Kentucky’s Proposed Amendment 2: Bad for Students, Bad for Taxpayers, Bad for Kentucky

Blog Post | 113 KY. L. J. ONLINE | September 3, 2024

Kentucky’s Proposed Amendment 2: Bad for Students, Bad for Taxpayers, Bad for Kentucky

By: Emma Collins, Staff Editor, Vol. 113 

On the ballot of every voting Kentuckian this November will be a proposed constitutional amendment asking if the voter is in favor of allowing the Kentucky General Assembly to allocate educational funds to students attending a non-public school in the Commonwealth of Kentucky.[1] As it stands, the Kentucky Constitution has seven separate sections that specify only public schools should be funded by public dollars,[2] meaning lawmakers need the approval of the public to amend the Constitution before enacting this change.[3] The practical effect of the ratification of Amendment 2 would be the General Assembly “[subsidizing] private schools using public funds” through a system of vouchers that parents can use on a private education.[4]

This proposed amendment is a culmination of multiple attempts by the General Assembly to implement public funding mechanisms to benefit private schools. After the contentious legalization of charter schools in 2017,[5] the General Assembly unsuccessfully passed legislation aimed at “[assisting] families that want to send their children to private or charter schools[.]”[6] The Kentucky Supreme Court unanimously rejected the legislation unconstitutional, however.[7] Instead of abiding by the guidance of the Supreme Court, the General Assembly has chosen to place the issue on the ballot as a constitutional amendment, a legal and valid way around being struck down by the Commonwealth’s highest court.[8]  

Accepting this system of constitutional amendment as democratic, Kentucky’s educational infrastructure is nevertheless unable to support such a change. The General Assembly “‘did not include accompanying legislation showing how [it] plans to implement the amendment’” and the Amendment’s proponents have shown reluctance to elaborate.[9] Thus, interested Kentuckians must compare what other states have done in implementing legislation to allow public funds to support private schools to understand how this constitutional amendment would manifest in the Commonwealth.[10]

The Kentucky Center for Economic Policy transposed other states recently enacted voucher systems onto the education landscape in Kentucky and found that “reduced state contributions to public school budgets are the expected source of funding for private school vouchers in Kentucky” as well as finding that establishing a program like that of Florida (the biggest state program, proportioned to match Kentucky) “would cost $1.19 billion annually from the Kentucky state budget.”[11] 

Currently, the public education system in the Commonwealth is troubling. In 2023, the National Rural Education Foundation “flagged Kentucky’s educational outcomes as ‘urgent’ and linked to poverty, lack of internet access and other resources, and school funding.”[12] The Kentucky Office of Education Accountability found that from 2014 to 2023, “teacher turnover increased at the school, district, and state level.”[13] In the same report, multiple recommendations were given to the General Assembly for how to improve the landscape of education in Kentucky. One such recommendation, from a quarter of Kentucky’s superintendents, suggested that staffing shortages could be alleviated through increased funding.[14]

Yet, the hypothetical 1.19 billion dollars for the proposed voucher program would not be spent on improving the educational scheme of those young Kentuckians who need it most. “Expanded vouchers primarily subsidize families already in private schools and benefit those who least need the help.”[15] Those families who already send their children to private school will continue to do so under a voucher program while “lower income families may be less aware of voucher programs and are [more likely] to face barriers to get to private schools”.[16]

The crux of the issue is that Kentucky is not ready for a voucher program due to the instability of the underlying education scheme of the Commonwealth. Voucher programs have potential to be rewarding and beneficial programs to their respective regions, and that potential is not to be discouraged.[17] But, in the current climate of the Commonwealth, voucher programs would simply add to the numerous problems plaguing public schools and the children who these schools exist to service. If the Kentucky General Assembly wants to allow voucher programs, or similar programs involving the dispersion of state funds to private schools, legislators should act on their fiduciary duty of loyalty to their constituents[18] and address the ever present and inevitable issues within the public school system before considering such a drastic change as Amendment 2.

[1] See H.B. 24, Gen. Assemb. Reg. Sess. (Ky. 2024) (authorizing the proposal).

[2] John Gregory, Kentucky’s Constitutional Amendment on School Choice, KET, https://ket.org/program/kentucky-tonight/kentuckys-constitutional-amendment-on-school-choice/ (last visited August 18, 2024); See K.Y. Const. §§ 59, 60, 171, 183, 184, 186, 189.

[3] See Ky. Const. § 256 (authorizing the General Assembly to present constitutional amendments to voters for ratification).

[4] Jason Bailey, Dustin Pugel, Joanna LeFebvre & Pam Thomas, The Impact of Diverting Public Money to Private School Vouchers in Kentucky, KyPolicy: Kentucky Center for Economic Policy 1 (July 15, 2024), https://kypolicy.org/wp-content/uploads/2024/07/Amendment-2-Report-final-2.pdf.

[5] KY. Legislature Overrides Veto of Bill That Creates a Permanent Funding System for Charter Schools, Lex18 (Apr. 14, 2022, 1:11 PM). https://www.lex18.com/news/covering-kentucky/ky-legislature-overrides-veto-of-bill-that-creates-a-permanent-funding-system-for-charter-schools.

[6] Gregory, supra note 2.

[7] See Commonwealth ex rel. Cameron v. Johnson, 658 S.W.3d 25, 29 (Ky. 2022) (declaring H.B. 563 unconstitutional).

[8] See Ky. Const. § 256 (authorizing the General Assembly to present constitutional amendments to voters for ratification).

[9] McKenna Horsley, Public School Funding at Risk If Kentuckians Approve Amendment 2, New Study Says, Ky. Lantern (July 15, 2024, 5:23 PM), https://kentuckylantern.com/2024/07/15/ public-school-funding-at-risk-if-kentuckians-approve-amendment-2-new-study-says/.

[10] Id.

[11] Bailey et al., supra note 4 at 1.

[12] Nadia Ramlagan, Kentucky’s Appalachian Teachers Say “Intense” Challenges Lie Ahead for Education in the Region, Northern Kentucky Tribune https://nkytribune.com/2024/01/kentuckys-appalachian-teachers-say-intense-challenges-lie-ahead-for-education-in-the region/#:~:text=%2C%E2%80%9D%20Blom%20outlined.-,The%20National%20Rural%20Education%20Foundation%20flagged%20Kentucky's%20educational%20outcomes%20as,other%20resources%2C%20and%20school%20funding (last visited August 18, 2024).

[13] Sabrina J. Cummins, Allison M. Stevens, Albert Alexander, Deborah Nelson, Christopher Riley, Bart Liguori & Marcia Ford Seiler, Kentucky Public School Employee Staffing Shortages, Legislative Research Commission 12 (Nov. 1, 2023) https://apps.legislature.ky.gov/CommitteeDocuments/117/26654/01Nov2023%20-%203%20-%20OEA%20Staffing%20Shortages.pdf.

[14] Id. at 59.

[15] Bailey et al., supra note 4 at 3.

[16] Id. at 4.

[17] See Dennis Epple, Richard E. Romano & Miguel Urquiola, School Vouchers: A Survey of the Economic Literature, 55 J. Econ. Literature 441, 485 (2017).

[18] See D. Theodore Rave, Politicians as Fiduciaries, 126 Harv. L. Rev. 671, 707 (2013) (explaining the fiduciary duties politicians owe to their constituents).