A judge in Kentucky ruled that the law funding charter schools violated the state constitution, holding that the state cannot send public dollars to privately-operated schools. In effect, he ruled that charter schools are not public schools.

The Lexington Herald Leader reported:

Franklin Circuit Judge Phillip Shepherd issued an order Monday finding that House Bill 9, which set up a funding mechanism for charter schools in the state, violated the Kentucky Constitution.

Charter schools – schools that are publicly funded but operated by independent groups with fewer regulations than most public schools – are technically legal in Kentucky, but HB 9 would have created a mechanism for funding them with public dollars.

Shepherd said that while there is vigorous debate on the merits of charter schools, the bill violated the plain language of the constitution, which includes a requirement for “an efficient system of common schools” and that tax dollars can’t be used to support non-public education.

“The central question in this constitutional analysis is whether the privately owned and operated ‘charter schools,’ which are established by this legislation, should be considered ‘common schools’ or ‘public schools’ within the meaning of Sections 183, 184 and 186 of the Kentucky Constitution? A review of the case law, and the plain language of the Kentucky Constitution itself, yields the inescapable conclusion that ‘charter schools’ are not ‘public schools’ or ‘common schools’ within the meaning of our state’s 1891 Constitution,” Shepherd wrote.

The bill also would have mandated the creation of two pilot charter schools, one in Louisville and another in Northern Kentucky…

HB 9 passed out of the GOP-led legislature, but faced a rocky path as many rural Republicans teamed up with Democrats to oppose the legislation. In several rural Kentucky counties, public schools are the largest employer and non-public schooling options are scant.

The ruling comes as statehouse Republicans are mulling a constitutional amendment, which would need to be passed by the legislature and then approved by Kentucky voters on the ballot, to allow for tax dollars to be used to support non-public education. The Kentucky Supreme Court earlier this year affirmed a Franklin Circuit Court ruling against a “school choice” law setting up a tax credit-funded scholarship system for students to attend private schools.

Shepherd referenced the conclusion of that case in his order against House Bill 9.

“There is no way to uphold the expenditure of tax dollars for charter schools under the provisions of HB 9 without doing violence to this recent ruling of the Kentucky Supreme Court. HB 9 erects an elaborate structure of mandated public authorization for schools with private ownership and control, and little meaningful public oversight… The substance of what this statute does is to establish taxpayer funded private schools that are exempt from the laws and regulations of the system of common schools established by our Ky. Constitution and laws,” Shepherd wrote.

The suit against the law was led by Council for Better Education, a pro-public education group in Kentucky.