Council for Better Education v. Johnson

Litigation: Challenging the first-in-the-nation tax-credit funded education savings account program, named “Education Opportunity Accounts (EOAs). The program allows for public school students to use EOAs to pay out-of-district tuition to attend a different public school as a non-resident, but that provision is not challenged in this litigation.  Opposed to educational choice program: 168 of Kentucky’s school districts represented by the Council for Better Education; Frankfort Independent School Board; Warren County School Board; three parents whose children attend public schools. In support: The Commonwealth of Kentucky ex.rel. Attorney General Daniel Cameron; Akia McNeary and Nancy Deaton, intervening parents represented by the Institute for Justice.

Outcomes: On October 8, 2021, the Franklin Circuit Court, Division 1, ruled that Kentucky’s EOA program is unconstitutional. Implementation of the program has been stayed. On November 11, the Institute for Justice and Kentucky Attorney General Cameron filed notices of their intent to appeal, requesting the case be expedited to the Kentucky Supreme Court. On February 23, 2022, the Kentucky Supreme Court approved a motion to transfer the case directly from the circuit court to the supreme court. Briefing will begin in June of 2022.

Why it Matters: Support for children in need of different educational options has been strong in Kentucky for many years, notwithstanding the state’s reluctance to adopt a school choice program serving all children in need. EOAs will serve as an option for many children most at need, which is a good beginning toward serving all children in the state.

Effects: Pending final outcome of litigation before the highest court; EOAs are stayed because of lower court litigation.