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Ky. Supreme Court to hear arguments in private school scholarship lawsuit this week

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The Kentucky Supreme Court will hear oral arguments this week in a case that will decide whether the state can move forward with a $125 million program sending would-be tax dollars to private K-12 schools.

Lawyers will present their arguments Wednesday for and against the Education Opportunity Account (EOA) program. The EOA program allows individuals and corporations to donate to a scholarship fund in return for a tax credit of up to 97% of their donation. Low- and middle-income families can apply to use the funds for educational expenses. In the state’s eight most populous counties, approved families can use the funds for private school tuition.

State lawmakers passed the controversial program by slim margins in the 2021 legislative session. Proponents of K-12 school privatization hailed the EOA as a victory. They argue EOAs will allow some lower-income families access to private-school education that usually only wealthy families can afford.

Opponents say the program will drain money from cash-strapped public schools and send public funds to private institutions with little accountability. The program is capped at $25 million per year for five years.

Franklin County Circuit Court Judge Phillip Shepherd sided with opponents and ruled the EOA program violates a provision in the state constitution, which he says prevents tax dollars from going to non-public schools. He also decided the EOA program is illegal because it applies unequally across the state: Key provisions only apply to counties with more than 90,000 people, according to the 2010 U.S. Census.

Advocates of the EOA program appealed, aided by lawyers from the Institute for Justice (IJ), an Arlington-based libertarian think tank. IJ has won several landmark court cases upholding the legality of state support for private schools.

Lawyers for the state and IJ argue the funds are not technically tax dollars, because they never enter state coffers. They say the program is no different than other tax credits. They also claim the state constitution allows lawmakers to create legislation that applies to certain “classes” of jurisdictions, including classes based on population size.

The seven-member court will hear arguments Wednesday at 1 p.m. at the Shelbyville Conference and Welcome Center.

Arguments will be streamed live at this link: https://www.ket.org/ky-supreme-court/.

Jess Clark is WWNO's Education Desk reporter. Jess comes to the station after two years as Fletcher Fellow for Education Policy Reporting for North Carolina Public Radio - WUNC (Chapel Hill). Her reporting has aired on national programs, including NPR's All Things Considered, Here & Now from WBUR, and NPR's Weekend Edition.
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