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Rebeka McIntosh of Columbia and Kimberly Duvall of Jackson County filed their lawsuit Monday within hours of Gov. Mike Kehoe signing the state budget, which includes a first-ever infusion of state tax dollars to boost a program now financed by volunteer donations.

The duo is backed by the Missouri National Education Association, a teachers’ union that opposed the $50 million outlay when it was moving through the General Assembly this spring.

“The legislature’s attempt to empower executive officers and boards to shower taxpayer funds on families to use at private schools is unconstitutional,” the lawsuit notes.

Kehoe did not respond to a request for comment Tuesday. A spokesman for Treasurer Vivek Malek’s office, which administers the program, declined comment, citing ongoing litigation.

The governor, who took office in January, spent the spring actively promoting his plan, including appearing in an ad paid for by the American Federation for Children.

“I was raised by a single mother, and I watched her struggle to put me through a private school because it was the best learning environment for me,” said Kehoe, who graduated from Chaminade College Preparatory School in 1979.

The 27-page request filed in Cole County Circuit Court said the state’s Empowerment Scholarship Act “does not authorize distribution of general revenues for scholarships. No other Missouri statute provides this authority either.”

In addition, the lawsuit notes that the program has not performed up to expectations set forth in the original law that created it.

“In the four years since the establishment of the MOScholars program, donors have not come anywhere near exhausting the applicable cap on available tax credits for ESA scholarships,” the lawsuit notes.

The push to block the money is not a surprise.

Lawmakers were warned earlier this year that Kehoe’s plan to inject taxpayer dollars into the program would be challenged in court.

Democrats sharply criticized the outlay, saying public dollars shouldn’t flow to private religious schools. Some Republicans also raised enough questions to block the spending in the Senate.

Senate Appropriations Committee Chairman Lincoln Hough, R-Springfield, for example, argued that private schools shouldn’t be financed with public dollars.

But as part of a final budget deal, the money was restored in the House in May with the help of some Democrats, including Rep. Marlene Terry of north ӣ����Ƶ County.

Democratic leaders in the House stripped Terry of her committee assignments as punishment.

Using public funds for private religious schools is currently barred by the Missouri Constitution, though the U.S. Supreme Court in 2022 struck down a similar restriction in Maine, placing Missouri’s ban in doubt.

In a legal work-around prior to the 2022 precedent, Missouri legislators in 2021 narrowly approved a voucher program designed to run off private donations that are eligible for state tax credits.

Under the original plan, state funds are given to scholarship organizations through donations that receive a 100% tax credit.

But the MOScholars program has struggled to raise donations. In 2024, an estimated 2,700 students received scholarships. Malek has said he hopes the added money will add 6,000 students to the rolls.