Attorney: Legal challenge to school choice policy ‘a delay tactic’
Bluegrass Institute attorney Steven J. Megerle called a lawsuit filed by the Council for Better Education (CBE) against a tax-credit policy included in school choice legislation passed during this year’s General Assembly “a delay tactic.”
Megerle said he’s optimistic the program will withstand a legal challenge.
“Only if a statute clearly and unequivocally violates the Constitution can a court void an act of the General Assembly," he said.
A portion of House Bill 563, an omnibus school choice bill passed after lawmakers overrode Gov. Andy Beshear’s veto, allows students in Kentucky’s largest counties to use funds from education opportunity accounts (EOA) to cover tuition and expenses at private schools. Another portion of the bill allows funds from those accounts to be used by qualifying students in all counties for a variety of educational services in both public or private sectors including tutoring, textbooks, AP exams and college entrance tests and various therapies.
These accounts will be funded by voluntary donations from individuals and businesses to state-approved nonprofit Account Granting Organizations, which would then be responsible for distributing the funds both to private schools and to educational service providers who would also require Frankfort’s approval to accept EOA funds.
The legislation originally was filed as an open enrollment bill that would facilitate public school students enrolling in a district other than the one in which their reside.
However, the CBE is challenging only the portion of the bill allowing EOA dollars to apply toward private school tuition and fees, which will allow Kentucky’s lower-income students to have access to the kind of education their families could not otherwise afford. Many of the students in the 31 states, the District of Columbia and Puerto Rico which have private school choice programs today are minorities from low-income homes.
Megerle notes that the legislation helps level the playing field so that minority and low-income children have more opportunities.
“Education is the civil rights issue of the 21st century,” Megerle said. “No parent should be denied a choice of the best possible education for their children because of zip code, school boundary lines or their ability to afford a certain mortgage or rent. HB 563 will help level the playing field, finally, and will lend to future generations of Kentuckians finding success and prosperity as they fulfill their God-given destinies.”
The Kentucky Department of Revenue (KDOR) is tasked with compiling and issuing the guidance for HB 563. Officials indicate the department is in the beginning stages of building the necessary framework to administer this tax credit program and will be issuing public guidance in the coming months as the framework is put in place. Interested parties can monitor revenue.ky.gov for updates and future guidance.
Meanwhile, the CBE will likely attempt to convince Franklin Circuit Judge Phillip Shepherd to halt the program before it goes into effect on July 1 at the beginning of the commonwealth’s fiscal year.
Megerle cautioned the court to act with restraint in light of the legislature’s actions.
“In Kentucky, as a general matter, any statute passed by the General Assembly is presumed to be constitutional and laws passed must be liberally construed by any court to uphold their constitutionality and promote the intent of the legislature,” he said. “I expect a vigorous and successful defense by Attorney General Daniel Cameron and other stakeholders. The time for school choice has arrived in Kentucky; this litigation is simply a delay tactic, which, if allowed to succeed, will simply deny access to a better future for many of our state’s neediest children.”