Chapter Three
The Birth of the Council

It is difficult to say just where any movement toward change actually begins.  Every action has its antecedents.  In the case of the Council for Better Education's effort to achieve more equitable funding for Kentucky’s public schools, it began with the Minimum Foundation Program.  Long-time school administrator, James Melton, was very familiar with school finance issues.  He was a strong proponent of better schools and acted as an unpaid consultant to the Council for Better Education.  Melton was able to see clearly the negative impact of historical events and how local tax assessors, a governor, and the legislature prevented the Minimum Foundation Program from doing its job.  Retracing Kentucky’s most recent school funding concerns Melton recalled,
It goes back to the Foundation Program Study that was done.  At that time, a very comprehensive study of the needs of education was conducted, and some of the outstanding [school finance] consultants in the United States, Dr. Barr, Dr. Morphet and Dr. Johns, were brought in to develop an educational program for Kentucky.  This program was developed, and funding levels were identified at that time that they felt would have provided Kentucky with an adequate level of program.  

At that time there was to be local participation by what we called required local tax effort.  The school districts had at that time $1.50 maximum permissive tax.  We were to calculate their program and then subtract the required local tax effort.  The required local tax effort, at that time was $1.10, leaving leeway of $.40.  Well, the assessments became so poor that the yield from this $1.10 tax rate reached a point where it required, in some districts, $1.77 to produce what a $1.10 should produce.  

As a result there was court action where the Kentucky Court of Appeals ruled that all property had to be assessed at fair cash value.  That was Russman v. Luckett [1965].  The Governor [Ned Breathitt] immediately called the legislature into session and enacted what was called House Bill 1.  This rolled the rates back, to where that the districts could produce no more revenue than was produced the previous year, plus 10%.  They did allow for two 10% increases.  Unfortunately, some of the poorer districts that needed it most didn't take advantage of the 10% increases, which left them with a very low tax rate. 

The local participation continued to erode for about a four-year period after HB1 as a result of the definition of net assessment growth.  The definition was very limiting.  It allowed for additional revenue only on new property going on the tax roles for the first time, such as a new hotel.  An increase in the assessment on a house precipitated a reduction in the tax rate.  As a result of this, some districts, such as Pulaski County, ended up with no local tax rate at all.  And over time, the rich got richer and the poor got poorer.  According to James Melton,
The...disparities between the wealthy and the poor grew greater.  And I talked with school districts about the need, since it was rather apparent [that there wouldn't be] legislative action, to go to court with it.  ...As far back as the mid 60's we had talked about this.  

As a matter of fact, we did bring to court a case in the Federal Court in Western Kentucky.  It concerned the federal Title I distribution law.  That old law provided that if you identified a culturally deprived child, that the federal government would give you half of your average cost spent in your state for ADA.  At that time we were probably spending an average of about $1,500, while New York was spending $3,000.  So Kentucky would only get $750 per child so identified, while New York would get $1,500.  But we had that case dismissed. 		
	
The frustrations surrounding inequitable funding for public schools continued to be felt by school Superintendents and other educators, including 

several within the Kentucky Department of Education.  According to one of these state employees, Arnold Guess,  
For a number of years myself, James Melton, and Kern Alexander were working in the Department of Education.  We all fancied ourselves to be 'scholars of school finance', I suppose you would say.  In any event, we all worked in the area.  We were persuaded that the Kentucky school finance program was not a program that was constitutionally sound because it didn't provide equity for children throughout the Commonwealth.  In the face of having assessment ratios per child at 8:1, and with no significant equalization program, we felt that a case could be brought in Kentucky courts and get that corrected. 
 	
These discussions, however, never developed into action on the part of any local school districts.  The reason for inaction seems to relate more to a lack of leadership than lack of commitment.  No unifying force pulled the parties together.  The reason Guess did not act sooner was more personal.  As he put it,
You don't bite the hand that feeds you ...and we were all three working for the state.  Later, Kern [Alexander] went on to other places and eventually Jim [Melton] left the Department and became the Executive Secretary of the School Board Association. 
	
When Alexander and Melton left the department, they busied themselves with other issues.  Still no leadership emerged on this issue, until the election of Alice McDonald in 1983.  During the campaign, Arnold Guess had supported the unsuccessful candidate, James Graham.  McDonald took exception to keeping Guess on as Assistant Superintendent and sent him a letter asking for a meeting to discuss his separation from the department. 
[W]hen Alice came in it was very apparent she was going to let me go so I went ahead and retired December 31st preceding her coming into office January 1 of '84.  After doing not much of anything for about six weeks, I took a part time job with the Commonwealth Credit Union, to promote school districts into joining the credit union and making their services available to their employees.  Because I was continually on the phone talking to Superintendents trying to get this sort of thing arranged, we began to talk...about the school finance problems.  [I] reached [the] conclusion, after talking to about twenty of them that it would be worthwhile to explore. 

Among the first local district Superintendents with whom Arnold Guess spoke was Frank Hatfield from Bullitt County.  He later recalled,	
Well, actually I guess it was...1984.  Some of us (a group of Superintendents and Arnold Guess) were discussing one day the disparity in funding between school districts in the state...I guess I was particularly aware of that because, being next to Jefferson County, we had kids actually that lived next door to each other that, if you figure an average of 30 kids to a class, the classroom expenditures for one of those children, was as much as $60,000 more than the classroom expenditure for the other just based on them living 50 feet from each other.  And we got to discussing that if education, as our constitution says, is a state function, and the constitution says you're to have enough, but the legislature is to provide an efficient system of schools.  We wasn’t sure anybody's measure would call that efficient.  Shortly after that Arnold called me and asked would I be interested in meeting with a group to talk about looking at that problem and seeing if there was any avenue we could take to, maybe correct it or at least get it clarified. 

Guess also called on Jack Moreland, Superintendent of the Dayton Independent School District, Eugene Binion, Elliott County Superintendent, Alex Eversole Superintendent of Jenkins Independent Schools and Wolfe County Superintendent, Tony Collins.  Collins recalled the first phone call from Arnold Guess.
Arnold Guess probably was the force that caused [the Council for Better Education] to happen.  He called me one day and said he understood I had a big mouth and that I’d been going around the state speaking about the funding.  

And I said, ‘That’s exactly right.’  

He said, ‘If you feel that way about it, do you have enough guts to file a lawsuit about it?’  

I think my answer was, ‘You’re damn right I have.’ 

Eugene Binion, Superintendent of Elliott County, also saw Guess as the catalyst for the Council.  He recalled,
I think Arnold was a fellow who had been involved with education for many years.  He’d been a local school superintendent.  He had worked at the state department of education.  He worked in finance.  He had been involved in working with the legislature and he understood the process real well.  I don’t think there was any sense at all of revenge.  I don’t think it had anything to do with the fact he’d been fired other than the fact that it freed him to speak his own mind. 

I think anybody who works for an agency or who works under civil service rules or other tenure rules…has to be careful about what he says.  And I think that at any point somebody could say, ‘stop these outside activities of yours and pay attention to your job.’  So I don’t think he felt any pressure at all any more to have to do that.  I just think he thought it was an opportune time to do it and he knew many of us who might be interested in it.  I give Arnold a tremendous amount of credit for getting the case started.  I don’t think we could have gotten it together without Arnold.  And, I think he depended a whole lot on Jim Melton to help him some. 

Arnold Guess began his work with the Commonwealth Credit Union in February.  By April, he had sufficient encouragement from twenty-three Superintendents with whom he had been in contact that he issued a memorandum.  Dated April 12, 1984, the memorandum was sent to ‘Selected Superintendents’ in the bottom third of the state as measured in assessed value per pupil, inviting them and their local Board of Education chairs to a meeting in Frankfort, on May 4, 1984, at 10:00am.  This meeting marked the beginning of the Council for Better Education.  
The meeting was held at the Capital Plaza Hotel and was chaired by Guess.  Thirty-nine people representing twenty-eight school districts heard presentations from James Melton, David Alexander (Kern's brother), and Richard Salmon as well as Arnold Guess.  As a result of the presentations and discussion, consensus was that the General Assembly "had not adequately taken into consideration the differences in ability of school districts to support adequate programs of education."
With consensus achieved on the issue of possible litigation, a steering committee was selected and charged with the responsibility of pressing the objectives of the Council.  Members of the Steering Committee were Frank Hatfield, Tony Collins of Wolfe County, Jack Moreland of Dayton Independent, Clarence Bates of Wayne County and Alex Eversole of Jenkins Independent. Another important action taken at that first meeting was the request of an "official pledge of up to $.50 per child in Average Daily Attendance for the purposes of filing a suit to test the constitutionality of the state school finance program during the 1984-85 school year." 
News of the Council for Better Education meeting spread throughout the Commonwealth prompting legislators to ask for more time to act before any suits 

were filed.  As early as April 20, 1984, Frank Hatfield had received a call from 
Laurel True with the Kentucky Department of Education.  According to Hatfield's notes of the conversation, True was "asking that we consider giving the Interim Committee an opportunity to deal with the equalization issue before taking any legal action." 	Other discussions with legislators were also held.
[W]e decided that, maybe, the thing we do would be to talk to some of the leadership people about it and just see what their opinion was.  So, we… made an appointment to talk to Joe Clarke, who was...Chairman of the House A&R Committee, and told him our first approach, we guessed, would be to see if he thought the legislature might define what they considered to be an efficient system of common schools, and then lay out some kind of path for meeting whatever they thought it would be.  He said, ‘Well, that's a noble goal and all, but,’ he said, ‘I can tell you that I think the chances that has are almost nil.’  And pretty much said, ‘I don't like to get sued, but,’ said, ‘If you all really want this question answered that's probably the only way it's going to be done.’ 

