Institute for Justice · October 8, 2021

Frankfort, Ky.—Today, the Franklin County Circuit Court ruled that Kentucky’s bold Education Opportunity Account Program, enacted in 2021 to give thousands of low- and middle-income families in Kentucky greater educational choice, is unconstitutional under Sections 59 and 184 of the Kentucky Constitution. Akia McNeary and Nancy Deaton, two parents who planned to use the program, intervened to defend the program from a constitutional challenge levied against it in May. They have vowed to appeal this ruling and are represented by the Institute for Justice (IJ), the nation’s leading advocate for school choice.

“Today’s ruling treats private donations as if they are government money,” said IJ Attorney Joshua House. “It holds that when private individuals donate their own money to education-related causes, and receive tax credits for those donations, it is in effect the government raising and spending money on education. That’s just wrong.”

Until this year, Kentucky was among a minority of states without an educational choice program. But with the EOA Program, low- and middle-income families are eligible for funding for educational uses, which will come from voluntary donor contributions rather than public funds. The Department of Revenue was accepting applications for Account-Granting Organizations (AGO), which would in turn accept donations to fund EOAs for families.

Under the EOA Program, Kentucky parents would be able to spend their EOA funds to best fit their children’s needs, including for private school tuition, tutoring services, online programs and more—until the court’s ruling.

I’m upset. I don’t feel it’s fair that kids are forced to go to schools that don’t fit their needs. Not all schools work for all children.

Akia McNeary

The lawsuit against the program was filed in June by the Council for Better Education (CBE), a group representing Kentucky public school districts. The lawsuit’s arguments echo arguments made in many other unsuccessful legal challenges to school choice programs throughout the country that IJ anticipates will also ultimately fail in Kentucky.

“The Kentucky Constitution has no provisions that prevent the Commonwealth from providing tax credits to support giving families alternatives to the public school system,” said IJ Attorney Ben Field. “We look forward to vindicating this fact on appeal and ultimately at the Kentucky Supreme Court.”

The Institute for Justice, the nation’s leading legal advocate for educational choice, is currently defending choice programs in Tennessee and North Carolina and is challenging the exclusion of religious schools from Maine’s, New Hampshire’s and Vermont’s town tuitioning programs. IJ has won three times at the U.S. Supreme Court for educational choice on behalf of parents in defense of Cleveland, Ohio’s, Arizona’s and Montana’s educational choice programs.