November 14, 2022

James P. Dady: Charter schools in Kentucky: A horse or mule?

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In Kentucky, the state Supreme Court is considering a case that will determine whether or not Kentucky’s new charter school law violates the state constitution. The issue, in a small way, has cropped up before in the state.

In a 1983 in a case called Fannin v. Williams, the Court considered whether Section 171 could be harmonized with a program the providing of secular textbooks to private schoolchildren.

The books were the same as those provided to public schoolchildren. The legislative authors of the program were careful to dress it as aid to the schoolchildren and not to the schools themselves. There has been a recent U.S. Supreme Court decision holding that the same program enacted in New York did not offend the U.S. Constitution, accepting the distinction between school and student the advocates sought to draw.

The Fannin court held the Kentucky law to be unconstitutional. Its advocates did not take proper account, the Court found, of several sections of the Kentucky Constitution which seem to forbid the levying and spending of tax dollars for non-public education.

“In sum,” wrote the late Justice Charles Leibson for the majority, “the Kentucky Constitution contemplates that public funds shall be expended for public education” unless such spending is approved by voters at a referendum.

“We cannot sell the people of Kentucky a mule, and call it a horse, even if we believe the public needs a mule,” Justice Leibson wrote.

Dady says that will be a tough precedent to overcome. He also considers some of the arguments being made, and correctly deduces that other issues may be in play here.

Other than touting charter schools as a better choice than public, about what might be taught at charter schools their Kentucky advocates have had little to say, but it has been extensively reported that in other states the charter program has tilted to the political right. Some in Ohio have adopted the 1776 Curriculum, which is a project of conservative Hillsdale College in Michigan.

It is a short path to concluding that the charter school forces in Kentucky and elsewhere aim to launch academies of conservative education widely, and prevail on legislatures to arrange to pay for them where they can.

If charters are eventually established as brick-and-mortar institutions, they are likely to become perpetual supplicants for ever-greater shares of public resources, and in direct competition for them with public schools.

Kentucky has never been a national leader when it comes to funding public education, and a new charter sector would not improve that situation. Should Kentucky send more public tax dollars to private charter businesses when it is already doing a lousy job of funding public schools?

Read the full op-ed here. 


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