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Kentucky’s Supreme Court unanimously struck down the state’s charter school law last month, dealing a major blow to school choice advocates. The ruling itself relies on the Kentucky Constitution’s unusually strong protections against misappropriation of public school funds, but it is also part of a recent wave of litigation related to school choice and the meaning of public education.
in Commonwealth vs. Better Education CouncilKentucky’s high court has ruled that public funds cannot be allocated outside the state’s “common school system” (the traditional public school system) without voter approval. The court concluded that charter schools do not qualify as regular schools under the state constitution because they can limit enrollment and are not accountable to local school districts.
“Even if you believe the public needs mules, you cannot sell mules to the people of Kentucky and call them horses,” the court said.
The opinion itself focused on a set of constitutional guarantees that were “unique to Kentucky” and rooted in the state’s 19th-century “theft landscape” in which public education funds were routinely diverted for other purposes. When Kentucky enacted its most recent constitution in 1891, it “deliberately ‘locked up’ K-12 funding” to thwart such shenanigans.
Notably, voters in 2024 rejected a constitutional amendment that would have unlocked funding and allowed state legislatures to provide education funding outside of the common school system. The court noted this development in its reasoning, suggesting that the rejected amendment “solidified the constitutional foundations of educational funding strictly reserved for the general school system.”
What is most interesting to me is how the Kentucky Constitution structures the protection of public school funding, requiring voter approval if the Legislature wants to allocate funds outside of regular schools. This is one of many examples in which state constitutions impose public checks on state legislatures, often reflecting concerns about self-dealing.
meanwhile council for better education While it highlights Kentucky’s unique history, it is also part of a new wave of education cases challenging various forms of school choice. These cases reflect major changes in education policy. “The lines between public and private schools, which used to be fairly clear, are being eroded at an accelerating rate,” said Aaron Seiger, a professor at Fordham Law School.
State lawsuits questioning the meaning of public education have had mixed results and not along predictable ideological lines. And in February, for example, the Idaho Supreme Court upheld the state’s school choice tax credit program, ruling that it did not violate the state constitution’s requirement that the Legislature establish a system of free public schools. The court concluded that a common school system is a constitutional minimum and does not preclude the provision of other options.
Meanwhile, in 2024, the South Carolina Supreme Court struck down the state’s education voucher law, ruling that it violated the state constitution’s prohibition on using public funds for the “direct benefit” of private educational institutions. The Wyoming Supreme Court also recently heard arguments about whether the trial court erred in halting the state’s school choice program, and the West Virginia Supreme Court is considering an appeal of the trial court’s ruling that the state constitution prohibits the establishment of charter schools without a vote of the county in which they operate.
At the heart of many of these cases is a fear that school choice will pull resources away from public schools, which many see as chronically underfunded. In Kentucky, for example, another pending lawsuit alleges that the state fails to provide students with an “adequate and fair” public education. Changes in federal law, such as the creation of a federal tax credit program for private school tuition, could change the situation further. The Kentucky General Assembly is currently considering a new school choice bill that would allow the state to choose this federal funding.
It is not always comfortable for courts to be so closely involved in issues of education policy. But in reality, state constitutions say a lot about education, creating both positive rights and structural limitations that constrain state legislatures. At the heart of recent school choice cases are questions about what public education actually means. Keep an eye on the ongoing dialogue and conflict between courts, state legislatures, and voters about how states should answer that fundamental question.
Alicia Bannon is the editor-in-chief state court report. She is also the director of justice programs at the Brennan Center for Justice.
Recommended quote: Alicia Bannon State courts interpret the meaning of public educationSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (March 5, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-courts-interpret-meaning-public-education
