Could Kentucky's charter school law be unconstitutional?

UK law professor Scott Bauries is right about the current legal climate, but remember, the climate at the time of the Rose case was hardly hospitable to judicial solutions - so much so that the Supreme Court ruling was shocking to legislators who had forgotten they were in charge of the schools. 

I'm also dubious about challenging charter schools based on funding. Maybe it has a shot, but I don't see the angle.

I am more aligned with Senator Neal who debated specific points from the Rose decision related to an efficient system of schools. Any ruling would have to be considered in light of the definition of an efficient system as detailed in the Rose decision.

This from the Courier-Journal: 

Charter schools are finally allowed in Kentucky, but legal experts and advocates say it's only a matter of time before the law permitting them is debated in court.

Kentucky's Republican-controlled legislature passed House Bill 520 last month, and Gov. Matt Bevin quickly signed it into law, championing charter schools as an innovative approach to helping at-risk children who are falling behind in class. Many Democrats, however, cautioned that charter schools will sap money and students from struggling public schools.

Todd Ziebarth of the National Alliance for Public Charter Schools, which was "intimately" involved in the effort to pass this kind of legislation in Kentucky, said pretending the state's existing education system is equal for all students is "baffling." But he expects the new law's detractors will go to court in hopes of having it declared unconstitutional.

"I would be stunned if they didn't challenge it," Ziebarth said. "I just see it as a desperate attempt by those who oppose charter schools to do anything possible to prevent them from coming to the state and serving kids."

But Democrat Ray Jones, a state senator and attorney from Pikeville, believes a constitutional challenge to Kentucky's charter school law has a shot at success. "And I would be more than happy to help challenge this," he told the Courier-Journal.

Rob Garda, a law professor at Loyola University New Orleans, said it's a "longshot" that Kentucky's charter school law will be declared unconstitutional.

Charter schools are new to Kentucky but not to the U.S., and more than 40 states permit them. Garda said only one case — a lawsuit in the state of Washington — has succeeded in getting a state supreme court to declare a charter school law entirely unconstitutional.

Even that 2015 ruling hasn't wiped out charter schools in Washington, Garda said. Instead, the legislature tweaked the way it funds those institutions, which also has been challenged in court.

Legal challenges to charter schools usually focus on how they are paid for, he said. A case in California in 1999 tried but failed to have charter schools deemed unconstitutional irrespective of their funding methods.

In New Orleans, charter schools took off after Hurricane Katrina struck in 2005, he said. The first five years or so were dominated by political debates over the concept, but the city's public school system is on track to eventually become comprised completely of charter schools.

"We are way past the argument of whether charter schools should exist," Garda said. "Once we did turn our attention away from 'How do we eliminate charter schools?' to 'How do we make this work?' it resulted in huge improvements."

During the Kentucky Senate's debate over the charter school law last month, Jones explained why he believes the measure could be found unconstitutional in the commonwealth.

In a massive 1989 decision, the Kentucky Supreme Court declared that education is a fundamental right under the state's constitution, Jones told his colleagues. That case, Rose v. Council for Better Education, led to major reforms after the court deemed the state's school system unconstitutional.

The Supreme Court ruled that the state legislature must adequately fund an efficient system of common schools throughout the commonwealth, Jones said. That's where he thinks charter schools could run into legal trouble.

"I do not believe that charter schools are permissible under Kentucky's constitution if it takes one penny away from our common schools that are already underfunded," he said. "It is unconscionable and immoral for us to leave any child in a school that is failing, and that is exactly what will happen if you create a system of charter schools in Kentucky."

Constitutional challenges to charter schools are tricky, said Scott Bauries, a University of Kentucky law professor. The Rose case dealt with widespread underfunding of the state education system, he said, and the precedent it set may not be strong enough to invalidate an experiment like charter schools that moves government money around but doesn't underfund the system as a whole.

"Charters have been such a big hot-button political issue in Kentucky for so long that it would be hard for me to believe that somebody wouldn't file a lawsuit to challenge that current legislation," Bauries said. "I think it's certain it will be challenged. I don't think it's likely the challenge will succeed."

The Rose ruling came down at a time when the commonwealth ranked dead last on many educational measures in the U.S., but since then Kentucky's lower courts seem to have "lost their taste for adjudicating school funding suits," he said.

"We're just not really in that kind of constitutional moment right now," he said. "And I doubt that the legislature is as receptive to a decision like that as they were in 1989."

Mendell Grinter graduated from the Jefferson County Public Schools district and went on to found the Tennessee-based Campaign for School Equity, which encouraged Kentucky lawmakers to pass the charter school law.

He disagreed with the argument that charter schools are unconstitutional in Kentucky and would make the education system unequal by taking money and students from traditional schools.

"A JCPS-authorized charter school is going to be a JCPS public school," he said. "I don't think that it is going to destroy the system."

At this point, Grinter said Kentuckians should focus on figuring out how to implement charter schools effectively.

JCPS board chairman Chris Brady said many districts are awaiting direction from the Kentucky Department of Education on what the next steps for charter schools will involve.

Brady questioned the idea that everyone should forget about taking legal action and focus on making the law work as well as it can. The "kumbaya moment" should have happened when the bill was being crafted, he said, but the people developing it didn't appear too interested in school boards' recommendations.

"It seemed that there was really not an open door for suggestions on this," he said. "I think that there are certainly some grounds to challenge the law. As to who will go forward with that, I don't know at this time."

Although he has concerns about Kentucky's charter school law, he said Jefferson County's school board hasn't had a collective discussion about the measure's legality.