A Bad Day for School Choice Advocates at the Kentucky Supreme Court

The state high court rules against the Education Opportunity Act.

Kentucky's Education Opportunity Account Program was launched in 2021 for the stated goal of providing "more flexibility and choices in education to Kentucky residents and to address disparities in educational options available to students." The program works by providing money to eligible families, who may spend it on various educational needs, including private school tuition. The program is privately funded and the state offers tax credits to the private donors who support it.

Or at least the state did. In a decision issued today in Council for Better Education v. Johnson, the Kentucky Supreme Court declared the Education Opportunity Act unconstitutional under Section 184 of the Kentucky Constitution, which says "no sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters." According to the Kentucky Supreme Court, "applying the plain language of this section, the income tax credit raises money for nonpublic education and its characterization as a tax credit rather than an appropriation is immaterial." In other words, because the Education Opportunity Act was not put to a vote, but, in the court's view, the act "raises money for nonpublic education," the act is void.

Among the litigants in the case are families who stood to benefit from the program and hoped to see it survive judicial review. They lost. Those families are represented by lawyers at the Institute for Justice, a nonprofit law firm. "We're disappointed that the Kentucky Supreme Court adopted arguments rejected by virtually every other high court to consider them, including the U.S. Supreme Court," said one of those lawyers, Joshua House, in a statement. "I think Kentuckians would be shocked to learn that their private donations are treated as government money, especially when that conclusion will take away educational options from lower-income families across the Commonwealth—options already available to their more affluent neighbors."

It was a bad day for school choice advocates at the Kentucky Supreme Court.

Comments

[Full Of Buckminster]

The Institute for Justice should never have taken the case. It’s a bad law, but it’s pretty clear.

[I, Woodchipper]

The funds are privately donated. The law is very clear that the question of taxation must be resolved first, and there is no taxation here.

The Bolsheviks on the court make the reach because, like ALL charity, the funds donated are tax deductible.

[Purple Martin]

To be precise, the funds donated are not tax deductible: “…the state offers tax credits to the private donors”

A tax deduction means the amount of the donation may be subtracted from reported income, before total income taxes owed are computed.

A tax credit subtracts the amount donated from computed taxes owed—much more favorable treatment than a deduction. The fiscal impact to the state is the same as if they they directly gave tax money to the recipient of the funded service (private education in this case)

This court found, as have many others, that if a credit (taxes forgone) results in a one-to-one substitution for tax dollars, the amount is the equivalent to the state, of direct taxation.

Buckminster is right. Regardless of one’s position on the law in question, it’s best to present an argument against what it actually does versus something worse that it doesn’t do.

[TJJ2000]

That's how I read that. All they need to do is change it from a "Tax Credit" to a "Tax Deduction". Else get the public vote for it.

[SueMcclain]

Google pay 200$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12000 for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it outit..
🙂 AND GOOD LUCK.:)

HERE====)> http://WWW.WORKSFUL.COM

[JasonT20]

This court found, as have many others, that if a credit (taxes forgone) results in a one-to-one substitution for tax dollars, the amount is the equivalent to the state, of direct taxation.

I don't see the conservatives or libertarians buying an argument that it isn't the same as government spending if it was in service of a progressive priority. If they really want to argue that it isn't, then they should prepare for efforts by Democrats to give tax credits for all kinds of things they think the government can't spend money on doing directly. (Think the Hyde Amendment, for instance.)

My own view is that we shouldn't let legislatures get around rules for spending like that. Offering tax credits isn't inherently bad policy, but it shouldn't be used as a mechanism to get around state constitutional restrictions on government spending.

[KimberlyMiller]

I get paid over 190$ per hour working from home with 2 kids at home. I never thought I’d be able to do it but my best friend earns over 10k a month doing this and she convinced me to try. The potential with this is endless. Heres what I’ve been doing..

HERE====)> http://WWW.RICHSALARIES.COM

[JohnTheRevelator]

Every tax credit targets spending on a particular thing like college tuition, childcare etc. Plenty of those are progressive priorities, but I doubt this fight would ever go the direction you're talking about, because progressives loot the public treasury through an alternative means--grant programs that are technically open to anyone but in practice always go to certain NGOs or activist groups.

Anyway, yes the court's argument is solid. And the ruling doesn't shut down the program, or shouldn't, just takes away the tax credit for the donations. It will probably reduce the donations, but I doubt it will eliminate them entirely. The issue needs to be addressed by legislation. I am troubled by all the commenters who seem to think the court said people aren't allowed to donate to private schools.

