In Fannin v. Williams, l983, Justice Leibson writing for a Kentucky Supreme Court majority ruled that state funds could not be appropriated for educational funding of private schools.

The $11 million dollar expenditure adopted by the 2006 legislature to create a pharmacy college at a Baptist College (University of the Cumberlands) appears to be in direct violation of the ruling in this case written by Justice Leibson.
The following article in the Lexington Herald makes reference to the recent ruling of the Ky. Supreme Court.   (SEE EXCERPTS FROM THIS CASE ON THIS PAGE)  
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Legal experts debate constitutionality of appropriation
 

COURTS HAVE BEEN FIRM ON PRIVATE SCHOOL FUNDING
By Frank E. Lockwood
HERALD-LEADER RELIGION WRITER
As Gov. Ernie Fletcher considers whether to veto $11 million in funding for a pharmacy school at the University of the Cumberlands, legal experts are weighing in on whether an appropriation to the religious school is unconstitutional.
Kentucky politicians have tried off-and-on for decades to give tax dollars to private schools, but Kentucky judges have repeatedly blocked such moves based on a section of the constitution that prohibits spending state education funds on “any church, sectarian or denominational school.”
If the funding is approved for the Baptist school, said University of Louisville law professor Sam Marcosson, “my guess is that it probably isn’t going to be upheld.”
ACLU staff attorney Lili Lutgens wouldn’t say yesterday whether her organization would sue to overturn the appropriation if Fletcher signs it. “We’re looking into the matter,” she said.
State Sen. and former Gov. Julian Carroll, one of the state’s most prominent evangelicals, says he will sue if Fletcher approves the money for Cumberlands and a $317,900 grant to another Baptist school — Campbellsville University.
Carroll and other legislators began calling for a veto of the funding for the University of the Cumberlands after the school expelled a gay student, citing its policy against promoting or engaging in “sexual behavior not consistent with Christian principles.”
A matter of law
In 1983, in Fannin vs. Williams,(SEE EXCERPTS FROM THIS CASE ON THIS PAGE)  the Kentucky Supreme Court said it was unconstitutional for lawmakers to spend even $25,000 on textbooks for private school students — regardless of whether the schools are religious or secular.
The justices, in a 5-2 ruling, struck down the textbook purchasing statute “reluctantly.” While praising the law’s “salutary purpose” and conceding it might be “of public benefit” to provide the books, the judges said they couldn’t ignore the “clear and unmistakable” language of Kentucky’s highest law.
“A fair reading … of the constitution compels the conclusion that money spent on education is to be spent exclusively in the public school system,” the court ruled.
Lawmakers tried to overcome constitutional barriers by arguing that the books would go to students instead of private schools and would be purchased with “general assembly” funds, not common school funds.
The courts didn’t buy the argument, saying those appropriations were “no less public money from public taxes” than common school funds.
“The framers of our constitution did not intend for the legislature to spend public money to support private schools by these devices,” they wrote.
Yesterday, Senate President David Williams, R-Burkesville, said the state funding to the University of the Cumberlands is constitutional because the funding comes from the coal severance tax. He noted that Section 189 of the constitution says that no portion of any tax or fund now in existence raised or levied for educational purposes shall be appropriated for a church school.
“The coal severance tax fund is not levied for educational purposes. That’s why 189 does not affect this,” he said.
Williams sees ambiguity in the state constitution, but Frank Manion, senior counsel for the American Center for Law and Justice, does not.
“It sort of surprises me that they put it in the budget without addressing this problem. It seems straightforward,” said Manion, a Catholic who works for a public interest law firm specializing in religious liberties.
Brett Hall, Fletcher’s spokesman, said the governor has asked his general counsel, Jim Deckard, to review the constitutional issue.
Law was anti-Catholic
Kentucky is one of 37 states with laws prohibiting the use of public money for religious schools.
The 19th-century laws weren’t supposed to oppress Southern Baptists, Manion says. Catholics, who were emigrating to the United States by the millions, were the targets.
“These were bigot laws, passed by nativists, who wanted to make sure that my ancestors didn’t get anything that would help them educate their kids,” he said, branding the law an “embarrassment.”
“The people who are now being hurt by (the law) are possibly, in some cases, the descendants of the people who put them there,” he said.
The Kentucky courts have vigorously enforced Section 189 since it was passed in 1891.
In 1994, the court also struck down a Kentucky law which provided subsidies to some private schools to help cover bus transportation costs. In 1999, however, it upheld a law allowing counties to provide transportation for all private school students.
The key difference: the statute that was upheld didn’t give any state funds to private or parochial schools and didn’t favor religious schools over other private schools.
 

