Kentucky has one of the nation’s strongest constitutions when it comes to public education. But Amendment 2, on the ballot next month, threatens to upend that. Currently, the state constitution guarantees all Kentucky children the right to an adequate and equitable public education while also ensuring that tax dollars are devoted to public schools. Amendment 2 would break those commitments to allow public money to be spent on private schools.
Amendment 2 is on the ballot because of Kentucky’s recent failed attempt at a private school voucher program. That interest, along with the recent experience in other states, suggests what will likely follow if the amendment passes — the legislature will divert money from public schools and send it to private schools. The language is written in a way that puts no guardrails on a private school voucher program. And it has additional implications because of how the amendment allows lawmakers to disregard seven key sections of the constitution in their efforts to fund education outside of our system of public schools. The possibilities are far-reaching and constitutional amendments have permanent, long-term consequences. It is important that Kentucky voters understand what those could be when deciding how to vote.
The amendment’s language does not provide voters with enough information to know what they are voting on
The proposed constitutional amendment reads as follows:
The General Assembly may provide financial support for the education of students outside the system of common schools. The General Assembly may exercise this authority by law, Sections 59, 60, 171, 183, 184, 186, and 189 of this Constitution notwithstanding.
The first sentence is clear – Amendment 2 would allow the General Assembly to spend public tax dollars on education outside of public schools, also called common schools. This sentence is what the debate on Amendment 2 has been about so far, and we should expect to see significant harm to our system of public schools as education dollars are diverted away from them if Amendment 2 passes.
But what about the second sentence? What does it mean that seven sections of the Kentucky Constitution are “notwithstood” when the General Assembly exercises its authority to spend public money for private purposes? How much broader is the authority granted to the General Assembly because the protections included in the enumerated sections of the Constitution will not apply?
It is impossible for Kentucky voters to answer these questions or even guess what additional authorities the General Assembly might have because of this language without knowing what protections these sections have previously provided.
Private school vouchers are just the beginning of Amendment 2’s potential harms
To help understand the far-reaching consequences if Amendment 2 passes, here are just three examples of what could happen:
The entire basis on which our education system operates could be undermined
Amendment 2 notwithstands Section 183 of the constitution, which provides that: “The General Assembly shall by appropriate legislation, provide for an efficient system of common schools throughout the state.”
This section was the basis of the state Supreme Court finding the entire system of education unconstitutional in 1989 in the Rose decision. The ramifications of that section no longer applying to education spending are monumental and extend the latitude granted to the General Assembly far beyond providing for vouchers.
- Would the requirement that education be funded throughout the state still apply, or could education spending be concentrated in just a few geographic areas?
- Would equality in spending still be required, or could the General Assembly choose to provide less or more funding in some areas to support political goals or exact punishment on schools or districts they didn’t like?
- Could the entire public system as we know it be abolished in favor of private schools?
These questions are far beyond the scope of any policy discussions that will immediately follow the amendment’s passage. But changes to the constitution will last far longer than the term of any of today’s lawmakers. Removing the protections provided by Section 183 would allow Frankfort politicians to make potentially drastic and unforeseen changes many years into the future.
Direct funding for religious schools
Another constitutional provision that will not apply to the expenditure of public funds is section 189, which provides as follows: “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.”
Notwithstanding this language would allow the General Assembly to directly fund religious schools with tax dollars that could include vouchers for school attendance but perhaps other funding purposes as well, including construction of religious schools, as is happening now in Ohio, transportation, or any number of other expenses not currently permitted under the constitution.
The ability to enact legislation for specific schools, counties, districts, education providers, or other purposes
Section 59, which is also notwithstood by Amendment 2, lists specific subjects for which the General Assembly cannot enact legislation pertaining to a particular “individual object, or location”. The intent of this section is to prevent special favoritism or harm to particular localities or interests. Included among the subjects listed is, “To provide for the management of common schools.”
Excepting this provision would allow the General Assembly to, among other things:
- Establish restrictions or requirements that apply to only one school district or school.
- Create different standards and requirements for school boards located in different areas of the state.
- Require the management of one school or school district be turned over to a private entity, including a for-profit entity.
- Establish different academic standards or requirements for schools or school districts depending on location or any other metric the General Assembly might determine.
As a recent example of how Section 59 applies, in 2022, the General Assembly passed an omnibus education bill that included provisions that applied only to Jefferson County Public Schools, limiting the authority of the school board in favor of the superintendent. The school board sued, and in an unpublished opinion (Cameron v. Jefferson County Board of Education, No. 2022-CA-06-964-MR, October 6, 2023), the Kentucky Court of Appeals held that provisions that applied only to Jefferson County Public Schools violated Section 59 of the constitution. If Amendment 2 were to pass, the General Assembly could enact special legislation that applies to any school or school district, and the provisions of Section 59 would no longer provide this type of protection.
A yes vote in November will upend Kentucky’s constitutional commitment to public education
Kentucky’s founding promise of public education as a right, and its constitutional commitment to state responsibility for funding an “efficient system of common schools” throughout Kentucky, is one of the commonwealth’s proudest accomplishments. Amendment 2 would completely overturn this longstanding commitment and lead to policies that will weaken our education system and widen disparities across the commonwealth.
The inarguable intent of Amendment 2 is to divert public dollars to private schools through voucher programs. The expansive and obscure language included in the second sentence of Amendment 2 would give Frankfort politicians broad authority to undermine our current system of public schools in other far-reaching ways as well. Without the strong constitutional provisions that protect these fundamental rights, there would be nothing to stop them. Those who wish to improve education in Kentucky should re-commit to the current language of our constitution, not support efforts to erase it.