On May 25th, Hatfield and Guess met with Senator Michael Maloney.  According to Hatfield,
At first, he was - I think he was a little bit irritated by it.  And then we went on talking and we suggested the idea, well, ‘Would somebody define that?  It's never been - the constitution says that, but nobody's ever said what that [an efficient system] is, and whether we have it and whether we don't.’  He finally said, ‘Well, that's a valid question.’  He said, ‘I'm an attorney.  And I know the process you go about to get those kind of things answered.  The court's probably who'll have to answer it.  Although,’ he said, ‘I don't relish the thought of a lawsuit.’  And he talked about a friendly lawsuit, and said there weren't such a thing in the end. And I agree with him on that. 

Maloney was later quoted in the Louisville Times newspaper as objecting to the filing of a suit saying that such a suit would alienate legislators.  “Action in a lawsuit would not be well received by those people in the General Assembly who have been working on the situation.  Everyone's being accused of not doing their job.”  
The Council for Better Education was at that time experiencing problems with stature.  The newly formed group was little more than a loose confederation of Superintendents who were "talking up" the idea of an equity suit with legislators who would certainly become defendants.  Needless to say, many were not terribly receptive. Jack Moreland was another of the Superintendents who was engaged in discussions with lawmakers.
The mood we experienced at the time we were talking about filing the suit, and when we did file the suit, was a very hostile mood…It all came about because the General Assembly had just met.  I think that was in 1984.  Money was short.  We were just coming off of the cuts of the Brown Administration in the early 80's, of course, there never has been a lot of money, but at that time we had some $30 million in Power Equalization.  The House had appropriated some $12 million to the Power Equalization Fund and when the Senate met on the Budget Bill they didn't put any money in the Power Equalization Fund...[After the Conference Committee met] the Power Equalization Fund wound up with zero.  That was the straw that broke the camel's back because not only were we getting zero - we were getting less than zero because the Brown Administration, one of the first places they had looked to cut was the Power Equalization.  So the poor school districts that were being helped by Power Equalization, not only had to suck it up, so to speak, when they lost the money from the Brown Administration, but we were not getting any help in an appropriation time for the next two years.  And it was so frustrating.  And it was one of those things where we'd just had enough. 

Frank Hatfield, and Kern and I testified before a joint session of the Senate and House Education Committees one day.  This was before the lawsuit was filed.  We were just kind of rattling the chains a little...and those legislators were just absolutely hostile.

Later that afternoon Superintendents Jack Moreland, Frank Hatfield, Clarence Bates, Alex Eversole, and Tony Collins met with State Superintendent of Public Instruction, Alice McDonald.  Moreland described the superintendent’s mood and his own reaction.
Alice, who at that time came out very strongly against what we were doing - In fact she had said that what we were doing, as far as using the $.50 per child in ADA, was illegal - and she told us, essentially, that she would own our houses if we went into this.  It was a lonesome time there when the Senate and House were all mad as hell at us and Alice McDonald was mad as hell at us.  And it was a time when you either stood up and were counted or you went home.  The mood at that time was just really nasty. 

Frank Hatfield expressed surprise that any Superintendent of Public Instruction would react as Alice McDonald had.
She got up and said that she thought it was illegal and that she would go to court to see that the money was refunded.  She got on my case pretty good out in the corridor.  I think we really assumed that being superintendent, she would be for equity and for improved funding for students.  We were really surprised at her and her response to it.  
	
Council member, and Hardin County Superintendent, Steve Towler recalled,

Alice didn't like this idea.  She threatened us-if you do this I'll blah, blah, blah.  So we went to the Attorney General's office and got an opinion that says we can [use board fund to sue the state].  She did everything in her power to stop this. 

It seemed that, at this time Council members were getting very little encouragement and no action at all. It was time to obtain counsel.  That is when Guess, Hatfield, Moreland and Eversole decided to enlist the help of Bert Combs.  As Hatfield recalled, 
We then decided what we could do to get some; I guess stature is what we wanted to do.  Arnold and I then decided we'd go talk to Judge Combs, seeing if we could find somebody with some stature that might represent us if we decided to proceed with it [the suit]. 

According to Combs, in 1984,
Arnold Guess…was one of two or three people who came to see me.  I was practicing law in Louisville; getting along pretty well.  I had forgotten that I had ever been Governor of this state.  At least I was trying to forget it…and they said, 

‘Yeah.  You’re the “Education Governor” aren’t you?’ 

And I said, ‘oh yeah, yeah, I’m the “Education Governor”.’

And then they said, ‘Well you know what’s happened don’t you?  You know that the children of this state are not getting a fair shake.  They’re not getting an opportunity for an adequate education.  And you do know what the constitution says, don’t you?’  

And, of course, I do know.  I read it.  I had ignored it, as had most of the people in Kentucky.  

‘And it does say that we shall have an efficient system of common schools, and that it shall be efficient throughout the state.  Not just in Fayette County or Jefferson, but throughout the state.’  And they said, ‘Why don’t you join with us in filing a lawsuit, and see if the courts will intervene in the situation?’

Combs recalled that the group pressed their argument strongly saying, 	

‘We know, and we believe you know, that the present school system is completely inadequate, not offering an opportunity to the majority of the school children in Kentucky to receive an adequate education.  The General Assembly has steadfastly refused to appropriate enough money.  We know and you know that Section 183 of the Constitution mandates the legislature to provide an efficient system of schools.  We can easily prove that the system is inadequate, not efficient, and that it is not uniform.  We can prove that there is a complete lack of uniformity in the system, in that some of the more affluent counties have almost twice as much money to spend per student, as do some of the property poor districts...The legislature is not doing anything about it.   We believe education is a fundamental right under the state and federal constitution.’

I said to them, ‘Well, you're half right.  It is a constitutional right, in my judgment, under the Kentucky constitution, but under the federal, it is not a right.’   

Combs was worried about finding a state judge who would act on the law without politics getting in the way.  He pointed out to them that if they could bring a suit in federal court, they would have lifetime federal judges.  He told them that in Kentucky, judges, even appellate judges, are elected and thus they look to the taxpayers for reelection just like the sheriff or jailer does.  Combs thought that would make the process very difficult. The advantage was that federal judges did not have to worry too much about taxpayers but could look to the law and what was good for the country.  All things being equal, Combs preferred going to a federal court.  But all things were not equal.  The federal courts were an unattractive option legally, and Combs ultimately believed they would lose because of the holding of the Supreme Court in San Antonio Independent School District v. Rodriguez that education was not a fundamental right under the U. S. Constitution.  
	Combs was less than encouraging.  As he put it, “I double-talked them a little, and I said, ‘Let’s think about it a little,’ and so on. And I’m glad to see you…You think about it and so will I.  And they left.  And I was hoping they would go away.”  As a name partner in one of Kentucky’s largest law firms, Combs, “needed to sue the Governor and the General Assembly about as much as a hog needs a sidesaddle.”  But the issue did not go away. As Combs related the story, “Arnold had time on his hands.  Alice McDonald had just fired him.”  So at the very least, Arnold Guess did not go away.
Actually I hoped that was the last of it.  I had no feel for getting into this sort of thing.  I thought it was a very difficult sort of a lawsuit.  I knew we didn't have any money.  I had no great desire to work for nothing.  They went away. I thought about it some and maybe I did a little research. 

In fact, he did.  Part of that research was to test the idea of a lawsuit with other individuals who were also interested in improving Kentucky’s schools.  A relatively new citizen’s advocacy group had formed under the name of the Prichard Committee.  An offspring of the Kentucky Council on Higher Education, the committee had shifted its focus to elementary and secondary education a year earlier.  The group was working to create reform in the schools through a statewide program of town forums, the creation of local citizens and business groups, and a strong relationship with the press.  
	The origin of the Prichard Committee went back to late 1979, when the Kentucky Council on Higher Education passed a resolution to create a “Committee on Higher Education and Kentucky’s future.”  The Council needed somebody to put that together.  Harry Snyder, who served as Director of the Council on Higher Education, recruited Robert Sexton.  He was named Deputy Director for Policy and Planning.  Snyder and Sexton wanted to create a group structure that would promote buy-in from its members by spending real effort on the relevant topics.  During the John Y. Brown administration, the more typical structure was the Blue Ribbon Panel where successful business people would “pop in, pop off and pop out.”  Sexton was looking for a more meaningful and long-term commitment.  The selection of members and particularly the chair had to reflect that commitment.  
Sexton and Snyder thought about many possible candidates for chair (including then Lieutenant Governor Martha Layne Collins) and ultimately decided on attorney, Edward Prichard.  Prichard was seen as bright, generally well respected, and he had become “the informal spokesperson for higher 

education in Kentucky.  He was the “public intellectual” who had been on the Council on Higher Education for fifteen years.  The staff knew him.  He was well liked (by most) and was effective working with the press.  After his selection as chair, the group adopted his name.  
The timing was very fortunate for the Council for Better Education, as many of the Prichard Committee’s activities ran parallel to the Council’s efforts.  According to the Prichard Committee’s Executive Director, Robert Sexton, 
The first recollection I have of the lawsuit was Bert Combs talking to [Ed] Prichard and me in 1984, not long before the town forum.  He said that he had been talked to by folks who were talking about this lawsuit.  And, did we think that the Prichard Committee might like to be some part of it.  Combs was famous for being somewhat in-elliptical and indirect.  He didn’t come in and say, “I want you to be part of this.  Here’s the deal.’  He was kind of exploring.  He hadn’t decided to be their lawyer at that time…

Prichard and I did not think we should get into it. I know that we talked about this notion that it was this…equity funding lawsuit that didn’t really deal with some of the fundamental problems in public education that we thought had to be dealt with, and probably didn’t take it all that seriously.  And Bert Combs wasn’t pushing it that hard.  He wasn’t taking it that seriously either.  So anyway, we declined to be involved.

