Request By:
Mr. O. Leonard Press
Executive Director
KET
600 Cooper Drive
Lexington, Kentucky 40502-2296
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter to this office, you requested an opinion on whether or not the General Assembly could appropriate funds for non-public schools to purchase satellite receiving equipment. This would enable non-public schools to continue to receive KET's in-school programming.
Three cases have addressed expenditures for school children attending non-public schools. In 1942, a citizen and taxpayer challenged the constitutionality of an Act that provided for transportation of school children attending non-public schools, paid for from general funds of the local school board. See
Sherrard v. Jefferson County Board of Education, 171 S.W.2d 963 (Ky. 1942). While the defendants claimed that this Act was a valid exercise of police power under the compulsory education laws, and that the Act was to aid pupils, and not to aid schools, the court concluded that this expenditure was in aid of non-public schools and unconstitutional under the Kentucky Constitution. See, in particular, Sections 171, 183 and 184.
Three years later, a taxpayer challenged the constitutionality of "An act to promote the public welfare, comfort, health and safety by providing . . . transportation . . . for children attending school." The Act allowed local boards of education to pay from general funds for transportation for all elementary school students who did not live within reasonable walking distance of the school attended in compliance with compulsory school attendance laws. See
Nichols v. Henry, 191 S.W.2d 930 (Ky. 1945). The Court of Appeals held that this law was not unconstitutional, but a valid exercise of police power under compulsory attendance laws. The Act had a permissible public purpose, that being the health and safety of state children. While this opinion expressly affirmed the earlier decision, the Court considered that the case dealt with an entirely different question and reached a different result.
Finally, in a declaratory judgment action, citizens challenged the constitutionality of a statute that supplied textbooks to children in non-public schools; the General Assembly funded and authorized the Department of Libraries to purchase and distribute the books for grades 1 - 12 upon requisition from non-public schools. See
Fannin v. Williams, 655 S.W.2d 480 (Ky. 1983). The Court noted that Section 171 requires that taxes be levied and collected for public purposes only; that Section 184 allows no sum to be raised for education other than in common (or public) schools until the question of taxation has been submitted to and approved by a majority of the voters, and that Sections 183 - 189 regulate education and include the requirement that "no portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, used by, or in aid of any church, sectarian or denominational school." Based on these sections, upon review of the facts, the Court held that the statute was unconstitutional, and added that, if one were to consider that the money benefited only children, that there would be a conflict with Section 3 of the Kentucky Constitution which prohibits any payment to individuals except in consideration of public service.
This case reiterates the logic of Sherrard and Nichols, described earlier, and differentiates the expenditure in Nichols as based on "health and safety." The expenditure for textbooks could only be viewed as educational in purpose; therefore the expenditure must fail.
To return to the question posed by your letter, the purchase of satellite receiving equipment for non-public schools through an appropriation by the General Assembly would appear to be educational in purpose. This might raise the same constitutional questions under the Kentucky Constitution that are presented in Sherrard and Fannin. If so, the expenditure would be difficult to defend. Under the Kentucky Constitution and Kentucky case law, this would appear to be a prohibited expenditure.