ND Law’s Religious Liberty Clinic files amicus brief supporting school choice in Kentucky

Author: Denise Wager

School Children

Notre Dame Law School’s Religious Liberty Clinic submitted an amicus brief on behalf of EdChoice Kentucky, which represents a broad coalition supporting parental choice, in the Kentucky Supreme Court today.  The Clinic’s brief seeks to ensure that parents in Kentucky will have access to the educational choices for their children provided through Kentucky’s Education Opportunity Account Program.

Enacted last year, the Education Opportunity Account Program provides a tax credit for donations to private organizations that provide educational savings accounts to lower-income families. These accounts can be used for a wide array of educational expenses, including tuition at private and faith-based schools. The Kentucky Supreme Court is reviewing a lower-court ruling that invalidated the program on state constitutional grounds and which suggested that expanding access to public and private schools did not serve a public purpose.

The amicus brief demonstrates how programs such as the Education Opportunity Account Program not only provide tremendous opportunities for children in need of access to high quality schools, especially the most disadvantaged, but also promotes the public good.

Throughout our nation’s history, private and faith-based schools have played a central role in educating children and forming them to be productive members of their community. This is no less true today.  For example, in Kentucky, private schools educate about 70,000 students a year, including many from underserved communities. 

The brief observes that the Kentucky Supreme Court previously identified several core goals of a K12 education, which focus on preparing students for further academic study or the workforce, developing children’s self-awareness and well-being, and promoting civic understanding and engagement. 

Decades of research, cited in the brief, demonstrates that private schools provide an education that serves each of these goals. The brief reviews research that shows how school choice in other states has led to improved academic outcomes and other significant longer-term effects including increased high school graduation rates and college matriculation and persistence. 

As the brief demonstrates,  the benefits of private schools, and therefore the promise of expanding access to them through parental choice, extends beyond academics. It says, “This Court has long trusted private schools to ‘instruct children to become intelligent citizens’ and to ‘participate in the democratic system.’....Real-world experience shows that private schools do just that. Studies have shown that, overall, private schools and especially faith-based schools ‘do a better job of preparing students to be engaged members of a diverse, democratic society.’“

The brief further rejects the lower court’s suggestion that Kentucky’s program would “exacerbate the inequality and increase the disparity in educational opportunities available to all children.”

Rather, the brief states, “Kentucky’s EOA program is an important step toward ending that disparity and making superior educational opportunities accessible to all,” including especially children of color, children from low-income families, and children with special learning needs. “Programs which open the doors to private schools by making them more affordable help disadvantaged families the most.”

Nicole Stelle Garnett, the John P. Murphy Foundation Professor of Law at Notre Dame Law School, whose research on education policy is cited several times in the brief said, “Kentucky is to be commended for enacting the Educational Opportunity Account Program, which will open the doors of high quality schools to the kids who need them most and will empower parents—the first and best educators of their children—to choose schools that serve their needs, including faith based schools.  There is no reasonable argument that the program fails to advance the common good or serve a public purpose.”

John Meiser, supervising attorney for the Religious Liberty Clinic, authored the brief with Garnett and submitted it with Philip D. Williamson, a partner at Taft Stettnius & Hollister LLP in Cincinnati.  Meiser added, “The lower court’s fear that not every private school will be the right fit for every child misses the very point of Kentucky’s program.  The goal is to allow families to find those schools that are the best fit for their children, rather than to leave them locked in schools that do not serve their needs. This measure opening up the universe of schooling options—public, private, religious, and secular—to children in Kentucky should be applauded.” 

Andrew Vandiver, President of EdChoice Kentucky, added,"Kentucky’s non-public schools were founded to serve students and promote the common good.  The EOA Act will allow these schools to serve students in unique ways that will instill a lifelong love of learning and encourage them to share their gifts with others.  We greatly appreciate the Notre Dame Religious Liberty Clinic’s work to share the history of non-public school education in Kentucky and how that legacy of service continues to this day.”

Peter Allevato, Luray Buckner, Megan Schneider, and Athanasius Sirilla, students in the Notre Dame Law School Religious Liberty Clinic, also provided assistance on the brief.

About the Notre Dame Law School Religious Liberty Initiative

Established in 2020, the Notre Dame Law School Religious Liberty Initiative promotes and defends religious freedom for people of all faiths through scholarship, events, and the Law School’s Religious Liberty Clinic. The initiative protects the freedom of individuals to hold religious beliefs as well as their right to exercise and express those beliefs and to live according to them.

The Religious Liberty Initiative has represented individuals and organizations from an array of faith traditions to defend the right to religious worship, to preserve sacred lands from destruction, to promote the freedom to select religious ministers, and to prevent discrimination against religious schools and families.

Learn more at law.nd.edu/RLI.


Originally published by Denise Wager at law.nd.edu on June 15, 2022.