	Apparently, Combs was not too discouraged by the Prichard Committee’s lack of enthusiasm.  He continued to consider the proposition.
I put it on the back burner.  Then in a month or so, well here they come again.  [It was the] same group or most of the same group…They said, ‘We're coming back to talk some more to you.  We just think that something needs to be done.  We are willing to make the effort.  We need a lawyer.  True, we don't have any money, but we think you ought to do this for the benefit of the school children of the state.’

And so we talked some more and I finally said to them, ‘I don't want to embark on a losing cause and I don't think you do. But if you can get a substantial number of school district Superintendents and Boards of Education, in a substantial number of school districts in this state, that would say to me that they want to file this suit, I will give it some serious consideration.’ 

Combs was concerned with how many people would not only join in the suit, but stay there when the going got rough, as his political experience taught him it would.  He said he did not want people who would "yield to pressure and perhaps go behind a log when the pressure comes." 
As Combs related, 	
By that time we knew that Alice McDonald, the Superintendent of Public Instruction was bitterly opposed to such a proposal.  I thought that would be difficult.  I knew, or thought I knew that the leadership of the General Assembly or some of them would resent the lawsuit as being an attempt to invade legislative territories...I wondered, too, how the Governor of the state would react to such a lawsuit.  The Governor at that time was Martha Layne Collins and she had been a schoolteacher.  I knew that.  She was an advocate for better schools but she hadn't been able to do much about it.  And I wondered what a state judge would do when he knew that if he ruled in the plaintiff's favor it would mean an increase in tax revenues and whether he would think he could make such a ruling and survive politically. 

When the Council members left the second time, there was still no commitment from Combs to represent the group, although, evidence suggests that the Council had gone ahead anyway and used his name to help recruit new member districts.  Superintendent Steve Towler recalls being approached to join the Council.	
I was impressed.  They had a steering committee.  They were serious and indicated that they had Judge Combs agreeing to file this suit...To have a person the stature of Kern [Alexander] and the former Governor's law firm...when I went to that first meeting, I said, ‘Boy, this is going to happen.  This is absolutely going to happen.’ 

Combs said, “I assume they did [use my name to help recruit members].  In fact, I think they told me that they were.”  But this time after the men left, Combs spent more time thinking not only about the case but also about how he was raised to understand his own responsibilities.  
I wasn't excited, but my conscience worried me.  I wondered to myself, ‘If you don't do this…?’ And these people had deliberately planted this seed and they were persuasive and, of course dedicated, and they knew their subject and so forth.  

My father was a practical politician and my mother was an idealist, a very dedicated religious woman who believed that God put you on this Earth for a purpose and that when...the opportunity came for you to do something worthwhile that God expected you to do it.  I get a little of both.  I did know that what they said was true.  I didn't know how easy it'd be to prove it.  But I knew that the school system in Clay County was not as good as the school system in Fayette County.  I knew that.  I was gradually coming to the conclusion that an effort ought to be made, and that I ought to be part of that effort.  

Regardless, Combs sent them away again.
	
Of course, I wasn't discourteous.  I wasn't abrupt.  I realized that they were making a great sacrifice.  They were saying that they were willing to make additional sacrifices.  I would say I would give it some additional thought.  And then I wouldn't communicate with them.  I kept thinking, ‘Well, they'll get off on something else.’  And then too, I had some concern whether they would be tenacious enough to carry this thing to a final conclusion.  I kept trying to decide in my own mind...the chances for success…Finally, when they got sixty-six districts, they said, ‘We've done what you've told us to do, now we want you to file the suit.’  I agreed to do it.  

	Combs' agreement to represent the Council was announced on October 9, 1984.  Many people felt that the council's ability to get Combs to sign on was the key to turning around what had become a very negative attitude on the part of legislators.  Jack Moreland remembers:
Up until that time we were just a bunch of rabble-rousers.  After that we became a legitimate, bona fide organization, with legal counsel that was as good as any legal counsel in the Commonwealth, and somebody who had name recognition all over the state speaking for our position, and we were something to be reckoned with.  That's when the legislature began sinking money into this thing...That's when we really started gaining credibility. 

Some Powerful Help

	Long before the Council for Better Education, there was the press – arguably the staunchest ally of American public schooling in the twentieth century.  The American press was essentially designed as a vehicle for influencing the public toward one philosophical ideal or another.  From the very beginnings, the most important function of newspapers was to express opinion and influence voters.  In American Journalism: History, Principles, Practices, David W. Sloan explains,
…[P]ublicists had recognized the growing importance of the newspaper in influencing public opinion.  In the early Constitutional period, party leaders such as the Federalist Alexander Hamilton and the Republican Thomas Jefferson saw fit to establish organs to espouse their party sentiments.  The group that controlled a paper had none of the characteristics, however, of a modern corporation.  Few of its members invested in the paper with the main goal – or even the expectation – of making a profit.  Their main purpose was to have a forum to promote their party’s views and, they hoped, to win elections, control the machinery of government, and thus determine the nature that the political system would take.

America in the early 1800s was a highly decentralized agricultural society most aptly described as a loose confederation of localities.  Localism was rampant and only a few visionaries had any national vision.  Americans were held together by the printed word.  Publishing was cheap and it had enormous impact.  Literacy was high, particularly in the North.  Literacy was essential to commerce as well as entertainment for the 85% of the population that lived in rural areas.  Americans at this time were buying more issues of newspapers than any country in the world.  By 1810 there were 371 daily papers for a population of approximately eight million.
By the beginning of the 20th century, American newspapers had changed significantly and two new trends began to emerge.  First was the growth of newspapers as big business, which consequently gave rise to the second, the professionalization of journalism.  With the shift of emphasis from partisanship to profit, papers found that their editorial positions changed   When profits emerged as a paper’s motive, owners attempted to broaden their appeal by presenting both sides of the issue and even-tempered opinion.  Increasingly, a city’s newspaper was its only one, and the paper’s readership was composed of liberals and conservatives.  “Both the economic pressure (what constitutes ‘good business’) and a fair recognition of social obligation reinforce[d] the principle of news objectivity, divorced from editorial bias.”  But even though business-oriented paper owners encouraged a conservative editorial position, “working journalists in the 20th century tended to be ideologically liberal.”
Compelling examples exist demonstrating the power of the press to spur the public to action including action to reform the public schools.  Reform in education seems to occur when a general philosophy of education meets practical public opinion and forms a powerful force for change.  Perhaps the best early example of this occurred in 1892, when Walter Hines Paige served as editor of The Forum.  Paige sent reporter Joseph Rice on a month-long school appraisal expedition.  The subsequent articles in The Forum galvanized many strands of protest being heard throughout the country into one strong voice advocating reform in the school.  Paige’s decision launched a movement toward progressive education that spread across the nation and dominated the first half of the 20th century. 
Just as with the progressive education movement, education reform in Kentucky was the product of a public policy campaign supported strongly by the editorial position of the press.  For the Lexington Herald-Leader, that position was established by then editor, John Sawyer Carroll.  John Carroll assumed the editorship of the Lexington Herald-Leader in 1979, having been recruited by then publisher, Creed Black.  Black had known Carroll when they both worked for the Philadelphia Enquirer.  Carroll came to Lexington with two aims: 1) making the paper more professional, and 2) capturing half of the state market from the Louisville Courier Journal.  As the Herald-Leader editor he personally decided that school reform in Kentucky would be the paper’s foremost issue.  As Carroll recalled, 
Back in 1983, when I was still getting my feet on the ground as far as trying to grasp Kentucky issues, we read about Governor Winter, down in Mississippi, who was campaigning for reforming the schools down there.  It was a very dramatic thing he was doing and he was very successful in mobilizing people and getting the legislature to do that. 

Over the years, Kentucky and Mississippi had very often been vying for ‘last’ on the list of public school systems in the country, by various measurements.  And one refrain from Kentucky educators was often ‘Thank god for Mississippi,’ because Mississippi would come in 50th and we’d come in 49th…  Now, here was Mississippi trying to do something about it and Kentucky’s still stuck in the mud.  So, I personally decided at the time that that should be our foremost issue – that Kentucky is just not going anywhere without better schools.

But Carroll did not make his choice in a vacuum. He studiously read and talked to many people on the subject.  Significantly, he also developed a close friendship with Edward Prichard, another of Kentucky’s strongest advocates for education reform.  According to Carroll, the paper developed a clear strategy, which it followed over the years. 
I think that all together we have been a voice for better schools for a long time.  That’s certainly been our intent – to raise that issue, and cover the living hell out of it, in a news sense, and to provide commentary that will get people talking and thinking about it…

I’m somewhat proud of this.  …I don’t always write editorials and columns that I feel proud to read seven years later, but I wrote one on Governor [John Y.] Brown ignoring the schools versus Governor Winter who’s doing something down in Mississippi.  And I concluded…’the need for better schools is a message so true and so powerful that if it reaches all of the voters of Kentucky, no one in public life will dare stand in its way...’

