Kentucky's solicitor general argued in favor of the state funding charter schools before the Kentucky Supreme Court on Thursday, saying they are still part of the public school system despite being run by an independent board.
The Council for Better Education, which represents a coalition of school districts, and the Kentucky Board of Education argues charter schools are fundamentally different from traditional public schools, and tax dollars shouldn't be redirected to them — at least, not without a vote.
The outcome of the case will decide whether or not a 2022 funding mechanism for charter schools runs afoul of the constitutional prohibition on directing tax dollars outside of the common school system and the state's mandate to maintain an "efficient system of common schools."
The arguments come in the aftermath of the failure of last year's Amendment 2, the ballot measure that would have changed the state constitution to allow public dollars to fund education outside of public schools. Kentucky Solicitor General Matt Kuhn, who works for the Republican attorney general's office, defended the GOP-controlled legislature's attempts to create and fund a system of public charter schools, saying they should be considered part of common schools — not outsiders.
"Charter schools are public schools in the same way every other public school is a public school. It's open, it's free to all, and what the General Assembly has done with this law is they've said, 'We want to innovate,'" Kuhn told reporters after oral arguments.
But Byron Leet, who is representing the Council for Better Education, said the 2022 law diverts much needed public dollars away from traditional public schools, in violation of the state constitution. The law required school districts to divert funding to charter schools, run by private boards or companies, approved with their boundaries.
Leet argued that common schools must, by definition, be overseen and controlled by elected officials, and charter schools are first and foremost beholden to their independent board of directors.
"Common schools are schools taught in a district under the control of elected officials. There is some window dressing, I'll call it, that appears to create some local school board involvement in these schools," Leet said. "But make no mistake about it, these charter schools, if they went into effect, they are not controlled by elected officials who stood before the voters and were voted in to represent that school district."
The court is considering whether to affirm or overturn a 2023 ruling by Franklin County Circuit Court Judge Phillip Shepherd, who found the charter school funding law in conflict with the state constitution, which calls for a "uniform and efficient system of common schools."
Several justices appeared highly skeptical of the arguments for charter schools, primarily Justices Angela McCormick Bisig and Michelle Keller. They represent Jefferson County and a large portion of northern Kentucky respectively. Lawmakers mandated one charter school be approved in northern Kentucky, and another in Jefferson County.
Keller questioned if diverting funds away from public schools and toward charters would lead to worse outcomes for the students who must still attend public schools.
"They have buildings to maintain. They have utilities to pay. They have staff on board," Keller said, listing fixed costs for public schools. "Why is that not going to dilute and make even worse the situation for those students that don't get in the couple charter schools in the county?"
Bisig too questioned the oversight controls for charter schools, and questioned whether it was appropriate to send tax dollars out of control of an elected school board.
"This is the point of a charter school; [it] has autonomy over decisions, including, but not limited to, matters concerning finance, personnel, scheduling, curriculum instruction, which are all the basic things a school does," Bisig said. "They are autonomous from what traditionally in our Commonwealth are our locally elected school boards who set policies on those things. And part of the goal of a charter school is to be outside of that structure."
If approved, a charter school is allowed to operate on a five year term. About a year before its charter is about to expire, the school's authorizer puts out a performance report, launching a process to review the standards and progress the school has made. According to the statute, the authorizer can only take action to immediately revoke a charter if the issue "threatens the health and safety of the students of the public charter school."
Kuhn argued those oversight mechanisms mean the public charter is still appropriately accountable to the public.
"Charter school students have the same compulsory attendance laws as every other public school student. They have to hire only certified teachers, same as every public school," Kuhn said.
Corey Nichols, who represented the Kentucky Board of Education Thursday, said the board does not agree that charter schools fall within the definition of a common school because it is exempt from several regulations that apply to all other public schools.
"They can pick and choose which standards they choose to apply to them," Nichols said. "While they are required to meet the Kentucky Performance Standards for Educational Accountability, there are some, as I mentioned, that aren't included as a performance metric — things that are more subjective, like health and PE, the arts, music education."
The court's newest justice, Pamela Goodwine, asked whether she should consider the failure of Amendment 2 when deciding the fate of public charters in Kentucky. She said she believes it was a referendum on whether Kentuckians wanted charter schools, although lawyers in favor of them argued the failed constitutional amendment was much broader and dealt with the funding of private schools through public funds.
"A majority of voters in every county voted against the amendment," Goodwine said. "Should that impact our decision, or should we just ignore the nearly two-thirds of the voters who do not wish to have taxpayer funds used in this manner?"
The state argued throughout the case that the creation of charter schools was designed to innovate and improve on a failing system of public schools. Lawyers pointed to the states surrounding Kentucky, all of which contain some form of charter education and argued that Kentucky students are "missing out." Kuhn said the push for charter schools reflects a need for more innovative approaches to meet student needs.
"There's already diversity built into our common school system, and the reason that is because not all of our kids are the same," Kuhn said. "We have a diverse student population, so to have an efficient system, common schools as a whole, we have to have a diverse system."
In a separate case concerning the same sections of the state constitution requiring the General Assembly and state to provide an efficient system of common schools, students at public schools across Kentucky argued the state has underinvested in public schools and has failed in its duty to properly educate students. The case builds on Kentucky's landmark Rose decision, which found Kentucky's public schools were constitutionally inadequate.
Kuhn argued public charter schools are part of the legislature's attempt to create an adequate public school system, and the courts should let them proceed.
"Rose told us also that the General Assembly gets to decide that it has discretion," Kuhn said. "That's the obligation. And I think this is the General Assembly saying, 'Court, you told us this in Rose, and we're taking this seriously.'"
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
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