School choice challenge leaves program’s future uncertain

Archbishop Joseph E. Kurtz spoke with a group of students from St. Albert the Great School before a school choice rally on the lawn of the state capitol in this 2018 file photo.  (Record File Photo by Ruby Thomas)


School choice legislation, which has been a goal of the Catholic Conference of Kentucky for more than two decades, is set to become law at the end of the month. A lawsuit filed last week seeks to stop it before it takes effect.

The CCK, the public policy arm of the state’s bishops, says the law will give low-income families the financial means to choose the educational tools they need — things that wealthier families can readily access. Opponents say the measure allows public funds to be funneled to private schools.

The legislation provides an incentive to individuals and businesses that make donations to certain organizations that disperse funds to qualifying students for educational services. The incentive is a state tax credit, capped at $25 million annually. When donations statewide amount to $25 million in credits, the tax relief will be exhausted for the year.

Under the measure, donors will be able to give funds to approved “account-granting organizations,” which will disperse the funds to Education Opportunity Accounts for students from lower incomes. Qualifying families may earn up to 175% of the federal income threshold for reduced-price lunch, but priority must first be given to those most in need, initially those whose income does not exceed the threshold for reduced-price lunch.

The accounts can be used by public and non-public school children for services such as 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.

The lawsuit filed on behalf of public school boards and a group of Kentucky parents last week challenges the constitutionality of the legislation. The lawsuit claims the tax credit is a scheme to “move state revenue through a private grant program.” As a result, it says, “state expenditures will impermissibly fund private schools.”

In response to the lawsuit, the Institute for Justice, a non-profit firm that has defended school choice laws around the country and before the U.S. Supreme Court, has filed a motion to intervene on behalf of parents who support the law.

A press release from the firm said, “The lawsuit’s arguments echo arguments made in many other unsuccessful legal challenges to school choice programs throughout the country.”

Andrew Vandiver, associate director of the Catholic Conference of Kentucky, said tax credits are a common incentive in Kentucky, but those offered for school choice are unique because they’ll help Kentucky’s children.

“This is a program that encourages individual donations to be given to families. Kentucky gives out so many tax credits — to people who make movies, who restore historic properties to the tune of hundreds of millions. This is a program that’s helping families get the education and services they need for their children.

“Just this session, the General Assembly passed $175 million in tax credits, I believe.

Those may have merit. Ninety percent or more of every dollar of these (education) tax credits will go to families for therapy, tutoring, dual credit college courses, education technology, tuition for private school in certain counties, summer programming. Things that will tremendously help kids. Students in public schools can access this funding, not just private schools.”

He added that Kentucky families — from public and non-public schools alike — will be adversely affected if the law is delayed.

“There are parents right now trying to plan their children’s education and now they’re looking at this lawsuit,” he said. “The stakes are high. There are thousands of students who may not get the help they need next year.”

Vandiver added that he’s optimistic.

“I think we are going to win, but it may take a while to get there. I feel confident the law is on our side.”

Marnie McAllister
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Marnie McAllister
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