I wrote this in ’83…and I later came to doubt it.  I really came to doubt that…the Kentucky body politic cared that much about schools or children or anything else - and would never do anything to shake itself free of the bonds of ignorance.

The contemporaneous emergence of the Prichard Committee as a group focused on elementary and secondary education provided assistance to the Council that it would not have likely developed on its own.  Seemingly, every time the Council said, ‘We need equity,’ the Prichard Committee would say, ‘Kentucky needs better schools.’  The two groups coexisted in a symbiotic fashion providing an effective one - two punch that gave material to the press and helped fuel public interest.  
Much of the Prichard Committee’s objective was to garner the support of Kentucky’s newspapers.  In fact, Robert Sexton had systematically approached each of the major papers.  Sexton acknowledged, “The Herald-Leader and the Courier had…done big education stories before we even got created.  We were talking to them behind the scenes about these stories before we even established ourselves.”
	The Prichard Committee was created to “build a fire under this system in the right places so that something better than we’ve been able to accomplish will happen.”  Before long the focus gravitated from higher education to elementary and secondary education.  As Sexton put it, 
In a state like Kentucky, your worst educational nightmare was elementary and secondary.  Second, the people in the group were just as interested in elementary and secondary as they were higher education.  Third, there was a growing national movement.  [There had been reform programs in Arkansas and Mississippi.  The report “A Nation at Risk” had created waves nationally.]  We had to paint a vision that was more compelling for donors.  

Sexton’s own description of the philosophical underpinnings of the group is instructive.  
I have a drive and a passion for making this kind of long-struggling place that’s Kentucky, a lot better.  The notion that people would allow themselves to be in the kind of a terrible economic and social situation we’ve permitted; and correcting that is a passion.  And I’ve always been on a kind of political side that says that there’s a top and a bottom to that and the top has let this happen. The people who control the universities, the people who control the businesses, the people who control…the attractive industries have been quite willing to let everybody else languish as long as they provided the kind of strong backs that we needed.

The Prichard Committee became an independent, non-profit organization in the fall of 1983.  It began with a plan to deliberately create change in the K–12 system.  In Sexton’s words, 
From the very beginning there was a notion that we had to do things in a manner that caused action… Governor Collins was not a friend of the Prichard Committee.  By that, really, I mean that Edward Prichard actively worked for Harvey Sloane in that campaign, and was actively against her and in the campaign.  [He] said some things that were really negative about her.  So we didn’t have much of a relationship.  We did, however, establish one.  It wasn’t close, but at least we established a relationship that allowed us to suggest things to the Governor or to her staff and to kind of push her along.

She came forward with a reform package for the 1984 legislature.  As I remember it was not particularly bold, but it was a step.  She also included some revenue increases, and she lost that in the legislature.

The defeat was galling to Governor Collins.  She saw herself as an education Governor but was Kentucky’s first woman Governor and apparently was reminded of that on occasion.  As Sexton saw it, “there was a little bit of that kind of element throughout.”
The thing that had happened in the legislature is that there was coming to be a group of legislators - they were called the ‘Young Turks’ - who were fairly progressive very interested in education.  They were very close to the Kentucky Education Association, so on certain topics they weren’t going to be very aggressive.  It included Harry Moberly, Roger Noe, Joe Barrows…and a couple of others.  I think what happened, they wanted to be the ones who put together the program and ran it through the legislature.  And they couldn’t ever reach agreement with Governor Collins…so essentially, her package was defeated.

The Prichard Committee wanted the Governor to try again by calling a special session on education, but it was uncertain that it would happen.  Committee members were receiving some positive indications, but they could also tell that she “had really been bothered by being beaten on the issue.”  Sexton revealed the Prichard Committee’s strategy.
We decided that we needed some kind of way to encourage her.  And that’s where the Town Forum originated.  We got the idea that we needed to start in Kentucky a movement that was made up of more people than the Prichard Committee.  

The Town Forum had two or three purposes.  One was that we wanted to expand the Prichard Committee’s reach, so that more people knew who we were…Second, we reasoned that if we did that, they would form a political force of some kind.  And also we reasoned that if they did that it would attract media attention and politicians would get a sense people cared.  Finally, we thought the Governor would get the message and would be given some support to move forward.  She would know that there were some people on her side.

But given the Prichard Committee’s tenuous status with the Governor it was not likely they could just call her up and get the job done.  According to Sexton,
We thought about two strategies.  One was to go to the Governor and say we wanted to put together this forum, ‘Would you help us?’ Or we could have said, “Would you do it?’ which was really the model.  Around that country in this period you had these outreach programs.  A lot of them have been done by governors who were really building support for their own programs.  So, we could have done that.  We decided to do something else.

We decided to put it together, and organize it and make it very clear that it was going to happen and then go to the governor.  I think we did that because we thought the answer might be ‘No.’ 

What had happened was this – We found a little money to get some staff to work on this [town forum] through an anonymous donor.  A $50,000 check came in from an east Kentucky coal person who was a friend of Governor Combs.  He was contacted through Lois Weinberg, his daughter.  So we got this money… We went to KET and we picked a date, and they agreed to broadcast statewide.

On October 15, 1984, two weeks after the official announcement that Bert Combs would be representing the Council for Better Education, The Prichard Committee launched its first Town Forum.  Kentucky Educational Television broadcast the forum statewide with introductions by Governor Martha Layne Collins, former Governor Bert Combs, Robert Sexton from the Prichard Committee and State Superintendent, Alice McDonald.  After the broadcast introductions at KET, “Governor Collins drove to the forum in Lexington and 

wound up on the covers of all the newspapers because they took a great picture of her (with Sexton’s 7-year old son).”  The strategy worked like a charm.  According to Sexton,
I think that what it did, as a political activity, was very successful.  We were able to say that about 20,000 people came out.  They were located in, I think it was 145 different locations.  They represented all of the school districts in the state.

The way the press carried it was that it was this massive outpouring for better schools.  The press really played along with this.  The press from the beginning said this is a very important part of this movement.  Governor Collins immediately began to plan her next move.  …She put together a statewide tour, got all of the former governors and other political people and celebrities and they had a helicopter and bus tour to 10 or 15 county seats to talk up the need to improve Kentucky education. So she really took charge.  She started really getting energized and came forward with a reform program in 1985.

After the Prichard Committee’s Town Forum, Governor Collins indicated that a special session of the General Assembly would be called for 1985.   There was general agreement among members of the Council for Better Education that any suit should wait, thus giving the legislature an opportunity to fund the power equalization program to a more appropriate level.  
Action to initiate the suit was temporarily suspended.  The Council issued a memorandum to members of the General Assembly, stating that the contemplated test of the Kentucky system of school finance in the state court was being done without malice and that the action was intended to help define the state role in providing an efficient system of schools.  But the message was clear: that the Council urged serious consideration be given to its concerns if such a suit was to be avoided.  

Roles of Key Council Members

By the end of June1984, Thirty-nine districts had committed to join the Council for Better Education. But, most of the Council work was being carried out by what Hardin County Superintendent Steve Towler refers to as “a little core of...truly convicted people.”  Among them were Superintendents Jack Moreland, Alex Eversole and Frank Hatfield.  “Arnold Guess was one...and Kern [Alexander]…could preach on this topic.”  
Arnold Guess served as the primary clearinghouse for council communications.  Along with James Melton, he worked as an unpaid consultant providing historical school finance information and attending council meetings.  Kern Alexander and Richard Salmon were the paid consultants providing the research and statistical information. Steve Towler was primarily a recruiter.  His previous position as President of the Kentucky Association of School Superintendents made him known to many Superintendents and board members across the state. Frank Hatfield was the chair.  He dealt with the press and directed the organization along with Jack Moreland who served as Secretary/Treasurer, and later as Chair.  

Bert Combs was primary counsel and made all of the legal decisions.  He described himself as “more a mouthpiece and a PR man.”  Combs said, “Debbie Dawahare did most of the research, she did most of the pleadings, wrote most of the memos…” Theodore Lavit, who incorporated the group and stayed on to advise it “was an excellent counsel in the case.  He knew the subject” and had been involved in previous litigation.  He was the trial attorney in the western Kentucky case with Kern Alexander. 
During the summer of 1984 and through the spring of 1985 the Steering Committee, which was acting on behalf of the Council, took care of some organizational concerns.  By June, a position paper outlining the Council’s objectives was mailed "to all members of the General Assembly as well as all newspapers, radios and television editors."  
The Courier Journal responded with editorials on June 16th and 19th supporting the Council's efforts saying, "In any event, courts are available to answer these and other questions.  In a free country, there is no valid reason why anyone shouldn't make use of them, and there are some convincing arguments that this issue should be settled once and for all."   
Members of the General Assembly were assured that the contemplated suit was being considered without malice but was seen "as yet another way to assist in defining the role of the state in providing an efficient system of common schools."  At the same time local school Superintendents were encouraged by the Council to assure their Senators and Representatives that the suit was being considered without malice.  They were also asked to help recruit more member districts and to talk to the local media and opinion leaders about the organization's position.  
The Council next met in Louisville on September 4, 1984 with Bert Combs, Kern Alexander and Theodore Lavit making presentations.  It was decided that the Steering Committee would continue to act on behalf of the Council for the time being until the addition of other members, who were expected in October and November. 
On October 3rd the Steering Committee met again with Bert Combs who informed them that Wyatt, Tarrant and Combs would represent the Council and that Dr. Tom Lewis and Edward F. Prichard would be a part of the legal team.  This prompted several more articles from the press.  The Kentucky Post and the Louisville Times were both supportive of the Council's efforts.  The Post editors wrote, " Kentuckians shouldn't fool themselves into believing the state can improve its national image and ranking while it allows so many poor districts to remain at the bottom of barrel in the amount of money spent for education." 
Combs drew much of the attention.  He was referred to as a "heavy legal hitter" who was willing to "represent the plaintiffs at cost."   Comb's commitment to the Council seemed to sway the approximately twenty-five uncommitted, but interested Superintendents to recommend to their Boards of Education that they join the Council.  
Some Superintendents were reluctant to join due to their uncertainty that the use of school funds was legal.  To allay their fears, Combs “pledged to get a definitive ruling” on the legality of the per-pupil assessment before school boards [would be] required to pay [their proportionate shares]. 
Still other Superintendents were concerned that what Debra Dawahare later referred to as the “Robin Hood Theory” might be employed.  "Several [Superintendents] asked if the suit would result in a downward equalization penalizing wealthier districts.  But...Kern Alexander...said that in 15 states where similar suits have been successful, 'No district was harmed at the top, except in a very few circumstances’." 
In December, Frank Hatfield asked for an Attorney General's Opinion regarding the legality of school districts expending Board of Education funds to 

