Chapter One
Each child, every child…

The establishment and financing of a system of common schools have been longstanding problems in Kentucky.  The commitment to a well-educated citizenry historically has been weak at best, as time and time again the General Assembly ignored the pleas of Kentucky's educational leaders.  
Since the very beginnings of the Commonwealth, Kentucky's agrarian economy and attendant attitudes have shaped its citizens’ perceptions of public education.  The amount of schooling needed to plow a field, work a mine, or hunt was thought to be very small. The Scotch, Irish, English, and German immigrants were favorably inclined toward education, but as was typical of the people with a transatlantic background, they felt that education, like religion, was a matter of personal rather than public concern. 
In Kentucky’s traditionalistic political culture such attitudes provided little fuel for the development of an efficient system of schools.  Kentuckians generally maintained a paternalistic and elitist conception of the Commonwealth reflective of an attitude that accepts a substantially hierarchical society as part of the ordered nature of things.  The common citizenry authorized and expected those at the top of the social structure to take a dominant role in the government.  In such a political culture the people tend to accept the government as an actor with a positive role in the community, but with a very limited focus, mainly that of 

maintaining of the existing social order.  Real political power is confined to a relatively small and self-perpetuating group of social elite who often inherit its 'right' to govern through family ties or social position.   In such a political culture the general disdain for public schooling, by a largely uneducated population, provided little incentive for the General Assembly to worry much about the establishment of schools at all.  
In his 1884 history, Kentucky: A Pioneer Commonwealth, N. S. Shaler observes, 
The public school system of Kentucky has never been in a satisfactory condition compared with the Northern communities, though, measured against the other Southern States, the showing is very good.  The trouble has been that the scattered position of the population has made the gathering of the children for school purposes a very difficult matter; and next, that the standard of education has been low, an evil that Kentucky has shared along with the rest of the Southern States. 

Private academies were the first schools established in Kentucky, but they were available only to the rich.  The decision to establish a system of publicly supported schools for all did not come early, or easily.  Kentuckians took the typical backwoods attitude of "wait until we have cleared our forests, and until we have made our fortunes and we will build schools."  Historian Thomas Clark describes the narrow curriculum available to boys in the early days of the Commonwealth. 
If it was decided a person needed an education their curriculum was dictated by the role they wished to pursue in life.  Surveying, arithmetic, geometry, bookkeeping, a little English grammar, and a few other practical subjects were taught to boys in private academies.  If they were to become politicians, it was necessary for them to know enough Latin and Greek to impress their constituents.

Almost two hundred years after the establishment of the Commonwealth, its Supreme Court decided that Kentucky needed to start over. "Lest there be any doubt, the result of our decision is that Kentucky's entire system of common schools is unconstitutional."  This opinion was the end product of a decision to sue the state of Kentucky on the part of a collection of educators, parents and students.  This group formed a non-profit corporation called The Council for Better Education and sought a declaratory judgment that Kentucky's system for financing its schools violated the Kentucky and the U. S. Constitutions.
	The basic concepts of school finance were originally outlined in a doctoral dissertation by Ellwood Cubberly in 1905.  His now famous monograph, School Funds and their Apportionment, put forth the basic arguments for state support of education and the apportionment of state school funds:
The state owes it to itself and to its children, not only to permit the establishment of schools, but also to require them to be established even more, to require that these schools, when established, shall be taught by a qualified teacher for a certain minimum period of time each year, and taught under conditions and according to requirements which the state has, from time to time, seen fit to impose.  While leaving the way open for all to go beyond these requirements the state must see that none fall below.   

