Kentucky AG’s office tells lawmakers where line is drawn on Amendment 2 advocacy

Last week a Kentucky school district’s social media posts against a proposed constitutional amendment caught legal scrutiny from the Kentucky Attorney General’s office. On Thursday, state lawmakers heard more about where schools can draw the line.

“Doesn’t matter if you’re a Republican, Democrat or Independent. It doesn’t matter if you support Amendment Two or oppose it. The law is clear,” Senior Counsel Wil Schroder opened.

The proposed constitutional amendment on the ballot in November could have an impact on public school funding, and already several district superintendents have shared concerns about losing funds. Last week Pulaski County Schools posted a Kentucky Center for Economic Policy infographic and a stylized “Vote No” image to advocate against the amendment.

Many in favor of the amendment have argued the school broke the law, while others including the district’s superintendent argued it was within their First Amendment rights. Attorney General Russell Coleman issued an advisory shortly after to make clear where advocates can draw the line, which was the topic of discussion at Thursday’s meeting.

“It creates at least in the minds of the public, a question of is this the assertion of personal opinions or is this an institutional position taken by the school? And we don’t want our schools to be seen as taking partisan positions,” General Counsel Christopher Thacker said.

Thacker referenced a 2021 law that states’ local, state, and federal tax dollars shall not be used to advocate for or against any public question that appears on the ballot to make clear that using any resources from a school’s printer paper to its social media on Amendment 2 would violate the law. Additionally, he referred to an AG opinion issued in 1974 outlining limits to advocacy on a busing amendment and the state constitution’s language on how taxes may be used for educational purposes.

“Even if you could say, you know, that doesn’t even cost pennies or we can’t even tell for sure if it’s costing the school anything if it creates the appearance that the school, qua school, the school as an institution, is taking a position that’s a nominal use of resources and that’s not permitted,” Thacker said.

Thacker argued the law does not limit First Amendment rights to take a position, as long as it’s in the appropriate setting. For example, he said discussing the amendment openly at a school board meeting would be appropriate.

“When you’re not on the clock, when you’re not using school resources, when you’re not using an official forum that’s not open to the public, you’re free to say whatever you want,” Thacker said.

Sen. Cassie Chambers Armstrong (D-Louisville) was the only lawmaker with a question who asked Thacker to clarify where the line is between public advocacy and answering general public inquiries.

“I heard you say that it’s okay to provide evidence and fact-based answers I think,” Chambers-Armstrong said.

Pulaski County School District’s superintendent responded to our request for a statement:

The Federal Courts have long recognized the doctrine of government speech and that school districts may exercise this First Amendment right of speech. This was recently recognized in a similar fact situation in the 4 ^th Circuit in 2008.

In Kentucky, the public schools very existence is threatened by the voucher proposal in Amendment 2. The Public schools First Amendment right to speak against this voucher proposal should not be stifled by the Kentucky Attorney General.

To my knowledge, the Kentucky Attorney General has never before issued an “Advisory” such as this. “Advisory Opinions” are issued and assigned a number just as other Open Records, Open Meetings or Attorney General Opinions, but this was named an “Advisory”  (not “Advisory Opinion” and was not assigned a number) by the Attorney General and was issued without any contact or effort to verify anything whatsoever with anyone in the Pulaski County Schools. While the Pulaski County Schools and Superintendent could have ignored this “Advisory,” the Attorney General’s “Advisory” included a threat of legal action.

The Superintendent and Board determined that education dollars are better spent on education rather than legal fight against the well staffed resources of the Kentucky Attorney General and the voucher advocates. The concept of public education began in Ancient Greece to educate those who could not afford a private education. Public education is a part of our neighborhood and Kentucky law. The Pulaski County Board members, Pat Richardson and this attorney, as individuals, will not give up on the idea of public education and will continue to fight for the education of the public’s children and will not concede to the idea of public tax dollars being used as vouchers for private schools.

We regret that the Kentucky Attorney General has chosen to limit the public schools’ First Amendment participation in this public debate.

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A spokesperson for “Yes on 2” released this statement to FOX 56:

Yes on 2 is about putting students first and giving a voice to parents who want a say in their child’s education. Opening up more education opportunities through school choice has support from both sides of the political aisle. We think it’s time for Kentucky to join our surrounding states and create new ways to support our kids.

A spokesperson for “Protect our Schools KY” told FOX 56: “Amendment 2, the Voucher Amendment, which, if passed, will allow for public dollars to be sent to unaccountable private schools, will be devastating to our public schools. Our coalition of teachers, parents and community leaders, encourage everyone to advocate for others to vote no on the voucher amendment within the confines of the law.”

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