FRANKFORT, Ky. (AP) — A judge heard arguments Thursday over the constitutionality of allowing public tax credits to support private school tuition as a school-choice dispute reached a Kentucky courtroom.
Opponents said the provisions represent a form of aid to private education — through the state tax code — that’s prohibited by Kentucky’s Constitution. Attorneys defending the measure said tax credits don’t amount to government spending. They claimed the provisions are constitutional.
“The General Assembly has a lot of discretion as to how it might want to incentivize charitable behavior and giving using the tax structures,” state Assistant Deputy Attorney General Christopher Thacker said in defending the provisions.
The hearing in Franklin County Circuit Court focused on a key part of a new state law enacted by the Republican-led legislature over Democratic Gov. Andy Beshear’s veto. Judge Phillip Shepherd, who indicated he hopes to rule within weeks, expressed concerns about the provisions.
The law created a form of scholarship tax credits — referred to by supporters as education opportunity accounts. Under the measure, private donors backing the accounts would be eligible for tax credits. The grants, managed by third-party groups, could be used for an array of educational expenses — including private school tuition in several of the state’s most populated counties.
The measure’s opponents say it would undermine support for public education.
The Council for Better Education is among plaintiffs challenging the provisions. The same group sued over inequities in Kentucky school funding more than 30 years ago. That case led to passage of the landmark Kentucky Education Reform Act.
Eric Harrington, an attorney representing the plaintiffs, said during Thursday’s court hearing that the legislature created an unconstitutional system to channel funds to private schools through the use of a “really irresistible and attractive tax credit” for wealthy donors.
Supporters of the measure say it offers opportunities for parents who want new schooling options for their children but are unable to afford them.
In raising one of his concerns during the hearing, Shepherd said the money involved “is not just an act of philanthropy, it’s money that was owed to the state as taxes.”
The judge praised efforts to help children, but he also expressed concerns that the provisions would “almost inevitably” create a “two-tiered” system of education.
“There’s going to be a small subset of kids in Kentucky who will get the advantage of this, and the rest of the kids in Kentucky are going to be excluded,” Shepherd said.
Thacker responded that the provisions have an “egalitarian purpose.” The measure gives some low-income parents the same opportunity wealthy families already have to send their children to private schools, he said.
The lawsuit asks that the judge block state revenue officials from implementing the program and strike down those provisions.