cover the cost of reasonable fees, including attorney's fees, in order to sue the state.  A seminar on the equity question was held for local Superintendents at the KSBA meeting in Louisville on January 27, 1985.  The seminar was an opportunity for the Council to answer questions and perhaps persuade more members to join.  
Favorable responses to discussions with local Superintendents, the addition of Combs, favorable newspaper reports, and efforts like the Equity Seminar began to pay off.  By March 10, 1985, the Ashland Daily Independent was reporting that 61 school districts serving over 150,000 of Kentucky's students had pledged more than $75,000 to the filing of the equity suit.  
By April the Council membership was declared to be Sixty-six.  This was twenty-six more districts than Combs had previously indicated would be necessary to give the Council "psychological and political credibility."  The Steering Committee reported to the members concerning their recent activities including the development of the complaint, considerations of the proper jurisdiction in which to file and the development of the bylaws. The membership report seemed to be based on the Council’s understanding of a district’s verbal commitment to join the Council.  Council records show the actual payment of dues came later, after the local district’s Board of Education passed an appropriate resolution.   Superintendent Jack Moreland’s Dayton Independent School District was the first to pay its dues on May 24, 1985.
By the end of June, forty-nine of the committed sixty-six school districts had paid their dues.  Some were reluctant, however, due to a lack of definitive assurance that such a remittance was legal.  For example, G. C. Garland, Superintendent of Laurel County Schools, wrote of his concerns to Jack Moreland saying, "We have your request for payment on the amount pledged by the Board.  However, we understood that there would be some assurance of the legality of that payment before payment was actually required.  Has that assurance been given?"  That assurance was to come on July 2, 1985 in the form of an Attorney General's Opinion OAG 85-100.  After disclaiming that “this opinion in no respect will address the merits of the anticipated litigation,” David Armstrong opined that the Council could well expend school tax money to finance litigation.  He wrote, "We believe there is bountiful statutory and case authority to be harvested and applied to your question..."	
The Council formed a Board of Directors, which met in Frankfort on May 8, 1985 to act on several organizational matters.  Frank Hatfield was named President and Chair of the Board of Directors.  Jack Moreland was named Secretary-Treasurer and Steve Towler, Vice President.  A depository was also 

named.  Two other matters of importance were acted upon.  The legal firms of Wyatt, Tarrant & Combs and Theodore Lavit attorney-at-law were directed to "develop all necessary complaints and legal documents necessary to bring suit in accordance with the purposes of the Council in courts of proper jurisdiction at the earliest possible time."  And Dr. Kern Alexander was hired by Council to act as principal consultant and to advise, assist, and in all manner work with the Council and its attorneys in developing evidence necessary to support the pleas made by the Council through their attorneys in State and Federal Courts." 
By May 14, 1985, Theodore Lavit had completed work on the Articles of Incorporation and was seeking tax-exempt status for the group through the I.R.S. The Board of Directors met again at the end of May to ratify the bylaws and the elected officers now that the group had been incorporated.   This process was repeated, in part, at a later date, due to the simple misspelling of “Council” in the Articles of Incorporation.  The error accidentally created the ‘Counsel’ for Better Education, and it became necessary to change all documents filed with the Secretary of State.  
A Special Session of the Kentucky General Assembly began on July 8, 1985 and saw the legislature attempt to reconcile itself with the issues raised by the Council.  Unfortunately, the General Assembly employed the historical 

practice of passing legislation without funding in an effort to claim the moral high ground while taking no risks with the taxpayers.  Even so, as more political pressure was applied some Superintendents became uncomfortable with the pursuit.  On August 12, 1985, the Board of Directors met to review the Governor's Education Improvement Program as it related to the suit. 
By that time, due to "internal pressure from [state representative] Jody Richards," the Warren County Board of Education voted to rescind its action to join the Council.  The Board minutes stated, "The reason for this action is that Governor Martha Layne Collins' proposed Education Improvement Program to be considered in Extra-ordinary session of the Kentucky General Assembly beginning on July 8, 1985, contains considerable funding for elementary and secondary education, including a substantial increase in the level of support in the Power Equalization Program.”  Council financial records show that the refund of $4,328.80 requested by the Warren County Board of Education was never made.  The Warren County School District was, however, removed from the membership roles.
Governor Collins was concerned that a suit, such as the Council was anticipating might undermine her efforts to lure the Toyota Motor Manufacturing Company to Kentucky, something that was seen as a major economic boost for the Commonwealth.  If she bore any acrimony toward the Council or strong 

disagreements with its cause, it was not readily apparent. Bert Combs confirmed his understanding of the Governor’s sympathy toward better schools.  As he later stated publicly, “I understood that Martha Layne didn’t object to the suit being brought.”  As Wolfe County Superintendent Tony Collins recalled,
… I sat and talked with Governor Collins.  And she didn’t want us to file that lawsuit because she was negotiating with some serious state business - and we didn’t.  We held it until she finished her negotiations because it was good for the state.  This [suit] was not [intended] to get someone.  You know, I think that’s the difference.  Everyone thinks that someone’s out to get them.  And this was not to get anyone.  This was to correct some wrong that had constantly been ignored up through the years. 

Superintendent Eugene Binion of Elliott County was receiving negative feedback as well.

Some of the people in leadership positions in the legislature became quite angry about the suit.  And we as individuals, and as a group, received information that we ought to be careful about what we were doing.  And, that we ought to think twice before we agreed to take part in such a suit.  I guess you could use the term threats.  We were told that we would be prosecuted for spending public money in a wrong manner, fraudulently, and that we might have to pay it back out of our pockets.  The Superintendent of Public Instruction [Alice McDonald] told us that she didn’t want us to file the suit.  [Senator] Nelson Allen [chair of the Senate Education Committee] who was involved with the legislature at the time was saying that we shouldn’t be filing the suit. 

With the close of the 1985 Extraordinary Session of the General Assembly, it was time for the Council to make a decision.  Once strongly stated opinions had softened somewhat.  Council attorney Theodore Lavit tried to “rally the troops” composing a rather stirring letter of encouragement to Frank Hatfield saying, 
I hope that we have not lost our fervor in pursuing the equity in education case for Kentucky school children...Sixty million dollars, which is still unappropriated, over a period of three years, is but a pittance of what is needed to equalize the school districts.  We can do much better, and in fact, if we have the courage to begin the suit, we will win because we have the law squarely in our corner.  ...[T]o fold up now is an admission that we are satisfied or should be satisfied.  In fact, we have received but a promise of so small proportions that I would not hesitate to recommend ignoring same in light of prospects of the suit.  

President Hatfield next received a letter from Kern Alexander containing his assessment of the progress, or lack thereof, in the special session of 1985.  Alexander stated, “I believe we can predict, with reasonable confidence, that the wealth differentials between rich and poor school districts will not be appreciably altered during the next few years.”  Despite his opinion, Alexander was sensitive to the political pressure the members had come under.  He wrote, 
Frank, as always, there is both a funding and a political question involved here.  From a funding perspective, the 1985 Special Session achieved very limited success.  In fact, the provisions were so modest that fiscal disparities may well increase rather than decrease by 1987-88.  The fiscal inequities which existed prior to the Special Session are changed little, if at all, by the new legislation… Politically, only the Superintendents are in a position to analyze their local conditions to determine if further pursuit of change through judicial action is advisable.

