Republican-controlled states have been expanding voucher programs in recent years, following the lead of former Secretary of Education Betsy DeVos, ALEC, and the Koch network of funders.

But Kentucky just hit a roadblock. A Franklin County judge ruled last week that the state’s voucher program violates the state constitution.

The Republican-led legislature narrowly passed the Education Opportunity Account Program earlier this year. It would allow individuals and corporations to donate to a scholarship fund run by a nonprofit “account granting organization,” or AGO. The donor would receive a state tax credit of up to 97% in return. Low- and middle-income families in the state’s nine most populous counties would be able to apply to the AGO to use those funds for private school tuition.

The nonprofit public education advocacy group Council for Better Education sued to challenge the program in court in June, representing two Kentucky school districts and a group of parents.

Circuit Court Judge Phillip Shepherd agreed with the plaintiffs that the Educational Opportunity Account Program violates provisions in the Kentucky Constitution that prevent tax dollars from going to private schools.

Shepherd cited a constitutional provision that states, “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.”

Attorneys with the national libertarian think tank Institute for Justice, which intervened to defend the program, argued that because the would-be tax dollars never enter the state’s coffers, the funds should be considered private, charitable donations.

Shepherd disagreed.

“Here, applying the plain language of the Kentucky Constitution, the income tax credit at issue raises a sum of money for private education outside the system of common schools. That it does so through a tax credit rather than a direct appropriation is not relevant, applying the plain language of §184,” he wrote.…

The judge also echoed the plaintiffs’ concerns that the program could send funds to private schools that discriminate against certain students. The law prevents the state from forcing participating private schools to change their “creed, practices, admissions policy, or curriculum.”

“Accordingly, the funds can be paid to schools that exclude children with learning disabilities, and educational providers can discriminate on any basis they choose, and still receive EOA funds. It appears education providers are exempt from all of the safeguards and accountability measures that the legislature has enacted that apply to public schools,” Shepherd wrote.…

Meanwhile, proponents of private schools were swift to attack Shepherd’s decision.

Andrew Vandiver, president of EdChoice Kentucky, said the group was “disappointed” with the decision. EdChoice is an advocacy group that promotes charter schools and public funding of private schools.

How refreshing to read a court decision that refers to the spirit and the meaning of the law, not a tortured interpretation that turns the law on its head. That has happened in many other states, where conservative judges have ruled that the state constitution–which specifically forbids public funding of private and religious schools–does not actually stand in the way of funding private and religious schools.