Kentucky Supreme Court strikes down controversial school choice measure

Kentucky Supreme Court Justice Lisabeth Hughes

Editor’s note: This article appeared Thursday on

A controversial school choice program that would have provided dollar-for-dollar tax credits to those donating money for nonpublic school tuition is unconstitutional, the Kentucky Supreme Court ruled Thursday.

The program, blocked by lower court proceedings for more than a year, could have cost the state up to $25 million in its first year of implementation. Both individuals and corporations would have been able to write off up to $1 million on their state income taxes.

In a unanimous opinion, the court’s seven justices cited a section of the Kentucky Constitution that prohibits the state from raising funds for nonpublic schools.

“Simply put,” the justices wrote, the school choice program “puts the Commonwealth in the business of raising ‘sums … for education other than in common (public) schools.’”

The court declined to speak to the intent of the 2021 law creating the tax credit program — namely, whether the goal of raising money for more children to have the choice of attending nonpublic schools is with or without merit, though the justices did cite precedent from a 1983 case:

“We cannot sell the people of Kentucky a mule and call it a horse, even if we believe the public needs a mule.”

“If the legislature thinks the people of Kentucky want this change, (it) should place the matter on the ballot,” the court wrote, citing Fannin v. Williams, the 1983 case that struck down the state’s attempt to purchase textbooks for nonpublic school students.

Thursday’s decision ends a lengthy legislative and legal process to make “education opportunity accounts” a reality in Kentucky.

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BY Special to NextSteps