[Purple Martin]

True tax credits are uncommon. The targeted, single-purpose ones really are the equivalent of allowing a taxpayer to earmark a specific amount of a tax paid, allowing it to be used only for the purpose the taxpayer directs.

Lots of people would like to do this including, as in this case, funding private religious schools such as, say, a madrassa.

[JohnTheRevelator]

On re-reading TFA, I was wrong earlier to say that the court didn't ban private donations to private schools. The program in question is apparently a bucket of money managed by the state to fund vouchers for private or alternative schools that participate in its school choice program. So the whole program is a problem because the state is directly receiving and controlling the donations. That's why the court concluded that it violates the provision against raising a sum of money for other than the common schools. The tax credit is a red herring.

What the state should do is offer a tax deduction for donations to any accredited school. Then any group that wants to can build a marketing campaign to bring in tax-deductible donations to their schools, and the state has no constitutional issue because it isn't controlling the donations.

[Diane Reynolds (Paul.)]

Progressive originalism?

[bogibiw]

I have even managed $20,000 per calendar month by simply working some easy tasks from my apartment. As I had lost my office career, I was very disturbed but luckily I’ve discovered this best on-line career that’s why I’m capable of earning a thousand USD just from home. Each person can avail this best offer & collect more greenbacks online

HERE====)> http://WWW.DAILYPRO7.COM

[MWAocdoc]

It wasn't nearly as bad a day for school choice as it was for jurisprudence. Legislating from the bench by performing Cirque du Soleil-level mental gymnastics and torturing the meanings of plain English words out of all recognition is the last bastion of socialist transformation by any means necessary. Statists of every persuasion will cheer today.

[PeterPatao]

Cash generating easy and fast method to work in part time and earn extra $15,000 or even more than this online. by working in 1ce85 my spare time. I made $17250 in my previous (ste-03) month and i am very happy now because of this job. you can try this now by follow

details here…….https://smartjobs247.pages.dev

[SMP0328]

The Kentucky legislature should repass this law and put it on the ballot. I think Kentuckians would vote for it. The legislature should also consider proposing an amendment to the State constitution to overrule the Kentucky Supreme Court's decision.

[creech]

Perhaps legislatures should take note of a court's predilections on constitutional language and construct legislation that is very likely to pass muster, instead of hoping for the best?

[TJJ2000]

And your tone would change as soon as Nazi-Camp was being funded by Government via "Tax Credit". The Constitutional outlay sounds completely reasonable and it's not a big deal for legislation to get it right.

[JesseAz]

Brian T. Fitzpatrick, a professor at Vanderbilt Law School who studies methods of selecting judges, looked at the ideological makeup of state Supreme Courts compared to the electorate they serve in a 2017 study. Kentucky, he found, is entirely out of whack. The commonwealth had the eighth highest liberal skew in the country, versus the federal electorate in the state, during his studied period.

https://www.courier-journal.com/story/opinion/2019/08/22/kentucky-supreme-court-too-liberal-conservatives-must-fix/2066884001/

[Muzzled Woodchipper]

Which is why the state Supreme Court continuously voted in favor of Beshear’s horrible Covid policy. No restriction could fail with them. Kentuckians didn’t see a Covid win in the state high court until after it was over.

[I, Woodchipper]

The Bolsheviks wont take a loss without a fight.

The courts are filled with Bolshevik-appointed yes-men. The courts will not save you.

[KarenMuller]

I’ve made $1250 so far this week working online and I’m a full time student. I’m using an online business opportunity I heard about and I’AM made such great money. It’s really user friendly and I’m just so happy that I found out about it. Here’s what I do for more information simply.

Open this link thank you…………….>>> onlinecareer1

[Dillinger]

close the conformity factories. but if not, read the state constitution before enacting programs so blatantly in violation of it

[MWAocdoc]

The program was NOT in violation of the Constitution, blatantly or otherwise. It was not a tax and the money funding it came from private sources. They were not distributing tax money to other than state schools. They were giving a tax credit to the supporters. If you exempt someone from paying some of their taxes as a deduction, it's not even remotely the same thing as distributing tax money. Maybe you should improve your reading comprehension and - I don't know - maybe learn some basic English skillz.

[Dillinger]

we often disagree although I'm entirely less violent about it.