Fannin v. Williams, 655 S.W.2d 480 (Ky., 1983)
“ Section 184 of the Kentucky Constitution provides:
“No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation….”
        
Brown v. Board of Education of Newport, 108 Ky. 783, 57 S.W. 612 (1900), we said:
“… (T)he text of (Section 184) shows clearly that the intention was to prohibit the collection of any taxes to any extent for educational purposes other than common schools, without the consent of the people.”
        The federal constitution is silent on the subject of education, leaving this most important function to the several states. Our state constitution provides for and regulates this function primarily under the title, “Education,” Sections 183-189 inclusive. These sections start with the requirement that the General Assembly “provide for an efficient system of common schools throughout the state.” They end with 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, or used by, or in aid of, any church, sectarian, or denominational school.” A fair reading of these seven sections of the constitution compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Kentucky Constitution, Section 184, supra.?
“  The framers of our Constitution did not intend for the legislature to spend public money to support private schools by these devices.
        Section 3 of the Kentucky Constitution prohibits payment of public money “to any man or set of men, except in consideration of public services.”
        If we were to arbitrarily assume, contrary to the facts, that the statute benefits only the children in the nonpublic schools, to the exclusion of any benefit to the function of the schools, if we were able to completely separate the two, we would then be in conflict with Section 3 of the Constitution. When the statute is confronted foursquare, the dilemma is insolvable.?
Page 483
“In Talbott we examined the interplay between Sections 184 and 186 and arrived at this definition of the constitutional limitation on the expenditure of funds for educational purposes:
“It is immaterial that money produced by taxation is appropriated for school purposes after the tax is levied or the money collected. It becomes, as soon as the appropriation is made, a part of the school fund, and its distribution is controlled by these sections of the Constitution. Calling it a fund for the equalization of educational opportunities does not change its character. It is spent in precisely the same manner and for the same purposes as other state school funds, except the method of distribution is changed.”
        Section 189 of the Kentucky Constitution provides:
No portion of any fund of 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.”
?As previously noted, Section 184 of the Kentucky Constitution provides that public money can be expended for education other than in common schools when a majority of the legal voters approve the expenditure by public referendum. If the legislature thinks the people of Kentucky want this change, they should place the matter on the ballot.
        In sum, the Kentucky Constitution contemplates that public funds shall be expended for public education. The Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Pollitt v. Lewis, 269 Ky. 680, 108 S.W.2d 671 (1937). We cannot sell the people of Kentucky a mule and call it a horse, even if we believe the public needs a mule.
        Unlike the statute extending transportation to children in nonpublic schools, it is impossible to classify textbooks as anything but educational. As such the statute must meet the constitutional limitations of those sections of the Constitution covering “Education.”
        One can argue, quite reasonably, that this statute (and any statute) furthering education is of public benefit, whether selective or not. Unfortunately, this approach begs the question, because the Constitution establishes a public school system and limits spending money for education to spending it in public schools.
        Nor are we concerned with the reasons parents send their children to private schools, whether to provide a better secular education, to further their religious education, to avoid busing for desegregation, or whatever. The reason why the children are in private schools would have nothing to do with whether or not they should have free textbooks, if the state could provide them free textbooks in the first place. But the Kentucky Constitutional provisions that restrict spending money for education to public schools, restrict where and how public funds can be expended for education, not just when and why. So we cannot uphold the statute because we could find some public benefit in its purpose. It is constitutionally impermissible because of the manner in which it directs the expenditure of public funds for educational purposes, through nonpublic schools.
        As we stated in Commonwealth v. O’Harrah, Ky., 262 S.W.2d 385, 389 (1953):
“Constitutional provisions, whether operating by way of grant or limitation, are to be enforced according to their letter and spirit, and cannot be evaded by any legislation which, though not in terms trespassing on the letter, yet in substance and effect destroy the grant or limitation.
“In appraising the validity of the statute we must look through the form of the statute to the substance of what it does. The courts may not countenance an evasion or even an unintentional avoidance of our fundamental law.”
Page 485
        The decision of the trial court is reversed. The case is remanded to the trial court to enter judgment in conformity with this opinion and granting appellants injunctive relief.
        STEPHENS, C.J., and GANT, LEIBSON, STEPHENSON and VANCE, JJ., concur.
        WINTERSHEIMER, J., files a dissent in which AKER, J., joins.
 

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