On September 5, 1985, Jack Moreland responded, sending identical letters to Kern Alexander, Debra Dawahare and Theodore Lavit stating, "the proposed law suit was in a form ready for filing."  He called for all bills to be submitted for payment and alerted all consultants that they would "proceed on an assignment basis." 
At last the Council was in a position to file.  The only thing remaining was a 'green light' from the membership, which the Board of Directors hoped to obtain by mailed ballot. The members were asked to respond to two options: 1) Proceed with filing the lawsuit at the earliest possible date; or 2) Remain active as an organization but not file suit prior to the regular session of the Legislature in 1986.  Prior to that session, lobby the legislature to define efficiency and set a timetable for establishment of an efficient school system.  Then, based upon the outcome of this activity, decide the proper course of action following the regular 1986 session.  
While the Board of Directors waited for member responses, the Courier Journal quoted State Representative and Chair of the House Appropriations and Revenue Committee, Joe Clarke saying, “It’s unlikely that the legislature will increase money for power equalization.”  It was the Council’s contention, as expressed by Kern Alexander, that the Power Equalization formula offered an appropriate solution to the problem.  “It’s a good idea and the formula will do the job, if they just appropriate enough money for it.”  The $39 million dollars allocated equalized “only part of the tax rate and therefore doesn’t accomplish the purpose of offering the same quality education to children in rich and poor districts.”
This response from the membership, however, proved to be "less than overwhelming."   The twenty-four responses gave the Board of Directors little direction producing the following:
		For Option 1	(to File now)		For Option 2 (to wait)
               Dawson Springs			Wayne County
		Bracken County			Spencer County
               Harlan City				East Bernstadt
		Owen County				Knox County
		Fulton County				Crittenden County
		Butler County				Rockcastle County
		McLean County			Clay County
		McCreary County			Williamsburg
               Hart County				Ludlow
		Hardin County				Laurel County
				    Augusta
							Hickman County  

The lukewarm response prompted President Hatfield to call for a special meeting of the Board of Directors.  The meeting was held at the Kentucky School Board Association headquarters in Frankfort on November 8, 1985.  In attendance were Arnold Guess and Superintendents Frank Hatfield (Bullitt County), Ray Hammers (Butler County), Steve Towler (Hardin County), Clarence Bates (Wayne County) , Dennis Lacy (Crittenden County, by proxy), Alex Eversole (Jenkins Independent.), Charlie Brown (Fleming County) and Jack Moreland (Dayton Independent.).  After some discussion, Ray Hammers and Steve Towler moved and seconded that the suit should be filed "with all due speed to answer constitutional questions contained therein.”  The motion carried. 
As Eugene Binion explained,
You’ve got to realize that the 66 of us took a lot of risk to begin with.   If we had been scared, or if we hadn’t believed in what we were doing we wouldn’t have done it to start with.  We know several local Superintendents who would not participate for that very reason, because they were told not to.  And that’s not being critical of them - that’s just fact.  There were Superintendents who were afraid to become involved in the case even though they knew it was the right thing to do.  That’s their problem and they have to live with that. 

In preparation for the press conference that would announce the Council’s suit, Frank Hatfield released two statements to further explain the Council's action.  In the release titled “Statement,” the Council took the position that, "For the past 31 years the General Assembly has been committed to a substantially equal educational opportunity for all Kentucky school children.  When enacting the Foundation Program in 1954 the General Assembly clearly stated in KRS 157.310 its intention, "...to assure substantially equal public school educational opportunities..." Contending forces, circumstances, and the assignment of financial priorities have combined to substantially diminish the progress made toward meeting their stated intention."  
In a second statement titled, “Why This Action at This Time” the Council stated, “The Council, in general, supports the educational reform legislation passed by the special session and the last regular session…however…many of the reform measures…make the issue of equal funding more imperative than it has been at any previous time."  The Council cited the new testing program, statewide accreditation, and legislation allowing districts to be declared educationally bankrupt.  This, along with the general trend toward more state control led the Council to seek to answer the question as to what is meant by our constitution when it speaks of an efficient system of common schools throughout the state and what the legislature intended in 1954 when it spoke through KRS 157.310 of assuring substantially equal public school educational opportunities statewide.   
The action styled Council for Better Education, et. al. v. Martha Layne Collins, Governor, et. al.; Civil Action No. 85-CI-1759 was filed November 20, 1985.  Again, the press supported the Council's actions.  The Courier Journal argued that, "...unless the word 'efficient' is given an exceedingly loose interpretation, nothing fitting the description yet exists.  The wonder is that is has taken this long for anyone to mount a court challenge to Kentucky's ramshackle, inequitable methods of financing the education of its children." 
At the November 8th Council meeting, members also decided to send notices to those districts that had pledged membership but had not yet paid their dues.  The letter sent by Jack Moreland drew what perhaps should have been a predictable response from some districts.  A letter from Charles Parsons, Superintendent, Rockcastle County Schools, is instructive on this point.  In it Parsons explains, 
It seems ironic that we cannot pay a bill which is for the purpose of improving our financial status, but at this point in our budget we are not sure we will end the year in the black...I'm afraid to pay this right now until I can see how our balance looks next Spring.  I hope the Council can bear with me until later in the year.  

The Council understood and Moreland encouraged Rockcastle County to continue its support and "forward the money as soon as there is light at the end of the financial tunnel.”  
The winter of 1985-1986 was a cold one, indeed, for members of the Council in Frankfort.  "Angry members of the Senate Education Committee approved a bill forbidding school systems from using public money to pay the costs of suing the General Assembly, individual members or the Superintendent of Public Instruction."  Senate Bill 102 was clearly aimed at the Council and served to underscore the animosity of some legislators who thought the Council members ungrateful. 
The General Assembly was flexing its muscle.  The Council, however, thought that its best defense was through the House Education Committee chaired by Roger Noe of Harlan.  On January 27, 1986, Jack Moreland sent a memo to all Superintendents urging their support in testifying against the bill when it came before the House Education Committee.   Frank Hatfield, Theodore Lavit and others communicated directly with Noe, however, and were ultimately successful in convincing him to kill the bill in committee.  In a letter to Noe, Lavit asserted that the 
sponsors of this bill seek to curtail the efforts of poor counties of the Commonwealth to improve their education systems or to bring them up to the level of the wealthier districts.  The brightest children in some of these poor districts are not able to be accepted into the University of Kentucky, except as provisional students, simply because of curriculum deficiencies.  This is appalling...why [does] a child from Harlan County [have] to suffer a lower standard of education simply because he happens to...live in a poor county? 

More evidence of the hard feelings came from Hardin County where Superintendent and Council Vice Chair Steve Towler had come under pressure from Joe Prather, President Pro Tem of the Senate and a defendant in the suit.  At the February 19th special meeting of the Executive Directors (formerly referred to as the Board of Directors) Towler had indicated that Prather felt he was not properly notified that the group was going ahead with the suit. The situation was similar to the one some eight months earlier when Warren County Schools rescinded their membership in the Council.  Towler's explanation of this situation, which ended with his March 12, 1986 resignation as Vice Chair, is elucidating. 	
I ran into a little problem in my district... in that I had a very influential state senator.  Joe Prather was in the house for years and then he went to the Senate and became Pro Tem...  Joe felt like I hadn't communicated with him, and I hadn't.  I didn't see any real need to do that.  I don't know that it's the best approach to go into to somebody and say, ‘I'm going to sue you.’ 

He was named and the Governor was named.  And it took some nerve to do this.  We were kind of treading into some new territory.  And so when this thing was filed, I was there in the rotunda of the capitol and Joe Prather was up on the second floor and later it came to me that he was very upset that I hadn't told him about this.  

And in retrospect, I probably would have done that differently.  I would have gone to him...I guess I assumed that he knew...it was in the paper that our board had agreed to go along with this Council.  Maybe he just didn't put those together.  I had no reason to keep it a secret.  I liked Joe then.  I do now.  We just had a little bit of a disagreement on strategy.  Why did I not come to him?  That wasn't going to stop a suit had I gone to him.
	
Towler believed that Prather took his participation as a personal affront.  Hardin County’s involvement in a suit against “one of their own” was difficult for Prather to accept.  “I told Joe…We're not suing you.  We're not suing the General Assembly.  We're not suing the Governor.  We're suing to see if the system is right.  It's not you.” Kentucky had gone through years under a system that was getting no closer to producing equal opportunities for kids.  And Towler believed that education was the responsibility of the state, and something had to be done.  Towler later reflected on resolution of these events.
I still think, to this day, that if we had not filed this suit, we would not be talking about KERA and we would not be…debating whether we would be giving 15 or 20% salary raises in some districts or 10% in others, we'd still be talking and debating.

[Joe spoke] to our local board members, whom he knew very well.  Of course, the board was not backing off of our commitment to go through with this.  Obviously, when he expressed displeasure with the way this was done, and with me, for not communicating with him, I apologized to him. 
 
I went to his office in Frankfort, and sat down with him and said ‘Joe I'm sorry if I offended you. I only did what I thought was right, and our board did, for the kids of Hardin County.  It was in no way a personal attack on you.’  So, I think that we healed that up.  I think that to this day that's all bygones.  

But the board asked me, just as a gesture, to resign from the board.   He [Joe] never did ask me to do that.  It was strictly a discussion between my Board of Education and me.  They said, 'Can you think of something that will show him that we're sorry?'  And I said, 'Well, what about getting my name out of the limelight?'  And they said, 'That's Fine.'  So that was kind of our decision.  The Council had no problem with that.  I told them that I'd still be just as active as I always was because I was truly committed to the cause.  I still am.  

[Prather] told me later, and this is the kind of man he is, he said, ‘Steve, want you to know that I was wrong when I got upset about that.’  He said, ‘What occurred from all of that action was the right thing to do.  I’m not sure that litigation had to be filed to do it, but it did happen after litigation was filed.’ 

Bert Combs’ related his own humorous view of Towler’s difficulties with Joe Prather.  
Steve…thought the children of Kentucky deserved a better opportunity than they were getting.  It so happened that my friend and his friend, Joe Prather, was majority leader in the Senate.  And, so when we…filed [the suit], my friend Joe Prather, and he’s still my friend - but that doesn’t mean he’s always right, you know.  But he said, ‘This is a legislative matter and the judiciary ought to stay out of it.  And that Combs ought to stay out of it.  And if Combs was so damn smart, why didn’t he fix it while he was here?’  