[Purple Martin]

“They were giving a tax credit to the supporters. If you exempt someone from paying some of their taxes as a deduction…”

A tax credit ≠ a tax deduction. To save space, check my reply to the opening comment.

[JesseAz]

The judge decided the term common schools referred to a single public school system. They redefined the word common.

[Dillinger]

sure. 200+ years of legislating from the bench sets a precedent. the People of the Commonwealth should vote on it.

[PapaG]

Not “common” as in “found easily”, it’s “common” as in “public” or “provided for the common good”.

[Longtobefree]

It's not a tax, it's a penalty.
Will that work?

[JoeB]

Kentuckians wrote this stupidly-worded constitution; Kentuckians need to fix it.

[Nardz]

Heads on pikes

[Fast Eddie]

"No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters." Even if the schools are the result of redlining?

[JasonT20]

I don't see how the schools could be the result of redlining. Do you mean redlining creating neighborhoods that end up with higher performing schools because there are more affluent people living there?

[Fast Eddie]

What I'm saying is there is a golden opportunity for African Americans to play the race card and go to whatever school they please.

[JasonT20]

There are still a lot of things limiting school choice even with vouchers.

1) A parent of a child in a low-income neighborhood might have no way to get her child to the school of her choice.
2) The tuition at their school of choice might be higher than the voucher, perhaps by double or more. This would certainly be true for elite private schools that serve the wealthy.
3) The school that they would otherwise choose might be of a religion incompatible with their beliefs. (The vast majority of private schools are religious, and most of those that aren't are elite private schools mentioned in 2))
4) The school that they choose might simply not have room or otherwise not accept the child for all kinds of reasons.

There is a lot of ideology and not enough thought about practical matters in school choice arguments, unfortunately. That makes it a lot more about politics than education.

[Enemy of the State]

1. There is a thing called public transportation. There are also private bus services
2. So? Many private schools work with those of meager means to educate everyone they can.
3.So what? At least they have a CHOICE in the matter, right?
4. So the kid stays in his public school - he's no worse off having been offered a choice, correct?

There's plenty of self-serving BS bandied about to claim that allowing parents ANY choice in who educates their kids and in what manner would be the end of society...

[JasonT20]

There’s plenty of self-serving BS bandied about to claim that allowing parents ANY choice in who educates their kids and in what manner would be the end of society…

I am not claiming any such thing. I am simply pointing out the limitations of the school choice programs that Reason loves to promote. They promote them as the solution to our K-12 education problems, but, like I said, that is pure ideology.

1) Is public transportation going to be cover enough area geographically and be safe enough for elementary age kids? What private bus services? Will those be run by the private schools and with what money?
2) Yeah, private schools will often offer financial aid, but how much and for how many students? Those elite schools get their reputations at least somewhat due to their exclusiveness.
3) Choice? How many schools for Hindi children do you think there are? Jews? Muslims? Atheists/agnostics? They mostly would have a choice between different Christian schools, which probably sounds fine to conservative Christians.
4) No worse off for having a choice - unless the school that they stay at loses so many of its better performing students that don't have learning disabilities, limited English, and have highly involved parents to private schools that the school has fewer resources to deal with a higher percentage of its students having problems that require those resources.

That last thing is really important. Public schools have to take all students that show up that live in the attendance zone. They have to find ways to serve them. Student has a learning disability - the public school has to have specialists to assist regular classroom teachers with that. Student has behavioral issues - they have to find ways to support that student and give them opportunities to improve their behavior. Simply declaring the student to be a discipline problem and expelling them isn't an option. They have due process rights and schools have to build up thick records of interventions and plans, contact with parents, and everything else before they could move to expel a student. Student speaks Portuguese? Vietnamese? Arabic? And virtually no English? The public school has to find a way to teach that child. The student has a lack of motivation and won't complete assignments or study for tests? The public school has to find a way to motivate the student, even if the parents won't help them do that. More students show up to attend the school than they have teachers and space for? Guess they have to find extra desks and the teachers will just have to deal with 36 kids in the same room trying to teach them chemistry.

The point of publicly funded education is to provide the best education possible to every child, no matter what resources or capabilities the child's parent or legal guardian can offer. That is what taxpayer money should go toward. If private schools and private donors want to offer scholarships to low income families for school choice, by all means, go for it. But unless those private schools are going to take any child and make it work the same way that a public school has to, then private money is all that should go to private schools.

[Fast Eddie]

The point of publicly funded education is to provide the best education possible to every child, no matter what resources or capabilities the child’s parent or legal guardian can offer.

