Parents Deserve Opportunity to Decide What’s Best for Their Own Kids
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pIn the legal battle over educational options for needy students, it’s emdéjà vu/em all over again./p
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pKentucky’s Council for Better Education has filed anbsp;lawsuit challenging the commonwealth’s landmark Education Opportunity Accounts (EOAs) that will deliver school choice to thousands of Kentucky parents. Unfortunately for the council, the lawsuit reads as if legislators and courts somehow haven’t been grappling with the details of these kinds of laws for more than anbsp;decade./p
pTo be clear, the core complaint in the council’s lawsuit has already been directly addressed by the U.S. Supreme Court in very similar cases, and we suspect the council knows the court didn’t go their way./p
pHere’s the background. Kentucky lawmakers this year created Education Opportunity Accounts for low‐to‐middle‐income parents that will benefit Kentucky’s most populous counties. EOAs will allow parents to apply for scholarship funds to support anbsp;wide range of educational options for their kids./p
pPrivate donors will fund account granting organizations, which will in turn direct funds to the educational choices of parents. The donors will receive anbsp;tax credit for their donation./p
pThe tax credit has become the sticking point where opponents of school choice have focused their rhetorical and now legal firepower./p
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pHow can we say with such confidence that, as anbsp;legal matter, the council’s claims are so baseless? Because, and this may come as anbsp;surprise to the council, the U.S. Supreme Court has already said as much./p
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pBackers of Kentucky’s educational status quo have repeatedly and, as anbsp;legal/constitutional matter, falsely claimed that these private donations to private groups are somehow — choose your favorite term — public funds, state revenues, government expenditures, or tax dollars./p
pHere are some of the false claims made in the council’s lawsuit:/p
ulliThe new school choice law “redirects state revenues to fund, among other things, private school tuition and expenses …”/li
liThe new school choice law means “state expenditures will impermissibly fund private schools …”/li
liThe new school choice law engages in a “diversion of public revenues to private schools.”/li
/ulpMany of the council’s other complaints rest gingerly upon this core claim, that money given from one private party to another private party, even though the money never touches the public treasury, can be transformed magically into state revenue./p
pHow can we say with such confidence that, as anbsp;legal matter, the council’s claims are so baseless? Because, and this may come as anbsp;surprise to the council, the U.S. Supreme Court has already said as much./p
pA decade ago, when anbsp;handful of Arizona taxpayers claimed that anbsp;strikingly similar tax‐credit scholarship school choice program was unconstitutional, their core arguments rested on exactly the same idea, that dollars not given to the state are somehow still property of the state./p
pIn tossing out the taxpayers’ claims, Justice Anthony Kennedy wrote for the majority that the notion that funds emnot/em paid in taxes are nonetheless public funds “assumes that all income is government property, even if it has not come into the tax collector’s hands. That premise finds no basis in standing jurisprudence.”/p
pIt doesn’t take much to understand why Kennedy’s analysis matters critically. If money not given to the state is still state money, then there would be effectively no limit on the ways in which the state could restrict, direct, and regulate all of our incomes for whatever purpose it wished. If that standard were applied to other tax credits and deductions, every church and every other charitable nonprofit in America could suddenly find itself “state funded.” It’s hard to imagine anbsp;greater expansion of government power./p
pIn this context, the difference between anbsp;tax‐credit program to encourage private support for education and anbsp;state‐run voucher program couldn’t be more important as anbsp;constitutional matter. Nonetheless, the Council for Better Education demonstrates with its complaint that it doesn’t understand or appreciate the difference between vouchers and tax credits, referring throughout its filing to Education Opportunity Accounts as “The Voucher Program.” The difference, of course, matters enormously for Kentucky students./p
pIt should make sense to all of us that Kentucky parents would prefer for their kids not to be trapped in public schools where fewer than ten percent of students are proficient in basic subjects. Opponents claim that school choice damages public schools. The record clearly shows that when school choice arrives, the bureaucracies get anbsp;wake‐up call, and the schools they run tend to improve markedly./p
pLet’s hope that Kentucky’s Supreme Court, like Kennedy anbsp;decade ago, is able to see that school choice directed by parents and private donors poses no constitutional quandary, and parents deserve this opportunity to decide what’s best for their own kids./p
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