It’s been about twenty-five years ago and if I’d ‘a been a fortune-teller, or sooth-sayer, I would have.  But, I didn’t have the wisdom of Solomon.  And neither did Joe Prather.

Relations between Council members and Superintendent of Public Instruction Alice McDonald continued to be contentious as well.  Tony Collins, Superintendent of Wolfe County Schools, had a heated exchange with Superintendent McDonald at a meeting of the Joint Education Committee.  As he described it,
Mrs. McDonald and I berated each other pretty heavily.  She said I had no business filing the suit.  It was the dumbest thing she’d ever heard of.  And I asked her to send her daughter up to Wolfe County to go to school.  

She said, ‘Don’t be silly.  My daughter is going to go to Duke University.  She needs a better education.’  

I said, ‘What makes your daughter any better than my daughter?  If my daughter’s not going to get an adequate education, why should yours get one?’  

The Joint Committee on Education berated me heavily and criticized.  So, I made them a deal.  ‘Any one of you, if you will get up here and tell me that students in some parts of Kentucky deserve an inferior education and other parts deserve a superior education, I’ll withdraw the suit.’  

And Representative Joe Barrow said, ‘Boy, he hit a nerve that time didn’t he fellas.  You’re crazy if you think I’m going to get up there and say that.  I’d never get reelected again.’ 

By the February 19, 1986 special meeting of the Council for Better Education Executive Directors, attorneys Debra Dawahare and Theodore Lavit were reporting that the suit had been assigned to Judge Ray Corns who had not, as yet declared himself ineligible to hear the case.  According to Judge Corns, 
When we got that case and had our first meeting, I told all the attorneys present, although most knew it, that I had been attorney 16 years for the Education Department.  I had known Judge Combs.  Of course, I'd known Bill Scent who represented the legislature for many years.  It's not uncommon.  These scenarios happen all the time in a small town like Frankfort.  You know the parties really well, the opposing counsel really well.  So I said, 'You know my various associations, if any of you feel uncomfortable with me hearing the case I'd step aside.'  

And they said, 'No.  We want you to hear the case and call it as you see it.'  So that's the way it came down.

Bert Combs had spent some time early on thinking about the best venue for filing.  Once it was determined that the suit would come in state court, it was only a question of which of two judges would be assigned to the case.  According to Combs,	
I was trying to get a feel for the prospects of winning if we filed such a lawsuit.  Of course, I considered where the case would have to be filed: if it was filed in federal system or state system.

It wasn't any accident because the law required that [if it was to be filed in the state] it [had to be] be filed in the Franklin Circuit Court.  Since the leadership of the legislature and the Governor, I thought, had to be parties, and they were made parties, and also we made the Superintendent of Public Instruction a defendant since she had announced her objection to any such ...  and so we filed it in the Franklin Circuit court.  Now, I knew there were two judges there.  And I knew that one of them was Judge Corns who had been an Assistant Attorney General assigned to the Department of Education and who knew the problems, and in fact participated in the writing of a book on school finance in Kentucky.  He had collaborated with Kern Alexander in a book on school finance.  I got into the matter enough to know that he had that background.  And I assumed that Judge Corns would be sympathetic to our cause, because I knew that he was aware of the problems, whereas another judge who didn't have that background would need to be convinced and perhaps would not have been convinced that he ought to take the initiative...

I didn't have any way to influence who got the case.  I was pleased when Judge Corns got the case.  It was a 50:50 chance.  They get these cases by lot.  I don't know what method they use.  I had hoped in advance that he would get the case. 
Through the Looking Glass, with Alice

Alice McDonald proved to be one of the more colorful characters in the saga of the Council for Better Education.  She served as Kentucky’s Superintendent of Public instruction from 1984 until January 1988, during the time of the Council’s formation and litigation at the Circuit Court level.  It is instructive to note that McDonald was a fierce opponent of the Council leadership and attempted on several occasions to intimidate the Superintendents and quash the effort.  She touted the virtues of Kentucky’s public school system but did little to move beyond the status quo.  As Superintendent she appeared less sympathetic to those pressing for improvements to the schools than she did toward maintaining her political relationships with the General Assembly.  Despite this, the troubles of McDonald’s administration contributed greatly to the elimination of the office of Superintendent of Public Instruction, which legislators ultimately came to see as part of the problem with Kentucky’s schools.  McDonald’s approach to her duties as Superintendent and her extensive use of Department of Education personnel in support of her own political aspirations stand in sharp contrast to the approaches employed by the Education Commissioners who would come later.  
McDonald had been a high school guidance counselor and mid-level administrator in the Jefferson County Public Schools but had also been very active politically with the Democratic Party.  Her entrance into the Kentucky Department 

of Education came from Raymond Barber who first approached her to manage his Jefferson County campaign.
Raymond Barber came to me - That’s a true statement.  You can ask him. - when he was running for the Superintendency.  In the primary, Taylor Hollin was driving him.  And he also worked for the Kentucky Department of Education.  In my administration he would have been investigated.  But in Raymond’s he was not.  Anyway, Taylor Hollin, who was with the Department of Education, drove Raymond down to spend a couple of days in Jefferson County during the primary.  Raymond called and asked to see me.  He came in and talked to me and asked me if I would support him.  I told him I probably wasn’t going to get very involved in this race because of the mayor.  John Y. [Brown] was running for Governor. And I wasn’t going to get very involved in the Governor’s race because I was Executive Assistant to the mayor [of Louisville, Harvey Sloane].  I was very happy and that’s where I wanted to stay.

McDonald ultimately did help with Barber’s campaign and after the election he made her an unusual offer.
Raymond called me and said he wanted to see me, came to Louisville - he came to me - after he was elected Superintendent and offered me the Chief Deputy position.  He said, ‘I need to hire a woman…I need somebody from Jefferson County…who’s an educator but who’s not in the fray’…At that time we had just merged and…anybody you picked from the Jefferson County school system had enemies.  …And, I understand that you’re a good administrator.’  And I said…’It would have meant a lot more to me if you had said, you’re a good administrator, and I need somebody from Jefferson County and you’re a woman.’  I mean, I guess there was just no other woman in the state.  Why he wanted me as his chief deputy is beyond me.

The Kentucky Democratic Party saw McDonald as something of a rising star until ethics problems began to surface late in her term.  Her own assessment of her performance in office was predictably positive.  She stated that, “by any standard of Kentucky history, this [1986-87] has been a period of progress.”  In 1987, McDonald described her ideas about the state of education in Kentucky in a foreword and afterword written for the book, From the Fort to the Future.  She described a relatively positive story that disagrees, at least in tone, with accounts by historians Thomas Clark, Lowell Harrison, James Klotter and virtually every other historian who has published on the subject.  For example, she asserted, “Long ago, dedicated citizens won the battle to convince their fellows that the education of all the state’s children was the responsibility of the state as a whole…[Kentuckians]…have led the way in many areas almost from the beginnings of our educational history.”  McDonald cited several examples of Kentucky’s pioneering leadership such as, the first to provide a state-supported school to educate deaf children, settlement schools which provided a model to be followed in developing countries, the first to teach adult illiterates to read and write.  
She claimed that individual Kentuckians were leaders in the education of black children and even concluded, “no significant educational achievement has ever been lost.”  Rather, she asserted, each educational leader, each innovator seeking ways to overcome obstacles and meet new challenges, has built on the accomplishments of the past. At the time Kentucky was mired in the bottom quartile of the states in most statistical categories. 
The Kentucky Personnel Board had received numerous complaints about McDonald’s conduct in office.  “Her critics charge[d] that she ha[d] hired unqualified political associates for key positions in her department and ha[d] granted contracts or fees to political supporters.  Personal items were printed for her within the department at state expense.” 
Despite the public criticism of her employment practices, Alice McDonald announced her candidacy for Kentucky Lieutenant Governor in the summer of 1986.  McDonald’s activities during her campaign led to an investigation by the Personnel Board.  The investigation found that employees were being hired for merit level positions at salaries “in excess of the maximum salary range,” excessive use of emergency appointments in a 12-month period that accounted for more than “80% of all such appointments in state government.”  The immediate naming of some of these individuals to merit positions compounded this offense.  It was alleged that this was “a frequent practice” of McDonald’s administration.  Employees were resigning “from non-merit positions to accept merit positions prior to merit certification” being processed, which was an indication that hiring decisions were probably being made illegally.  An investigative report dated December 11, 1987, and written by Investigating Examiner, Wilburn K. 

