KY district faces scrutiny for pushing against ‘school choice’ ballot measure. Is it legal?

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A public school district faces scrutiny from the Kentucky Attorney General’s Office over social media posts against a proposed state constitutional amendment on school choice.

The Pulaski County Board of Education posted information on its web site urging people to vote against the measure — called Amendment 2 — which will be on the ballot across Kentucky in November.

A Republican candidate for state representative in Northern Kentucky, T.J. Roberts , issued a release Monday saying that using public tax dollars to campaign against the amendment appeared to be a violation of the law by the school district.

“This is just a blatant misuse of tax dollars,” Roberts said in an interview.

But in a statement Tuesday, the Pulaski board defended itself, saying it has a “legitimate and legal right to protect public school money.”

Roberts also formally requested Attorney General Russell Coleman issue an opinion on the legality of public schools using public money or resources to campaign for or against the amendment. State Rep. Candy Massaroni, R-Bardstown, also requested Coleman’s office opine on the “legality and appropriateness” of public schools weighing in on the amendment.

Coleman, a Republican, issued an advisory Tuesday evening saying that tax dollars “must not be used to advocate for or against the amendment.”

The advisory noted that school officials and employees have a First Amendment right to express their views, but that they can’t use school resources or school time to advance their views.

Amendment 2, if approved by voters, would change the Kentucky constitution in a way that gives lawmakers the option to fund private and charter schools in the future. That is prohibited by the constitution as it is now written.

The bill putting the amendment on the ballot faced bipartisan opposition in both the Kentucky House and Senate.

School district pushes back

In a statement issued Tuesday prior to the attorney general opinion, the Pulaski County Board of Education pushed back strongly against the notion that it ran afoul of the law by urging people to vote against the amendment.

The statement said it’s wrong to refer to the amendment as “school choice” because it is really an effort to siphon off public tax money to benefit private schools and charter schools.

“The Pulaski County Board and Superintendent have a legitimate and legal right to protect public school money that should properly be spent on the public education of children in Pulaski County,” the board said in a statement released by its attorney, Larry G. Bryson.

“Nothing prevents the Board from taking a public position on this issue that goes to the very heart of the existence of the Pulaski County Public Schools,” the statement said.

The Kentucky School Boards Association , which opposes the amendment, put out guidance to school districts on how to handle their position on the measure.

The guidance said one opinion from the Attorney General’s Office says school districts can spend tax money to lobby for or against legislation, but that another says districts cannot legally spend money “to promote a certain viewpoint on a political issue.”

The guidance says Amendment 2 is clearly a political issue “and a district may not spend funds to take a side.”

‘Empower parents to make choices’

However, in a statement issued after controversy arose over the post in Pulaski County, the KSBA said the issue was not cut and dried.

“There is gray area between the use of public funds for lobbying — which is legal — versus use of public funds for what statute refers to as ‘political activity,’“ the association said in the statement. “Amendment 2 is a perfect example, as districts seek to inform their communities on the potential consequences of granting lawmakers broad new authority to divert public tax dollars to private schools.”

In his request to Coleman, Roberts cited a state law that bars the use of local, state and federal tax dollars to push for or against ballot questions.

“Taxpayers fund our schools to provide an excellent education for our children, not to campaign against measures that empower parents to make choices for their own children,” Roberts said in his request.

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In its response, the Pulaski County board said that in one historic ruling, the state Supreme Court said no entity was better qualified or had a bigger duty to raise a a question about school funding than local school boards.

Members of the Pulaski County board have been threatened and intimidated on social media for exercising their right to speak against Amendment 2, the board said in its statement.

The ballot question will read as follows:

“To give parents choices in educational opportunities for their children, are you in favor of enabling the General Assembly to provide financial support for the education costs of students in kindergarten through 12th grade who are outside the system of common (public) schools by amending the Constitution of Kentucky as stated below?

“The General Assembly may provide financial support for the education of students outside the system of common schools. The General Assembly may exercise this authority by law, Sections 59 , 60 , 171 , 183 , 184 , 186 , and 189 of this Constitution notwithstanding.”

School district says it could lose money

Supporters argue it would give parents more choices on where to send their children to school, including getting them out of poorly-performing schools.

Opponents argue the amendment could undermine funding for public schools , which serve most students in the state, by switching money to private or charter schools.

If voters approve the measure, state lawmakers would put together rules on public funding for private and charter schools in a future legislative session.

The post by the Pulaski County school system, which is on the board’s site and the site for individual schools, says that if the amendment passes and Kentucky lawmakers set up a system similar to the one used in Florida. the district could lose $15.4 million in public tax funding and have to cut 143 jobs.

That information is based on an analysis of amendment by the Kentucky Center for Economic Policy, which estimated that approval of the measure could result in public schools losing more than $1 billion in state funding.

Supporters of the amendment have said concerns about public schools losing money are not well-founded .

Roberts said Pulaski County was the only school district he had seen using its web site to oppose the amendment.

Roberts, an attorney, is running for the open House District 66 seat, which lies within Boone County.

Herald-Leader staff writer Valarie Honeycutt Spears contributed to this story.