Tax Diversion

05.07.14

Religious Schools Take Kentucky Taxpayers on an $18 Million Ride

The cash-strapped commonwealth is spending millions to fund student busing at private, mostly parochial schools—and while it might seem unconstitutional, don’t expect it to change soon.

A generation before my old, conservative Kentucky home emerged as a surprise ground zero for Obamacare-style health-care reform, the Bluegrass State shocked the body politic by setting a national example for innovative, progressive public education reform. Cornered by a 1989 state Supreme Court decision that said the “entire system of common schools is unconstitutional,” the Kentucky General Assembly passed a sweeping series of reforms that raised taxes on a deeply tax-averse populace to help ensure equal public educational opportunities for all of Kentucky’s schoolchildren, irrespective of the property wealth of the county in which they lived.

While Kentucky’s great education reform experiment has faced local political interference and conflicting federal mandates from the Clinton, Bush, and Obama administrations, a bipartisan consensus has endured: Financing public education is a high priority for Frankfort policymakers. Indeed, Democratic Gov. Steve Beshear, who’s won the hearts of national liberals for his über-successful implementation of the Affordable Care Act, has consistently placed public education funding at the top of his agenda. Through nearly a dozen rounds of painful, recession-inspired budget cuts totaling more than $1 billion government-wide, Beshear has protected that funding as best he could.

Accordingly, many political observers were stunned Sunday when, nursing their Kentucky Derby-related hangovers, they awoke to a screaming headline announcing that millions of their scarce tax dollars were being diverted to help bail out private religious schools. In a front-page exposé, Lexington Herald-Leader investigative reporter John Cheves reported that over the past six years, despite a severely constricted budget, the state had spent almost $18 million to pay for student busing at private, mostly parochial schools in two dozen Kentucky counties.

To the casual observer, the practice seems patently, almost absurdly, unconstitutional. Put aside how the U.S. Supreme Court has broadly applied the First Amendment’s Establishment Clause to prohibit the allocation of tax dollars for explicitly religious purposes; the Kentucky Constitution explicitly bans the public subsidization of parochial schools. Section 189 declares: “No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.”

In 1999, however, the Kentucky Supreme Court squeezed the school bus through the tiniest of loopholes and issued a 4-3 decision that declared the state funding wasn’t accruing to the aid of the schools but to the students themselves: For the majority, Justice William Graves wrote, “Aid to parochial schools is constitutional as long as the aid provided flows directly and exclusively to the child and only indirectly, if at all, to the parochial school.” The legendary late Chief Justice Robert Stephens bitterly dissented, ridiculing the majority’s insistence that the commonwealth was assuring the safety of its youngest citizens: “If the state can pay for transportation of students to protect them from the weather, then why cannot the same reasoning be employed to construct school buildings for such students? Certainly classes being held outside would present a threat to the children.”

Religion remains the third rail in Kentucky politics, one that even the most progressive of politicians are loath to touch.

In the intervening decade and a half, the composition of Kentucky’s highest court has turned over completely, and one might think that the new popularly elected justices would be keen to revisit the issue.

Think again.

Despite progressive progress in the commonwealth on any number of cultural issues, including the endorsement of same-sex marriage by all of the leading potential Democratic gubernatorial candidates, the burgoo-like mixing of state and religion remains a staple of the Kentucky political diet. Even in the past decade, our rural local officials were still leading the charge to post the Ten Commandments in their courthouses, and most recently, top state Democrats helped accommodate public tax incentive spending to support the construction of a creationist theme park featuring a true-to-the-Bible-sized version of Noah’s Ark.

Ironically, in a state whose religious politics have a distinctively Protestant flavor—Kentucky broke its decades-long tradition of siding with the Electoral College winner by voting against John F. Kennedy in 1960, at least in part over fears of his allegiance to the Vatican—state spending on private school transportation overwhelmingly advantages Catholic school systems. That’s likely due to the politics of geography: While Catholics represent less than 10 percent of the state’s population, the church is disproportionately represented in a few dozen counties, most of which lie on or near the Ohio River. Local politics feeds on Catholic Church fish fries, barbecues, and festivals, and it’s no coincidence that the most significant statewide political gathering, the annual Fancy Farm picnic and political speaking shout-fest, takes place on the grounds of St. Jerome’s Catholic Church in rural, far-western Kentucky. So local elected officials from these Catholic strongholds have strong motivation to fight for the status quo, or even to ask for more, as state legislators did this year when they quietly increased the private school bus subsidy by 17 percent to $3.5 million annually.

Nor is the Protestant supermajority likely to challenge the practice. Religion remains the third rail in Kentucky politics, one that even the most progressive of politicians are loath to touch, lest they provoke the ire of a public that’s deeply skeptical of the secular elite. Exhibit A is Gov. Beshear, who suffered significant repercussions when, as the state’s attorney general in 1981, he bravely advised local officials to stop posting the Ten Commandments in public school classrooms. The governor, who has tiptoed around the Noah’s Ark park funding controversy, is unlikely to waste political capital in his final year in the Governor’s Mansion by trying to wrest taxpayer dollars away from Catholic school kids.

Perhaps Cheves’s story will motivate the latest generation of civil libertarians to file a legal challenge against the increasing diversion of taxpayer dollars into religious schools. And perhaps the current Supreme Court will take a more literal reading of the awfully clear language in the state Constitution. But this recovering politician can assure you that those of us who pray our elected officials will apply a more responsible balance between church and state shouldn’t be expecting any political miracles in the short term.