State Courts Interpret the Meaning of Public Education 

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The Kentucky Supreme Court unanimously struck down the state’s charter school law last month in a major blow to school choice proponents. While the ruling itself relied on the Kentucky Constitution’s unusually strong safeguards against the diversion of public school funding, it’s also part of a wave of recent cases related to school choice and the meaning of public education. 

In Commonwealth v. Council for Better Education, Kentucky’s high court ruled that public funds can’t be allocated outside the state’s “system of common schools” (its traditional public school system) without voter approval. Charter schools don’t qualify as common schools under the state constitution, the court concluded, because they can limit their admissions and aren’t accountable to local school districts. 

“We cannot sell the people of Kentucky a mule and call it a horse,” the court said, “even if we believe the public needs a mule.”

The opinion itself focused on a “uniquely Kentucky” set of constitutional safeguards rooted in the state’s “pilfering landscape” during the 19th century, when public education funds were routinely diverted for other purposes. When Kentucky established its most recent constitution in 1891, it “deliberately ‘locked up’ K–12 money” to stop these shenanigans.

Notably, in 2024, voters rejected a proposed constitutional amendment that would have unlocked funding and allowed the state legislature to provide education funding outside the common school system. The court pointed to this development in its reasoning as well, suggesting that the rejected amendment “steeled the constitutional backbone of educational funding as strictly reserved for the common-school system.”

Most interesting to me is how the Kentucky Constitution structures its protection of public school money, requiring voter approval if the legislature wants to allocate funds outside the common schools. It’s one of many examples of state constitutions putting popular checks on state legislatures, often reflecting concerns about self-dealing. 

While Council for Better Education emphasizes Kentucky’s unique history, it’s also part of a new wave of education cases challenging various forms of school choice. These cases reflect a sea change in education policy: “the accelerating erosion of the line, once fairly crisp, between public and private schooling,” as Fordham School of Law Professor Aaron Saiger described it.

State cases testing the meaning of public education have had varied outcomes, and not along predictable ideological lines. Also in February, for example, the Idaho Supreme Court upheld that state’s school choice tax credit program, finding that it did not violate the state constitution’s requirement that the legislature establish a system of public, free common schools. The common school system is a constitutional minimum, the court concluded, which did not preclude providing other options. 

On the other hand, in 2024, the South Carolina Supreme Court struck down the state’s school voucher law, ruling that it violated a state constitutional ban on using public funds for the “direct benefit” of private educational institutions. The Wyoming Supreme Court also recently heard arguments on whether a trial court erred in halting that state’s school choice program, and the West Virginia Supreme Court is considering an appeal of a trial court ruling that the state constitution prohibits the creation of charter schools without a vote from the county or counties in which they would operate.

Underlying many of these cases are concerns that school choice will pull resources from public schools that many people regard as chronically underfunded. In Kentucky, for example, another pending case claims that the state is failing to provide students with an “adequate and equitable” public education. Changes in federal law, including the creation of a federal tax credit program for private school tuition, may further alter the landscape. Kentucky legislators are now considering a new school choice bill that will allow the state to opt into this federal funding. 

It’s not always a comfortable fit for courts to be so closely entwined in education policy issues. But the fact is that state constitutions have a lot to say about education — creating both affirmative rights and structural limits that constrain state legislatures. At their core, recent school choice cases raise the question of what public education really means. Look for ongoing dialogue and conflict between courts, state legislatures, and voters about how states should answer that fundamental question. 

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Alicia Bannon, State Courts Interpret the Meaning of Public Education, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (March 5, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-courts-interpret-meaning-public-education