Blog Post | 114 KY. L. J. ONLINE | September 26, 2025
The Eight-Year War: The Fate of Charter Schools in the Hands of Seven
By: Will Smiley, Staff Editor, Vol. 114
On March 15, 2017, the Kentucky General Assembly passed House Bill 520 which established charter schools in the Commonwealth.[1] Charter schools are independent public schools which operate outside the public school system; many are publicly funded but removed from state and local board requirements.[2] Other 2017 legislation provided temporary funding provisions for charter schools.[3] In an article from March, 2017, the Kentucky Center for Economic Policy called the funding legislation “unclear and concerning,” highlighting major policy concerns.[4] Nevertheless, charter schools have remained legal in Kentucky since 2017; however, none are operational because the original funding attempts proved ineffective.[5] In 2022, the General Assembly sought to remedy the funding concerns with House Bill 9.[6]
House Bill 9 allowed public money to go to charter schools across the Commonwealth.[7] The major change included a set aside program where state and local tax dollars would follow the student between a traditional public school to a charter school.[8] Kentucky State Senator Steve West called the legislation “a step toward delivering real education” and said charter schools “often serve higher proportions of low-income students and students of color than traditional public schools.”[9] Critics are not as optimistic: former Education Commissioner Jason Glass commented that House Bill 9 “creates new constitutional questions . . . that ultimately will have to be resolved by the courts.”[10] He was right. Currently, the fate of charter school funding lays in the hands of the Kentucky Supreme Court.[11]
The pending litigation began in 2023, when the Council for Better Education and a group of school administrators and local school boards sued the Commonwealth of Kentucky and the Attorney General in Franklin County Circuit Court claiming the bill was unconstitutional.[12] Franklin Circuit Court Judge Phillip Shepherd held the bill unconstitutional under Sections 183, 184, and 186 of the Kentucky Constitution.[13] This left the bill permanently enjoined, thus halting any operation across the Commonwealth.[14] The crux of Judge Shepherd’s order held that charter schools are private entities and do not meet the requirements to be considered common schools.[15]
The Kentucky Attorney General appealed Judge Shepherd’s order, arguing that Judge Shepherd misapplied Rose v. Council for Better Educ., Inc.[16] Rose is a seminal case which affirmed education as a fundamental right in Kentucky, and delegated responsibility to the General Assembly to establish an efficient system of common schools.[17] This dispute requires the Kentucky Supreme Court to evaluate this precedent and apply it to the General Assembly’s recent legislation.
Kentucky Solicitor General Matt Kuhn argued that Judge Shepherd’s ruling was an overly restrictive interpretation of Rose, and that the Kentucky Supreme Court ultimately determines “what is an efficient system of common school.”[18] Solicitor General Kuhn added that under Rose the “General Assembly gets to decide [what is an efficient system of common schools, and] that it has discretion . . . this is the General Assembly saying Court you told us this in Rose and we’re taking this seriously.”[19] In other words, it is the General Assembly’s duty to design an efficient common school system—and that is what they did here. The Council for Better Education argued that it is well-established law that common schools must be “controlled by elected officials within a school district,” which under the current scheme—charter schools would not be.[20] The Kentucky Board of Education focused on accountability—arguing that charter schools are outside the Board’s regulatory scheme.[21]
The Court is now forced to reckon with several questions. Is it necessary that charter schools must be controlled by elected officials? If so, should the Court change that? Has the General Assembly developed an efficient system of common schools? How should the Court view the recently failed constitutional amendment? What about the 45 other states that have similar legislation? What kind of involvement should parents have in education? It’s unlikely that the Court will answer many—if any—of these questions. But one thing for certain, the Court will decide the fate of charter schools in Kentucky. Critics, supporters, lawmakers, parents, and students now anxiously await the end of the eight-year war.
[1] Tracy Goff Herman, Public Education Sees Significant Changes During 2017 Regular Session, K.Y. Teacher (Apr. 25, 2017), https://www.kentuckyteacher.org/features/2017/04/public-education-sees-significant-changes-during-2017-regular-session/#:~:text=The%20other%20big%20change%20to,amended%20the%20current%20state%20budget.
[2] Alexandra Goldberg, Kentucky’s Highest Court Hears Case on Funding Charter Schools, WHAS 11 ABC (Sep. 11, 2025, 6:16 PM), https://www.whas11.com/article/news/education/kentucky-charter-school-funding-bill-supreme-court-decision/417-71e29648-2498-46ea-9ed7-13a4fd8503c7.
