Benjamin Field (Institute for Justice) & Joshua A. House (George Washington), Educational Choice & The Problem of Unprincipled Judging: An Object Lesson from Kentucky, 51 N. Ky. L. Rev. 23 (2024):

Programs giving families educational choices and resources beyond the traditional public-school system are now mainstream and present in most States. Like any government program, they are subject to judicial review, and most survive such scrutiny after a fair hearing. Yet sometimes, the political controversies around these programs lead courts to abandon their principles in favor of sui generis rulings. Such rulings cherry-pick snippets of constitutional text and case law, while ignoring the whole text, constitutional history, the thrust of precedent, and even the practical implications for other government programs. In other words, these courts abandon the very guideposts on which they profess to ground their constitutional rulings. The Kentucky Supreme Court’s 2022 landmark decision in Commonwealth v. Johnson, and the litigation leading up to it, perfectly illustrates this unfortunate phenomenon.

This Article explores and critiques the deeply flawed opinion and the results that will flow from it. It further situates it within the broader sweep of education-related litigation nationwide, alongside similarly unprincipled decisions that became repudiated embarrassments for the courts that issued them.

Conclusion
Kentucky is now a clear outlier in its decision to effectively treat tax credits as government funds and in banning tax-credit scholarship programs. Lower-income families are the ones who will suffer the cost. Fortunately, because unprincipled decision-making lacks the force of internal logic, it opens the door for courts to change positions. Hopefully, Kentucky’s courts will heed the lessons of Bush v. Holmes or Guinn v. Legislature and correct course in order to bring the law closer into line with constitutional text and history. Otherwise, the people of Kentucky have only one option to reclaim the meaning of their Constitution and to make educational choice a reality: amend the Constitution. Such an amendment will be presented to voters in November 2024. If they are successful in reclaiming the Constitution’s text and purpose, let’s hope that a willful court does not override the Constitution to impose its own policy vision yet again.

Update:  The Kentucky School Choice proposed constitutional amendment was defeated at the polls in November.

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