dollars without any effective legal or public accountability. There is no

way to stretch the definition of “common schools” so broadly that it would include such privately

owned and operated schools that are exempt from the statutes and administrative regulations

governing public school education.

From the time of the earliest cases applying Section 184 of the Ky. Constitution, it has been

uniformly held that “the intention [of Sec. 184] was to prohibit the collection of any taxes to any
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extent for educational purposes other than common schools, without the consent of a majority

of voters.” Brown v. Board of Education of City of Newport, 108 Ky. 783, 57 S.W.612, 613 (Ky.

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1900). (Emphasis added). The charter school legislation before this Court collects and expends

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tax dollars for schools that are not “common schools” within the meaning of the Ky. Constitution.

Accordingly, this legislation cannot be upheld, “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.”

Ky. Const. Sec. 184.

As recently as last year, the Kentucky Supreme Court reiterated the vitality of the

prohibition against using public tax dollars for educational purposes that are “outside the system

of common schools.” Commonwealth ex rel. Cameron v. Johnson, 658 S.W.3d 25, 36 (Ky. 2022).

There is no way to uphold the expenditure of tax dollars for charter schools under the provisions

of HB 9 without doing violence to this recent ruling of the Kentucky Supreme Court. HB 9 erects

an elaborate structure of mandated public authorization for schools with private ownership and

control, and little meaningful public oversight. The charter schools are owned and operated by

private entities. But here, as in Commonwealth ex rel Cameron v. Johnson, the task of the Court

is to “look through the form of the statute to the substance of what it does.” Id. at 37. And the

substance of what this statute does is to establish taxpayer funded private schools that are exempt

from the laws and regulations of the system of common schools established by our Ky.

Constitution and laws.

The violation of Section 186 of the Ky. Constitution is even more clear. That provision

requires that “All funds accruing to the school fund shall be used for the maintenance of the public

schools of the Commonwealth, and for no other purpose, and the General Assembly shall by

general law prescribe the manner of the distribution of the public school fund among the school
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districts and its use for public school purposes.” (Emphasis supplied). To take tax dollars to

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support these privately owned and operated charter schools is flatly inconsistent with the mandate

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of Section 186 of the Ky. Constitution.

As the Court held in Johnson, “Forty years ago, in Fannin v. Williams, 655 S.W.2d 480

(Ky. 1983), this Court applied Section 184 to strike down a statute supplying textbooks to children

in Kentucky’s nonpublic schools. The statute tried to avoid constitutional infirmity by having the

state department of libraries rather than the department of education purchase the books ….” 658

S.W.3d at 36. The Johnson Court went on to adopt the ruling of the decision striking down the

legislation in Fannin, and quoting Fannin in terms that apply equally here: “The statute in question

seeks to evade constitutional limitations by a series of devices, which do more to point up the

constitutional problems than to avoid them.” Id. Here, as in Johnson and Fannin, “The

Commonwealth is obliged to furnish every child in this state an education in the public schools,

but it is constitutionally proscribed from providing aid to furnish a private education.” Fannin, 655

S.W.2d at 484. This legislation seeks to provide tax dollars “to furnish a private education.” The

legislature cannot do indirectly what the Constitution prohibits them from doing directly:

“Constitutional provisions, whether operating by way of grant or limitation, are to be enforced

according to their letter and spirit, and cannot be evaded by any legislation which, though not in

terms trespassing on the letter, yet in substance and effect destroy the grant or limitation.”

Commonwealth v. O’Harrah, 262 S.W.2d 385, 389 (Ky. 1953).

Here, Section 184 of the Kentucky Constitution gives the legislature a clear path to advance

the public policy they seek to enact in HB 9: a voter referendum. Section 184 provides that “No

sum shall be raised or collected for education other than in the common schools until the question
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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.”

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CONCLUSION

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For the reasons stated above, IT IS ORDERED AND ADJUDGED that the motion of the

Plaintiffs for Summary Judgment GRANTED and the cross-motions of the Intervening

Defendants are DENIED. Accordingly, IT IS ORDERED AND ADJUDGED as follows:

1) the provisions of House Bill 9 are declared to be UNCONSTITUTIONAL under

Sections 183, 184 and 186 of the Kentucky Constitution;

2) The Commonwealth of Kentucky, the Kentucky Department of Education, the

Kentucky Board of Education and all officers, employees, agents, and persons acting

in concert with them, including Intervening Defendant Lafontaine, his agents and

employees, are PERMANENTLY ENJOINED under CR 65 from implementing the

provisions of House Bill 9, and from distribution or expenditure of any tax dollars to

charter schools under that statute.

So ORDERED this, the 11th day of December, 2023.

____________________________
PHILLIP J. SHEPHERD, JUDGE
Franklin Circuit Court, Division I

Distribution:

Byron E. Leet Todd G. Allen

Virginia Hamilton Snell Ashley Lant
Mitzi D. Wyrick Kentucky Department of Education
Sean G. Williamson 300 Sower Blvd., 5th Floor
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Wyatt, Tarrant & Combs, LLP Frankfort, Kentucky 40601

400 West Market Street, Suite 2000 Counsel for Commissioner of Education,
Louisville, KY 40202 and Kentucky Board of Education, and Board
Counsel for Plaintiffs Chair Lu Young

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Christopher L. Thacker

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Aaron J. Silletto
Office of the Attorney General
700 Capital Avenue, Suite 118
Frankfort, KY 40601
Counsel for Intervening Defendant
Commonwealth of Kentucky ex rel.
Attorney General Daniel Cameron

Paul E. Salamanca
279 Cassidy Avenue
Lexington, Kentucky 40502
[email protected]
Counsel for Intervening Defendant Gus
LaFontaine

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