Theoretically, all the children of the state are equally important and are entitled to have the same advantages; practically this can never be quite true.  The duty of the state is to secure for all as high a minimum of good instruction as is possible, but not to reduce all to this minimum; to equalize the advantages to all as nearly as can be done with the resources at hand; to place a premium on those local efforts which enable communities to rise above the legal minimum as far as possible; and to extend their educational energies to new and desirable undertakings.  
                                                         
It was not until the Constitution of 1850 that Kentucky established what was called an inviolable common school fund.  This is not to suggest that it was never violated.  Even then, no general taxes were levied to support it until 1904. Constitutional amendments in 1941, 1949 and 1953, new tax policies in the 1950's and 60's, the establishment of the Minimum Foundation Program, and certain hurtful legislative acts set the stage for the school-financing crisis in Kentucky that was in full bloom by the 1980s.
    Difficulties with school financing were not exclusive to Kentucky.  In the late 1960s, numerous actions were brought in federal court challenging school financing schemes in several states.  Collectively, this first wave of cases challenged inequities in school financing systems under the equal protection clause of the U S Constitution. The earliest of these cases, McInnis v. Shapiro, was the first fiscal equalization case to make it all the way to the U. S. Supreme Court.  The plaintiffs argued that funds should be distributed based on educational needs.  But they were unable to help the court devise “discoverable and 

manageable standards” by which the court could determine when the Constitution is satisfied and when it is violated.
In 1971, in the celebrated case of Serrano v. Priest, the California Supreme Court determined that its state system of school finance, which was substantially dependent on local property taxes, violated the equal protection clause of the Fourteenth Amendment.  The court determined that this funding scheme was invidiously discriminatory against the poor since it made the quality of a child's education a function of the wealth of his parents and neighbors.  In determining that education was a fundamental interest not conditioned on wealth, the court could find no compelling reason to uphold the system of financing.  This decision placed the burden of financing education firmly on the state.
The first wave crashed in 1973, when the U. S. Supreme Court denied the plaintiffs relief, and held in San Antonio v. Rodriguez that education is not a fundamental right under the U. S. Constitution, and therefore, poor school districts are not a protected class.  In this federal case, the court found that the U.S. Constitution does not even mention education; therefore, education cannot be considered a fundamental right.  The court rejected the claim that a suspect class was formed on the basis of property wealth.  Accordingly, the state of Texas was held to a lower standard of scrutiny, and under that standard, the court refused to overturn what it termed a rational system of finance.  This decision by the U. S. Supreme Court effectively precluded plaintiffs from using the equal protection clause of the U. S. Constitution by declaring it applies to individuals, not governmental entities.
	After Rodriguez, a second wave of cases began in 1973 with Robinson v. Cahill in New Jersey.  Generally brought in state courts, these cases are based on state constitutions and produced mixed results.  The plaintiffs generally argued that the presence of an Education Clause created a fundamental right, but the trend was toward conservative decisions upholding state financing systems. 
	Despite this trend, a small number of individual educators remained concerned about inequities among Kentucky's school districts.  They attributed the existing funding inequities to the Commonwealth’s system of finance.  For years, some of these educators were unwilling, for personal reasons, to act on their beliefs.  When the opportunity came, however, one of them met with a group of local school district Superintendents and formed a non-profit corporation that ultimately became the catalyst for revamping Kentucky’s entire system of public education.  
This manuscript explores in detail the Council for Better Education, from its genesis in 1984 as a small group of rabble-rousers through its emergence as a powerful force for all of Kentucky’s school children.  I seek to answer some important questions about how the Council for Better Education succeeded, and in so doing, perhaps to help other groups in other places succeed in the future.  
The Council for Better Education set out to achieve some measure of fiscal equity among Kentucky's school districts.  What it got, however, was arguably the most sweeping educational reform in the nation's history.  This is its story.

The Common School Ideal

“Each child, every child…” Kentucky Supreme Court Chief Justice Robert F. Stephens wrote it that way after much thought.  He had been studying the Constitutional Debates to determine the legislative intent in establishing an efficient system of common schools.  From the debates he read delegate Beckner’s stirring comments, “A system of practical equality in which the children of the rich and the poor meet upon a perfect level and the only superiority is that of the mind.”  Beckner described four justifications for establishing a system of common public schools that he called “fit nurseries of immortal spirits that have divine purposes to fulfill on earth.”  He said the common schools were essential to the prosperity of a free people, that they should embrace all children, assure that students understand our government and should be given to all - rich and poor alike.  
	From this Stephens set forth a renewed mandate for the Kentucky General Assembly.  In the most sweeping opinion affecting the public schools in the history of the Commonwealth – one that declared Kentucky’s previous attempts to establish an efficient system of schools unconstitutional – the Supreme Court placed responsibility for its creation and sustenance firmly on the legislature.  
The system of common schools must be adequately funded to achieve its goals. The system of common schools must be substantially uniform throughout the state. Each child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education. Equality is the key word here. The children of the poor and the children of the rich, the children who live in the poor districts and the children who live in the rich districts must be given the same opportunity and access to an adequate education. This obligation cannot be shifted to local counties and local school districts.