DeBruler,  indicated information was requested during the investigation that the Department of Education failed to provide.  
DeBruler’s own assessment of the situation indicated that some of these acts, while being contrary to compensation regulations were “approved and processed by the Department of Personnel” anyway.   In one instance he noted the Department of Education's “excessive use of emergency appointments to merit positions” which “the Department of Personnel has allowed…to occur without challenge or question.”  In another case, DeBruler noted “possible violations” of the merit selection process where, once again, “the Department of Personnel…allowed this procedure…without requiring…compliance with the law.”  His curious recommendation called for training for Department of Education so that they would stop “making requests which are not specifically allowed by law and regulation.”  DeBruler offered no specific recommendations to address what the Department of Personnel might do to refrain from approving such requests.  Instead he recommended a review and that the department “take such action as it deems appropriate.”    
DeBruler reported “A considerable number of individuals in non-merit positions were not performing the duties for which the positions [were] classified and compensated,” and many were “not working in the office” for which they were hired - in some cases for “several years.”  Some applications upon which individuals were hired appeared to “contain inaccurate or falsified information.” 
During the Personnel Board’s investigation Arthur Hatterick showed some interest in controlling information and limiting the scope of inquiries that individual Personnel Board members might make.  At the September 1987 meeting of the Kentucky Personnel Board, “Mr. Hatterick cautioned members that this was still an on-going investigation and that all inquiries be referred to him.”  Despite his admonishment to the members, Hatterick told the Personnel Board in October, that he had engaged in “various discussions with Mr. Yater and Mr. Woolums.”  Steve Yater was the Deputy Associate Superintendent of Personnel Management and had been authorized to act as attorney for the Department of Education.  Joseph Woolums was one of Alice McDonald’s Deputy Superintendents.  Hatterick admitted discussing “Stipulations” made by the Department of Education and “various options” regarding the Department of Education’s questionable use of federally-funded-time-limited (FFTL) positions.  Hatterick claimed that the “Stipulations were discussed solely for the purpose of expediting” the board meeting.  
Personnel Board attorney, Anne Keating, saw the situation differently, however, and complained that Hatterick’s offer of stipulations to Yater constituted “a violation of the statute relating to ex parte communications.”  Keating “pointed out that the department had gone on record in the past as to these kinds of investigations and the way in which they” were to be conducted.  Hatterick’s actions served to compromise any investigation.  She complained “the Department of Personnel had no information concerning the Board’s investigation until receipt of the order issued in September” and that now, 
The department was placed in the position to show cause based on an investigation which involved interviewing various employees who have answered questions without benefit of counsel; without a court reporter present to record testimony and that the department ha[d] no record of what questions were asked of employees or their responses.  

Steve Bolton, attorney for the Personnel Board, questioned Keating’s implication that there was “an impropriety on the part of Hatterick in talking with Yater and Wollums.”  Ms. Keating referenced KRS 18A.095(21) and stated that even “this proceeding (the discussion before the Personnel Board)...could be considered as such.”  According to the minutes of the special meeting,
Mr. Hatterick stated he felt no reason to rebut some of the comments made pointing out that some comments were inaccurate.  He stated that if in fact Ms. Keating felt that his actions were in violation of the law he welcomed her to file a complaint in court.  

Finally, the Personnel Board referred fifteen complaints (which, if confirmed, would indicate violations of criminal statutes) to then Attorney General Fred Cowan.  Cowan’s office conducted an investigation focusing on Kentucky Department of Education activities from January to July, 1987.  The Attorney General’s investigators found the Department of Education during McDonald’s last two years in office to be “primarily operated in the political interest of Alice McDonald and not in the interest of Kentucky’s children.”   
The summary report of the investigation (which is marked personal and confidential) was obtained by the author, along with notes from numerous interviews and miscellaneous financial records, under the Kentucky Open Records Act.  In the report, Deputy Attorney General David G. Vest, enumerated a laundry list of misadministration. “There is little doubt that…significant numbers of Department of Education non-merit employees devoted substantial amounts of state time to Alice McDonald’s campaign and to political fund raising,” Vest reported.  He stated that the “record reveals clear and convincing evidence that the McDonald administration engaged in a widespread ‘spoils’ system, wherein political allies…were rewarded…with little regard for Personnel Regulations.”  He also found, “There is no question that Alice McDonald surrounded herself with people who…did not perform the duties…for which they were receiving compensation.”  
Vest ultimately recommended against pursuing criminal charges against McDonald, however, citing several legal considerations.  Vest found “enough evidence to establish probable cause” for certain violations “which under current statutes were and are misdemeanors.”  He also noted that “the statute of limitations had run on virtually every allegation prior to the active involvement of the Office of Attorney General,” and that “in those instances where we can prove, without doubt, that a criminal offense was committed, we are invariably limited by the status of the offense.”  
In Vest’s opinion, the investigation was substantially hampered by bureaucratic foot dragging from Personnel Board administrators themselves, quite possibly in support of a spoils system of its own.  As Vest explained, 
Within State Government as an entity there are a group of politically astute bureaucrats that float from administration to administration and survive through political contacts.  At the time of the McDonald Investigation, the Governor had no right of succession and incumbent legislators provided continuity in state government.  Both the house and senate were, and had been for decades, controlled by one party.  I observed a strong connection and interaction between legislative leadership and certain politically active state employees who formed almost a sub-culture within state government that relied, to a great extent, on the continuing power of certain key legislators for their existence.  I would refer to them as “shadow employees.” 

These people operate in the same manner at the end of each administration.  They slide into positions protected by the merit system in sufficient time to [have] cleared probationary status before a new administration takes office.  They cannot be fired absent cause and the Personnel Board historically protected these people out of deference to these key legislative leaders.

By its nature the State Personnel Board can be a powerful instrument within state government.  For many years the Director of the Personnel Board was Arthur ‘Dutch ‘ Hatterick.  William DeBruler, an attorney, served as Dutch’s right hand man.  Both men were well aware of the system in place and survived by playing within that system.  I cannot imagine that either would have failed to recognize the political connections associated with many of the “shadow employees” involved in the McDonald administration.

Once the investigation was referred to the Attorney General’s office, the Personnel Board administrators, Vest recalled, “then placed every obstacle available in order to keep us from reviewing their work.  We finally had to resort to threats of subpoena in order to get a glimpse at their records.”  According to Vest, 
Hatterick made the OAG aware of Personnel’s findings with a simple transmittal letter saying, in essence, ‘here you go, do something.’  I do not remember DeBruler’s Report being part of that original correspondence.  In fact I don’t think we saw the report or Personnel’s investigation files until well after the Statute of Limitations had run and we had no chance of prosecution under state law…I am still not convinced that we ever saw all of the Department of Personnel’s files on Alice McDonald. 

There is no question that Hatterick’s action in delaying delivery of the report from December 1987 until March 1988 compromised the OAG’s ability to prosecute.  Given the unexplained delay and Personnel’s lack of subsequent cooperation with us, there was never a question in my mind that the McDonald Investigation was passed to us to suit someone else’s purposes. 

The Attorney General’s investigation was also hampered by the fact that other administrations had acted in the same fashion, if on a much smaller scale.  As Vest reported, “the ‘traditional’ nature of much of the activity conducted by employees of the Department of Education by and on behalf of Alice McDonald…is neither illegal nor out of the ordinary for state government.”  Furthermore, apparently most of what McDonald did, was done with the approval of the Personnel Board and very likely had Hatterick’s signature on every one of them.
Vest lamented that the “extremes exhibited by the McDonald administration may be abhorrent but are only to be expected” when a constitutional officer’s power is unchecked.  In this regard it was noted that the State Board of Education was found to have exerted “little, if any, restraint” on McDonald.  In the end, while McDonald “may have engaged in activities which would constitute felony offenses,”…there was “simply not enough to go forward with any particular instance where the statute of limitations does not bar the way.”
Vest concluded that his investigation “revealed widespread abuses” of the office of Superintendent of Public Instruction during what was “arguably the most corrupt” administration of Alice McDonald.  Vest offered four recommendations for the future to prevent “the kind of abuses experienced during the McDonald administration.”  These recommendations would collectively prevent the operation of a political spoils system and included the increase of the status of 

personnel violations from misdemeanors to felonies.  The Alice McDonald case was offered to the U. S. Attorney for the Eastern District of Kentucky who declined to even review the matter.” 	
The public, however, did respond.  Vest recalled the embarrassing treatment she received at the 1987 Kentucky State High School Boys Basketball Tournament.  At half time of the championship game, McDonald was scheduled to present the trophy for the best cheerleading squad in the tournament before a packed house at Rupp Arena. “I really felt sorry for Alice, although I had done this investigation…she had turned into such a pariah that…when they introduced her, everyone stood up and booed to the point that she would not come out” from the concourse.  “Where Sally (Vest’s wife) and I were sitting we could see her, and she never came out and one of her deputies made the award.  I had never seen that happen with that many people in a public arena.”
In an interview conducted in May 1990, Lexington Herald-Leader Editor John Carroll recalled McDonald’s administration with a mix of hope and disappointment.
I thought Alice McDonald came in with a very clear understanding of what had to be done and what was important.  And she was pathologically political.  She could not refrain from shaking down employees, and coercing people, and playing political games.  She had a perfect opportunity to ride a white horse.  And, every now and then you see somebody who just is constitutionally incapable of doing things properly and she was one of them.  I regard her recent arrest for shop lifting as just more of the same.  I think she’s got something in her, in her psychological make up that doesn’t allow her to do things properly on a consistent basis.  And so, she lost an opportunity that she had to be effective.  I liked her when she started out.	
Chapter Summary
On December 31, 1983, incoming State School Superintendent Alice McDonald, released veteran school administrator and financial expert Arnold Guess from the Department of Education.  This act freed Guess to pursue a long-standing problem in Kentucky – inequitable and inadequate funding for the public schools.  He called together a group of twenty-eight School Superintendents under the name of the Council for Better Education and together they challenged the legislature to do more for Kentucky’s children.  With outstanding technical consultants and legal counsel, the Council, lead by a little core of truly convicted people lobbied the legislature for change and threatened to sue.  The Council met with hostility from legislators who did not want to be blamed for the existing conditions, and from the State Superintendent whose job it is to nurture the school system.  Instead, the Superintendent attempted to use the Department of Education as her own political springboard.  When lobbying efforts failed, the Council filed suit.      
The Council greatly benefited from powerful outside forces including the press and a host of civic, business and education groups - all pressing for better schools.  But despite this groundswell, the legislature did not go far enough to satisfy the Council or forestall litigation.