Kentucky's constitution and choice
From the Bluegrass Institute:
While the constitutional merits of any school-choice legislation may deserve public debate, a new report sheds some light on steps Kentucky can take to make it even more difficult for opponents of choice to mount constitutional challenges.The report, produced by the Institute for Justice and the American Legislative Exchange Council, indicates that a tax-credit plan likely represents Kentucky’s best option for creating a constitutionally sound school-choice program.
However, while the report states that a voucher program would be “difficult, if not impossible” to implement considering the current language of the state constitution, it indicates that a Kentucky Supreme Court decision “may create a limited exception for programs directed to special education students. The funding for such a program should explicitly come from a source other than the ‘common school fund,’ and the money should be allotted to parents rather than schools.”
The report cites the case of Butler v. United Cerebral Palsy of Northern Kentucky Inc., 352 S.W.2d 203 (Ky. 1961), which set up a distinction between providing funds for the education of exceptional children and educating children. As such, the report indicates that a disabled-student scholarship program should be termed as one that supports child welfare rather than education.
The current language of Kentucky’s constitution appears to limit school choice. However, other options – public-school choice, tax credits, charter schools and programs that provide better services for learning-disabled students – remain strong and viable options under the commonwealth’s constitution.
