Op-Ed: Private School Tax Credit Program at odds with Kentucky’s constitution



The following editorial is written by Anna Baumann, Associate Director of the Kentucky Center for Economic Policy

The drafters of the Kentucky constitution made it clear the state’s responsibility to provide a system of common public schools across the Commonwealth. And in 1989, the Kentucky Supreme Court upheld this obligation and said that funding shortfalls at the time meant the state had “failed in its duty” to provide “appropriate and adequate education.”

The General Assembly followed the decision with a re-engagement for better funding and more than a decade of progress. But repeated budget cuts and funding freezes since 2008 have put the clock back.

In 2018, we surveyed superintendents and found that due to these funding cuts, 54% of respondents had reduced teaching time, 42% had reduced student supports like intervention and enrichment services and summer schools, 30% had eliminated course offerings and 14% had cutbacks in special education services, among other adverse effects.

This is the context in which some special interests are fighting in court to protect a program, put in place by House Bill 563, that takes money available for Kentucky public schools. It gives these resources instead to private schools despite the constitutional ban on public support to these schools. This week, arguments are being held in the Franklin Circuit Court in the Council for Better Education lawsuit challenging the constitutionality of HB 563.

Instead of giving handouts to some private schools, should we not restore funding to public schools? After all, research shows that state funding for things like smaller class sizes, increased teaching time, and other educational supports improves student outcomes in districts with fewer local resources. Yet we currently spend nearly $ 3,000 less per student on state and local resources in the poorest counties of Kentucky than in the rich countries.

The logic of HB 563 seems flawed, unless one realizes that its purpose is not to ensure access to high quality education for all children in Kentucky as required by the constitution, but to strengthen the resources available for private education in certain communities.

The Kentucky General Assembly of 2021 passed HB 563, establishing the richest state tax credit available, allowing private interests to divert money from the General Fund to institutions of private education at little or no cost to themselves. For giving to a granting organization of accounts (AGO), “donors” get back at least 95% of their contribution and are able to make a profit, receiving more than they give if they donate stocks whose value is appreciated. By comparison, Kentuckians who donate to veterans organizations, churches, animal shelters and other nonprofit institutions get a tax cut of up to 5% of the amount donated. if they detail the deductions on their taxes.

The AGOs distribute these misappropriated public funds to families for use for various educational purposes. In the state’s eight largest counties, which tend to be urban and wealthier, money can be spent on tuition and fees at private schools. In other counties, funds cannot go towards tuition, but can pay for private school expenses like uniforms, textbooks, programs, tutoring, after-school test preparation classes and middle School.

Unlike public schools which are mandated to serve all students in Kentucky, under the program put in place by HB 563, private entities can choose who they serve and who not. The state has chosen to exercise little control over AGOs and the service providers they work with. AGOs can define which services they cover and in which communities. Students in private schools do not have the same protections as students in public schools against discrimination based on disability, LGBTQ status, race, religion or learning English, for example.

Those fighting to protect HB 563 say it targets those in financial need the most, but the program’s eligibility threshold is so generous that 63% of Kentucky children are first-time eligible, and the resources are priorities for former beneficiaries even if their family income reaches 463% of poverty, meaning that a family of 4 with an annual income of $ 121,175 can receive funds.

Research on similar programs in other states shows that the wealthiest eligible families tend to benefit the most. This is because families with the means face fewer barriers to participation. Parents in rural communities with fewer educational alternatives, those with two or more jobs, who cannot afford private tuition fees not covered by the program, and who have limited internet access and to transport face more obstacles. Other states that have this type of program have also seen them expand, draining a growing amount of revenue from what is available for public schools, libraries, community health and other public services for everybody.

Taking more money out of the Kentucky public school system – a system that must serve all students despite declining state support – and giving it to private schools that can choose who to serve is far from constitutional of Kentucky. The best use of public resources to improve outcomes for students in underserved communities is to reinvest in our public schools and in exceptional students.

Anna Baumann is associate director of the Kentucky Center for Economic Policy.



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