The court instructed that in redesigning Kentucky’s schools, certain essential, and minimal, characteristics of an "efficient" system of common schools must be satisfied.  Stephens wrote,
1.	The establishment, maintenance and funding of common schools in Kentucky is the sole responsibility of the General Assembly.
2.	Common schools shall be free to all.
3.	Common schools shall be available to all Kentucky children.
4.	Common schools shall be substantially uniform throughout the state.
5.	Common schools shall provide equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances.
6.	Common schools shall be monitored by the General Assembly to assure that they are operated with no waste, no duplication, no mismanagement, and with no political influence.
7.	The premise for the existence of common schools is that all children in Kentucky have a constitutional right to an adequate education.
8.	The General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education.
9.	An adequate education is one which has as its goal the development of the seven capacities recited previously.
The court declared, for the first time, that every Kentucky child had a fundamental right to an adequate education and described the seven capacities that must form the goal of an efficient system of schools: 
(i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.

With this sweeping opinion of the Supreme Court, and the passage of KERA, Kentucky’s public schools were transformed from a largely unregarded system to one that quickly became nationally renown for the scope of its reform effort.  The significance of the event is found in Kentucky’s historically weak commitment to public education and the sharp counterpoint provided by such sweeping reform.  It is equally surprising for the fact that it occurred in a Southern state with all its agrarian attitudes, traditionalistic ideals and paternalistic racial prejudices.  
Kentucky’s public schools developed late and they developed poorly.  Without sustained pressure from the populace, the General Assembly was free to ignore the public schools, and ignore them they did.  The historical evidence suggests strongly that absent public pressure, the legislature has been largely content to under-fund a very modest system of schools, for the benefit of a portion (certainly not all) of Kentucky’s children.  The record shows an uninterrupted stream of legislation that consistently promised much more than it delivered.  For those who believe in the common school ideal, it is a history of seduction and abandonment. 
The Kentucky Constitution of 1890 clearly placed the responsibility for assuring an efficient system of schools on the General Assembly.  But so great was the General Assembly’s disregard for the constitutional mandate that when the Supreme Court issued its opinion in the Rose case, legislative leaders were shocked to discover that the responsibility was entirely theirs.  The only mandate that seemed to resonate with elected officials was an implicit understanding that their duty to protect the common good was subservient to a higher calling – no new taxes.  Such was the depth of this understanding, that defense attorney William Scent actually argued before the Supreme Court that it was the will of the people that the legislature not raise taxes.  The defense never offered any proof of this claim and the Justices apparently did not need any.  But after the opinion, legislative leaders could no longer claim that local school officials had simply mismanaged an otherwise efficient system of schools.  The schools had to be fixed and it was the complete responsibility of the General Assembly to do so.  
The Kentucky Supreme Court’s decision in Rose v. Council for Better Education was a landmark case, amid three waves of school finance challenges that began in Federal Court in the late 1960s. The third wave began with Rose, and by the end of 1989, decisions in Montana and Texas cemented the emerging trend.  Third wave cases de-emphasized equal protection analysis.  Rather, 

