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A Strong Kentucky Charter School Law Clearly Meets Constitutional Requirements, Top Legal Experts Find

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WASHINGTON, DC (February 16, 2016) — A team of Constitutional law experts led by former Solicitor General of the United States Paul Clement has determined that the Kentucky state constitution does not in any way prohibit enactment of a strong charter school law, with multiple authorizers, equal funding and not under the control of traditional school districts. Clement, who has argued 85 cases before the U.S. Supreme Court, was joined in the analysis by two fellow attorneys at Kirkland & Ellis, one of the nation’s top law firms specializing in constitutional law.

Some Kentucky policymakers say they’ve been told that the state constitution requires the operation of schools exclusively through existing elected school boards. But in his report, Clement finds that Section 183 of the constitution “clearly grants the General Assembly broad authority to decide what reforms will make the common school system most efficient.”

Clement and his colleagues find that “by their plain terms, these provisions do not limit the General Assembly’s broad authority under Section 183 to structure the common school system as the General Assembly sees fit.”

The only constitutional constraints on legislative authority are found in Sections 184 and 186, which “concern only how the common schools shall be funded.” Section 184 “says not a word about school boards, school districts, or elected officials,” the analysis points out. And Section 186, while mentioning school districts, “certainly does not mandate that all common schools operate under the control of those districts – or, for that matter, under the control of any other designated entity.”

The report also takes a look at Kentucky court rulings in this area, and notes that the courts have “repeatedly recognized that ‘school districts are creatures of the legislature, and the legislature has the power . . . to alter them or even do away with them entirely.’”

Charter schools are public schools that are allowed the freedom to innovate and operate without the bureaucratic constraints imposed on traditional schools. The report by Clement and his team notes that the proposed charter schools in Kentucky “satisfy ‘the one main essential’ of a common school system: ‘they are free schools, open to all the children of proper school age residing in the locality, and affording, so long as the term lasts, equal opportunity for all to acquire the learning taught in the various common school branches,” Louisville v. Commonwealth, 121 S.W. 411, 412 (Ky. 1909).

The report “is great news for the cause of parent power in Kentucky,” says Jeanne Allen, the founder and CEO of the Center for Education Reform. “There’s no need to water down the law or undermine the core principles of charter schooling to address a non-existent conflict with the state constitution. And there’s no reason that the legislation cannot move forward.”

The full report is available here.

Related: Check out the case for charter schools in Kentucky.