Supporters of school choice in Kentucky are hoping voters will do what the state courts wouldn’t — allow a new path for state-supported payments to private schools.

Kentucky is one of three states, along with Colorado and Nebraska, with school choice questions on the ballot this fall. Voters will be asked to decide whether public money should go to support private education. Opponents say the measures would undermine public schools by shifting money from them, while backers maintain that state aid would give parents more control over their kids’ education.

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The measures come as school choice gains momentum across the country. Thirty-three states plus Washington, D.C., and Puerto Rico already have at least one kind of school choice program, according to EdChoice, a nonprofit that advocates for the programs. They range from education savings accounts sponsored by the state to voucher programs to various types of tax credits that help provide scholarships or cover educational expenses for private schools.

But the measures have sparked some controversy. In Arizona, which in 2023 became the first state to make all students, regardless of family income, eligible for a school voucher, parents have tried to use the voucher money for dune buggies and expensive Lego sets.

Teachers unions and other public school professionals generally oppose the school choice plans, while many conservative politicians, religious institutions and private educational groups are in favor, along with some people of color in districts with underperforming public schools.

The choice programs have had difficulty gaining traction in rural areas, where there are fewer private schools than in cities and suburbs.

To overcome that resistance in Texas, Republican Gov. Greg Abbott has worked hard to elect like-minded allies to the state’s legislature. He led a multimillion-dollar political offensive that resulted in six Republican House members who opposed his school choice initiative being defeated in primaries this year. Stateline reported earlier this year that Abbott is within a couple of votes of being able to enact a school choice program when the legislature reconvenes in January.

Ballot measures

In Kentucky, the Republican-dominated legislature approved a program in 2021 to give tax credits to individuals or businesses for donations to nonprofits that provide scholarships for students who attend private schools.

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Lawmakers narrowly overrode Democratic Gov. Andy Beshear’s veto of the measure. But the state’s Supreme Court ruled the plan unconstitutional in December 2022.

And last year, a circuit court judge struck down a 2022 Kentucky law that would have allowed public funding of charter schools. Kentucky currently has no operating charter schools. Such schools are publicly funded but run by outside organizations that operate them autonomously, without many of the rules governing traditional public schools.

Now, advocates want Kentucky voters to approve Amendment 2, which would change the state Constitution to ?allow the tax credits and public funding of charter and private schools.

The proposed constitutional amendment would give the legislature authority to pass laws providing state funding for the education of students outside the public school system. It says lawmakers could do so despite the parts of the Kentucky Constitution that forbid state funds to be used for “any church, sectarian or denominational school.”

The ballot measure would give the legislature the authority to pass laws similar to the ones that were thrown out, according to Republican state Sen. Damon Thayer, a strong supporter of the referendum.

“We passed [private education] scholarships in the past,” Thayer said in a phone interview. “Those would be on the table in the near future if the amendment is passed.”

He said it would give parents “the ability to send a child to a different school if the public school isn’t giving them what they need, private or parochial.”

But a coalition of public education advocates formed the group Protect Our Schools KY to oppose the amendment. Tom Shelton, a retired Kentucky school superintendent and a leader in the campaign effort, said it is a travesty to send public money “to unaccountable private schools” when public schools in the state could use the funds.

He said rural areas would fare particularly poorly under a proposal that would allow public money to go to private educational entities. Shelton said the vast majority of the private schools in Kentucky are in the two biggest cities of Louisville and Lexington — meaning that rural public schools would lose money diverted to private schools and that rural students would be less able to take advantage of the change.

“Who’s going to lose most? The rural poor kids,” Shelton said.

In some cases, private schools have raised tuition in states with school choice. And The Wall Street Journal has reported that vouchers tend to mostly benefit families who already have students in private schools.

In Nebraska, voters will choose whether to partially repeal a law enacted this year that allows the state to run a $10 million educational scholarship program for private school students.

The state’s highest court determined in September that the referendum can stay on the ballot.

State Sen. Dave Murman, a proponent of school choice who identifies as a Republican in the nonpartisan Nebraska legislature, said he’s disappointed that the referendum was allowed to proceed.

Murman said he expects the referendum vote to be close.

He postulated that public schools are “afraid of the competition. They are afraid they will lose students to private schools.” But he said he hopes public schools will improve in the face of competition.

But Tim Royers, president of the Nebraska State Education Association, which supports the referendum, said there is already competition among public schools.

“In 1989, Nebraska created ‘option enrollment’ that allows any family to attend any public school in the state as long as they are not at capacity,” he told Stateline.

He said the teachers union could have fought the law directly in the courts, but thought it would be better to put it on the ballot and let the voters decide. Teachers think parents and students are happy with the public school choices they have now, he said.

In Colorado, the ballot measure would enshrine a school choice option in the state constitution. It would add language saying that each “K-12 child has the right to school choice” and that “parents have the right to direct the education of their children.” School choice would explicitly include neighborhood schools, charter schools, private schools, homeschools, open enrollment options and future innovations in education.

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Conservative advocacy group Advance Colorado proposed?the amendment. Colorado already allows students to attend any public school — even outside their district — for free and has long had charter schools. Critics of the ballot measure say it would open the door to private school vouchers, though backers argue that’s not their intent and that it’s simply meant to protect charter schools. Some Colorado Democrats last year proposed tightening requirements on charter schools.

Ongoing disputes

States with existing school choice programs have encountered pushback this year.

The South Carolina Supreme Court last month threw out the state’s voucher program, leaving parents who already have received funds scrambling. State education officials and Republican Gov. Henry McMaster asked the court to reconsider the ruling, but the high court refused to rehear the case in early October, likely ending any possibility of resuming private tuition payments this year.

In Arizona, reports of misuse of funds to buy equipment not directly tied to a curriculum prompted the state attorney general to open an investigation. The state’s Empowerment Scholarship Account program allows parents to use state money for various educational costs, including tuition and school supplies.

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But after the school system clarified documentation requirements that purchases be tied to a curriculum, the Goldwater Institute, a conservative Arizona think tank, sued the state Department of Education over the requirements, on behalf of some homeschool parents. The institute called the verification requirements an “absurd new burden” on homeschooling parents that would prevent them from buying pencils, flash cards and other equipment not specifically called for in homeschool curricula.

The Grand Canyon Institute, a centrist think tank focused on economics, found in a report last month that Arizona’s voucher accounts had $360 million unspent by parents as of June.

“These parents have chosen not to spend the money on their children’s education,” Dave Wells, research director for the institute, said in a phone interview. “There’s no follow-up to see if the kids are doing well.”

The institute recommended that the state follow up on the money to see whether and where it is being spent.

Responding to the report, education department spokesperson Doug Nick told Arizona radio station KJZZ that the department administers the program as directed under state law.

“If the legislature makes changes to the law, we will comply with those changes,” he said.

This story is republished from Stateline, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.