But it clearly isn’t working and getting worse as time goes on. Where in inner city America is that public school?

[Fast Eddie]

Sooooooo maintain systemic racism?

[JasonT20]

You said "go to whatever school they please." I pointed out that no voucher program provides transportation, includes every private school that exists or covers tuition beyond a set amount, requires schools to be neutral on religion, or requires schools to take every student that shows up. Put simply, what you said is not true for any voucher program any state has ever implemented or ever would.

If you want to say that it is better than the status quo, or gives them more choice, then use those words instead of "wherever they please."

And, are vouchers the only way to end systemic racism?

[Fast Eddie]

It works for the GI Bill? Nevertheless, point taken. But in that case, we should come up with ideas to address the issues you listed rather than continue the inequity in order to pad salaries and fuel Randi Weingarten’s private jet (which is what anti-choice is really about) with useful idiots to vote for them.

[JasonT20]

I think Kentuckians would be shocked to learn that their private donations are treated as government money, especially when that conclusion will take away educational options from lower-income families across the Commonwealth—options already available to their more affluent neighbors.

Why should anyone be shocked? Because some judges in the past, including Justices on the Supreme Court, perhaps, have shown agreement with the argument that a dollar for dollar tax credit isn't government spending? How about Democrats offer up such a tax credit for private donors to pay for abortions for low-income women? Is the government not funding abortion then?

No one is really being fooled here. Legislatures have always used tax credits to accomplish things they want when they don't want to have to vote to spend money on it. Or when they can't. That courts have so often let them get away with it is bad for the courts.

If this program is so great, let the voters have a direct say on it. I would disagree (though I'm not in Kentucky to be able to vote for or against it), but I couldn't argue that it violated the Kentucky Constitution.

[Enemy of the State]

The state allowing you to keep more of your own justly earned income through a reduction in your tax bill is only "spending" if you agree the state has 1st claim on all your productive output...

[JasonT20]

The state allowing you to keep more of your own justly earned income through a reduction in your tax bill is only “spending” if you agree the state has 1st claim on all your productive output…

We are talking about a tax credit that only applies to you if you spend an equal amount of money on something that the government wants you to spend it on.

Government says: "You owe us $1000 in taxes. But if you give $500 to a private school scholarship program, you'll only have to pay us $500."

And you think that is you getting to keep your money? You're still going to be out $1000 either way. You just get to send some of it to a private school scholarship fund instead of the state general fund, if you like that idea.

[Roberta]

Presumably the tax credit will be put to the voters, and I'm sure it'll pass. I mean, who turns down a chance at a tax break?

[AmyMcconnell]

Google pay 200$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12000 for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it outit.. ???? AND GOOD LUCK.:)

HERE====)> http://www.worksclick.com

[rloquitur]

The Supreme Court of Kentucky tolerated the abuse of a bar applicant by the bar authorities--it is a bad joke.

[Enemy of the State]

RE: Tax credits = spending. I am always amused when the state regards allowing the individual to keep more of his own justly earned income as "spending". As if we are simply tax cows to be milked.

If the tax credits were "refundable", they would indeed be spending, but this does not appear to be the case here...

[Purple Martin]

Think of it as a straw purchase. Because of your violent felony conviction you aren’t allowed to buy a gun. You give me the money (plus a little more for the trouble) and I buy the gun and deliver it to you.

Or a campaign finance violation. Sam Bankman-Fried contributes the federal limit of $5,800 to each of the four members of The Squad, and directs ten people who work for him to make the same max $5,800 donations. He then gives them $25,000 bonus checks to make up for it.

Applying that to the article’s topic of private religious schools, the Establishment Clause prohibits direct government funding of a Mosque or Madrassa. So, enough American Taliban members calculate their taxes owed and determine how much extra that can afford to add to to that, to finance the Taliban’s childhood education program. They donate that amount to their Mullah instead, and the government then grants each person a tax credit that reduces each person’s taxes owed by the amount of their Taliban donation.

That’s “allowing the individual to keep more of his own justly earned income” only so far that its intent is to encourage the individual to earmark a portion of owed taxes to a government-favored but not lawfully allowed government spending program.

Clear?

[KarenMuller]

I’ve made $1250 so far this week working online and I’m a full time student. I’m using an online business opportunity I heard about and I’AM made such great money. It’s really user friendly and I’m just so happy that I found out about it. Here’s what I do for more information simply.

Open this link thank you…………….>>> onlinecareer1