Kentucky
In Kentucky, tax credit programs remain the best option for expanding educational choice. While the state constitution’s Blaine Amendment cannot be used to discriminate based on religion after Espinoza, its education articles limit the circumstances in which a publicly funded educational choice program can be enacted. Under Section 184 of the state constitution, any publicly funded program must be submitted to and approved by voters in a statewide election. Because of this unusual feature in the state constitution, while a publicly funded educational choice program could become law, the most straightforward way to bring educational choice to the Bluegrass State would be through a tax credit program.
Constitutional Provisions
Compelled Support Clause
“[N]or shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion .…” Kentucky Const. § 5.
Blaine Amendment
“No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.” Kentucky Const. § 189.
Education Articles
“No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation: Provided, The tax now imposed for educational purposes, and for the endowment and maintenance of the Agricultural and Mechanical College, shall remain until changed by law.” Kentucky Const. § 184.
“All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth, and for no other purpose, and the General Assembly shall by general law prescribe the manner of the distribution of the public school fund among the school districts and its use for public school purposes.” Kentucky Const. § 186.
Other Relevant Provisions
“Taxes shall be levied and collected for public purposes only and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax .…” Kentucky Const. § 171.
“Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town or municipal board or local legislative body, levying a tax, shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.” Kentucky Const. § 180.
Relevant Case Law
Ark Encounter, LLC v. Parkinson, 152 F. Supp. 3d 880 (E.D. Ky. 2016)
The Eastern District of Kentucky held that excluding a biblical amusement park from tourism tax dollars on the basis on their religious message violated the Free Speech Clause of the First Amendment. Since the program was generally open to all qualified applicants, the state violated the fundamental principle that state regulation of speech should be content-neutral.
University of the Cumberlands v. Pennybacker, 308 S.W.3d 668 (Ky. 2010)
The Kentucky Supreme Court held that an appropriation to found a pharmacy school at a religious university violated Section 189 of the Kentucky Constitution. The Court rejected the argument that the state could not rely upon Section 189 because it runs afoul of the federal Constitution, instead holding that Section 189 does not violate the First Amendment or the Equal Protection Clause. The Court also held that Section 189 was not a Blaine Amendment. Finally, the Court also invalidated as special legislation a scholarship program for pharmacy students who were to attend the new pharmacy school.
Neal v. Fiscal Court, Jefferson County, 986 S.W.2d 907 (Ky. 1999)
The Kentucky Supreme Court held that the Jefferson County Fiscal Court’s plan to allocate funds for the transportation of private elementary school students did not violate Kentucky’s Blaine Amendment. Distinguishing the earlier Fiscal Court of Jefferson County v. Brady decision, the Court noted that funds were paid to the transportation system administered by the board of education, not directly to individual schools, and benefits flowed “toward the safety and welfare of elementary age school children and not into the accounts of non-public schools.”
Fiscal Court of Jefferson County v. Brady, 885 S.W.2d 681 (Ky. 1994)
The Kentucky Supreme Court held that the Jefferson County Fiscal Court’s direct payment of county tax revenues to private schools for school transportation subsidies violated the Kentucky Blaine Amendment.
Fannin v. Williams, 655 S.W.2d 480 (Ky. 1983)
The Kentucky Supreme Court held that a Kentucky statute that provided state-supplied textbooks to children in private schools violated the Kentucky Blaine Amendment.
Butler v. United Cerebral Palsy of Northern Kentucky, Inc., 352 S.W.2d 203 (Ky. 1961)
The Kentucky Court of Appeals, which was then the state’s highest court, held that a statute authorizing public aid to private schools for exceptional children did not violate, among other constitutional provisions, Kentucky’s Blaine Amendment because the funds were for children’s “welfare” rather than “education.”
Rawlings v. Butler, 290 S.W.2d 801 (Ky. 1956)
The Kentucky Court of Appeals held that (1) a county school board’s rental of school buildings from a church, where the church did not attempt to influence or control the schools, did not violate the Kentucky Blaine Amendment; and (2) county fiscal courts may contribute tax funds to subsidize the transportation of private school students without violating the Kentucky Constitution, but may not use tax funds raised for public school purposes for the transportation of private school students.
Hodgkin v. Board for Louisville & Jefferson County Children’s Home, 242 S.W.2d 1008 (Ky. 1951)
The state’s highest court held that a shelter maintained by the city of Louisville and Jefferson County did not constitute a “common school” and was therefore not entitled to receive funds from the Common School Fund. However, the court specifically noted that nothing in the Kentucky Constitution prevented the state from funding such an institution through other sources of public money.
Sherrard v. Jefferson County Board of Education, 171 S.W.2d 963 (Ky. 1942)
The Kentucky Court of Appeals held that the portion of a Kentucky statute requiring that students attending private school be given the same transportation rights as students of public schools violated Kentucky’s Blaine Amendment.
Pollitt v. Lewis, 108 S.W.2d (Ky. 1937)
The Kentucky Court of Appeals held that a statute purporting to give a private junior college organization the power to levy property taxes without submitting the question to the electorate violated Section 184, one of the Kentucky Constitution’s education articles. The junior college was not a “public school” within the meaning of Section 184, and the statute contained no provision for submitting the proposed tax to the voters.
Williams v. Board of Trustees of Stanton Common School District, 191 S.W. 507 (Ky. 1917)
The Kentucky Court of Appeals ruled that an arrangement between a county board of education and a religious college, under which the college was paid tuition fees and building maintenance fees for the education of county high school students out of public school funds, violated Kentucky’s Blaine Amendment.
Opinion of the Attorney General 83-184 (Ky. AG 1983)
The Kentucky attorney general opined that parents of a disabled child are not entitled to reimbursement from a school district for the cost of a private school education until they demand and are refused accommodation by the local school district.
Opinion of the Attorney General 83-247 (Ky. AG 1982)
The Kentucky attorney general concluded that parochial school students could not ride on public school buses even when they, too, were being transported to the local public school: “[I]f school district money in any respect and in any amount is used to transport non-public school children the Kentucky Constitution would be violated.”
Existing Private School Choice Programs
Education Opportunity Account Program
K.R.S. §§ 141.500 through 141.528
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