plaintiffs relied on education clauses in state constitutions.  These cases are for the most part characterized by an emphasis on adequacy rather than equity.  Plaintiffs in the first two waves of school funding cases tended to emphasize the reduction of spending disparities.  They focused on input measures like per-pupil spending.  Conversely, plaintiffs in third wave cases concentrated on the sufficiency of school funding and postulated the existence of a constitutional floor of minimally adequate education to which public school students are entitled.  When courts have found the education afforded students to be below this minimum, they have ruled in favor of plaintiffs. 
According to Michael Rebell, Executive Director of the Campaign for Fiscal Equity in New York City, “Although plaintiffs prevailed in the early litigation, by the early ‘80s, defendants were winning most of these cases, primarily because the courts had great difficulty in devising solutions for the problems of funding inequities.”  Rebell sees the third wave cases as offering a benefit to the courts in terms of providing more tangible solutions.  “Instead of dealing with equal funding concepts and complex property tax reforms, the adequacy approach allows courts to focus on the concrete issues of what resources are needed to provide the opportunity for an adequate education to all students and the extent to which those resources are actually being provided.” 
As Prichard Committee Executive Director, Robert Sexton, understood, 

One of the things that has come out of the Kentucky lawsuit, if you look at cases in New York ...or in New Hampshire, is that the plaintiffs are now arguing that…measured academic achievement should be one of the factors the court considers when it’s determining whether there’s equity. Not just funding, it’s achievement.  The New York plaintiffs have specifically said they learned that from the Kentucky suit and from what happened in Kentucky after that in the reform.

We weren’t clever enough at that time to say…equal achievement is the desirable outcome.  We talked about managing dollars.  But I think we did at least open the…argument which was - this is not just about making dollars even.

Rebell also argued that the standards-based reform movement, which is active in virtually every state, provided the court ‘judicially-manageable’ tools and a core constitutional definition of adequacy…which allow the court to devise effective remedial orders in these cases.  Rebell sees a “critical link between mastery of the skills under standards-based reforms and the constitutional requirements for an adequate education.” 
Maintaining a school system that passes constitutional muster requires a kind of legislative vigilance not historically witnessed in Kentucky.  It requires legislators to “protect and advance” each child’s fundamental right to an adequate education.  The true test of adequacy lies in the ability to deliver on the promise of a world-class education for each and every child.  
Twelve years after the signing of the Kentucky Education Reform Act, the General Assembly’s commitment to monitor and support an adequate school system appears to be slipping once again.  A revitalized Council for Better Education returned to point out that the percentage of state general funds going to elementary and secondary education has decreased from 46.6% to 41% since 1996 and Superintendents are once again feeling the pinch.  By 2002, the Fayette County Public School District, once the state’s flagship district, was $100 million short of the funds to make needed facilities improvements.  Fayette County Board of Education members were powerless to lower class sizes, expand extended school services for needy children, extend professional development opportunities for teachers, or effectively address the achievement gap by any means other than monitoring test scores.  They were not only unable to expand learning time for needy children, but they were forced to consider cuts to basic services.  Little more than a decade after Kentucky’s most dramatic and historical accomplishment on behalf of the public schools, the adequacy of the system is, once again, being called into question.  

Chapter Summary
For reasons owing to Kentucky’s traditionalistic political culture and agrarian attitudes, the Commonwealth was slow to develop a system of common schools and once finally established, support over the years was weak.  As a result, the achievement of Kentucky’s children suffered as fiscal support for the schools languished among the poorest in America along with the rest of the South.  
A large amount of litigation emerged in the 1960s to challenge state systems of school finance.  Plaintiffs seeking to provide legally adequate public schools were frustrated in their attempts to use the U. S. Constitution as a basis to overturn funding schemes, but found success using education clauses from the various state constitutions.  Among these plaintiffs was a group of Kentucky public school administrators who formed the Council for Better Education and won a landmark case that launched a new wave of American school finance litigation focused on adequacy and equity.
The Kentucky Supreme Court, in Rose v. Council for Better Education, defined the constitutional mandate declaring the fundamental right of each and every child in the Commonwealth to an adequate education.  The court also reaffirmed the General Assembly’s sole responsibility to provide an efficient system of common schools and defined the elements of that system. 
The Supreme Court decision declared the entire system of schools unconstitutional and lead to the most sweeping education reform in Kentucky history.  But now, thirteen years after the passage of the Kentucky Education Reform Act the Council for Better Education has reemerged to question the adequacy of that system.