[3] Herman, supra note 1.
[4] Pam Thomas, Charter School Legislation Passes, But Questions and Concerns Remain About Funding, KY Policy (Mar. 17, 2017), https://kypolicy.org/charter-school-legislation-passes-questions-concerns-remain-funding/#:~:text=Charter%20School%20Legislation%20Passes%2C%20But%20Questions%20and%20Concerns%20Remain%20About%20Funding,-Pam%20Thomas%20%7C%20March&text=The%20Kentucky%20General%20Assembly%20gave,our%20state's%20existing%20public%20schools.
[5] Valarie Honeycutt Spears, Kentucky Supreme Court to Hear Arguments on Constitutionality of Charter School Funding, Lexington Herald Leader (Aug. 25, 2025, 2:36 PM), https://www.kentucky.com/news/local/education/article311838299.html.
[6] Bruce Schreiner, Disputed Charter School Funding Measure Gets a Pivotal Hearing Before the Kentucky Supreme Court, ABC News (Sep. 11, 2025, 4:52 PM), https://abcnews.go.com/US/wireStory/disputed-charter-school-funding-measure-gets-pivotal-hearing-125492249#:~:text=Charter%20schools%20are%20operated%20by,open%20meetings%20laws%2C%20Kuhn%20said.
[7] Karolina Buczek, Kentucky Supreme Court Weighs Whether Charter Schools Can Receive Taxpayer Funding, LEX 18 (Sep. 11, 2025, 7:46 PM), https://www.lex18.com/news/covering-kentucky/kentucky-supreme-court-weighs-whether-charter-schools-can-receive-taxpayer-funding#:~:text=The%20case%20centers%20on%202022's,only%20go%20to%20public%20schools.
[8] Olivia Krauth, Kentucky Lawmakers Give Final Approval to Charter School Funding. Here’s What Happens Next, Courier J. (Mar. 30, 2022, 4:53 AM), https://www.courier-journal.com/story/news/politics/ky-general-assembly/2022/03/29/charter-school-funding-bill-passes-heads-gov-andy-beshear-kentucky/7208605001/.
[9] Steve West, Steve West: Charter Schools Are a Constitutional Obligation Kentucky Must Meet for Students, Families, NKY Tribune (Sep. 9, 2025), https://nkytribune.com/2025/09/steve-west-charter-schools-are-a-constitutional-obligation-kentucky-must-meet-for-students-families/.
[10] Krauth, supra note 8.
[11] Goldberg, supra note 2.
[12] Valarie Honeycutt Spears, Kentucky Supreme Court Hears Arguments over Legality of Public Charter Schools, Lexington Herald Leader (Sep. 12, 2025, 8:21 AM), https://www.kentucky.com/news/local/education/article312062579.html.
[13] Council for Better Educ., Inc. v. Jason Glass, No. 23-CI-0020 at 2 (Franklin Circuit Ct., Dec. 11, 2023).
[14] Id. at 12.
[15] See id. at 3; McKenna Horsley, Franklin Circuit Court Judge Strikes Down Hb 9, a Law Allowing Public Funded Charter Schools in Kentucky, Ky. Lantern (Dec. 12, 2023), https://nkytribune.com/2023/12/franklin-circuit-court-judge-strikes-down-hb-9-a-law-allowing-charter-schools-in-kentucky/.
[16] See Brief for Appellant at 7-11, 27-28, Com. of KY v. Council for Better Educ., Inc., (No. 2024-SC-0022); Jamie Lucke, Charter Schools in KY Aren’t Dead Yet. Supreme Court Hears Arguments Pro and Con, Ky. Lantern (Sep. 11, 2025, 2:36 PM), https://kentuckylantern.com/2025/09/11/charter-schools-in-ky-arent-dead-yet-supreme-court-hears-arguments-pro-and-con/.
[17] Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 201–03 (Ky. 1989).
[18] Oral Argument at 23:14, Com. of KY v. Council for Better Educ., Inc., (No. 2024-SC-0022), https://ket.org/program/kentucky-supreme-court-coverage/commonwealth-of-kentucky-ex-rel-attorney-general-russell-coleman-v-council-for-better-education-inc-et-al/.
[19] Id. at 23:40.
[20] Id. at 49:00.
[21] See id. at 1:02:16; Brief for Appellee at 8–10, Com. of KY v. Council for Better Educ., Inc., (No. 2024-SC-0022).