Kentucky’s school choice program, the Education Opportunity Account Program, became law in 2021. But a lawsuit filed before it could be implemented has the future of the program in the Bluegrass State in a state of limbo.
The Kentucky Supreme Court heard oral arguments on Oct. 12 to determine the constitutionality of the program. The hearing was held in Shelbyville instead of at the capitol as part of a program to make the court’s proceedings more accessible to the public.
The Catholic Conference of Kentucky, the public policy arm of the state’s bishops, has advocated for a school choice program for more than two decades.
The conference told The Record in June 2021, as the law was supposed to take effect, that the program is meant to give low-income families the financial means to choose the educational tools they need — things wealthier families can readily access.
The Education Opportunity Accounts can be used by public and non-public school children for more than a dozen different services, including special-needs therapies, tutoring, summer programs, dual college credit courses and other educational services.
In counties where the population exceeds 90,000, students can also use the funding for tuition assistance to attend non-public schools.
Opponents of the program say a tax incentive in the measure allows public funds to be funneled to private schools.
The program provides the incentive for individuals and businesses that donate to organizations that disperse funds to qualifying students for educational services. The incentive is a state tax credit, capped at $25 million annually.
To benefit, donors must contribute funds to approved “account-granting organizations,” which will distribute the funds to Education Opportunity Accounts for students with lower incomes. The Catholic Education Foundation, which provides tuition assistance for Catholic school students, would serve as the main account-granting organization, or AGO, for the Archdiocese of Louisville.
“The program itself encourages and strongly incentivizes private donations that would go into a fund for which financially needy families could apply to cover their children’s needs,” Andrew Vandiver, associate director of the Catholic Conference of Kentucky, said in a recent interview. “It’s really about funding families directly and giving them the additional support they need to help their kids.”
Vandiver said no other state that has introduced similar legislation has struck down a school choice program of this nature.
The appellants were represented by counsel for the Commonwealth of Kentucky Attorney General Daniel Cameron’s office; the Institute for Justice represented two parents.
Opposing counsel representing the plaintiffs — Better Education, Frankfort Independent School Board and Warren County School Board — argued before the court that the tax incentive will act as a means for donors to fund private schools with the taxes they pay and that the state of Kentucky would bear the financial burden.
Vandiver, echoing the appellants’ counsel, disagreed.
“It’s completely different than a government funding a private school,” he said. “Even the U.S Supreme Court took this up and said there is no basis under law that says a tax credit is government money. We would literally be the only state in the country that has gone that way. The implications of doing that are just enormous.”
Under the Education Opportunity Account Program, donors will apply for the credit and recipients will apply for the accounts. The Catholic Education Foundation said it had the infrastructure for the program in place when the lawsuit was filed.
“Until the lawsuit was filed, we’d spent a lot of time educating donors, garnering their support for the program,” Richard Lechleiter, CEF president, said. “The taxpayer has to apply for the credit — we could help them do that. We’re poised to establish ourselves as an AGO and already have the infrastructure here to be that. We’re poised to make some things happen for our kids.”
He said the program would be “transformational.”
This year, the CEF provided 3,600 Catholic school students with $7.7 million in tuition assistance. The Education Opportunity Account Program will have an annual cap of $25 million. And Lechleiter believes about one-fifth of it could benefit students in the Archdiocese of Louisville.
“It seems to me very plausible at least $5 million could be gained,” he said. “We should be able to accomplish that. Another 2,000 to 2,500 kids that all of a sudden … have reliable, predictable, stable access to funding. That changes everything. That changes the landscape of Catholic education in Kentucky forever. Period. In my lifetime there’s never been a change that transformed Catholic schools so incredibly.”
The Kentucky Supreme Court typically takes three months to issue decisions, Vandiver said. However, two justices are retiring this year and two others facing the end of their terms will be up for reelection in November. Additionally, one of the justices wasn’t present for oral arguments heard last week.
