Chapter Four
The Council's Case

The ultimate decision to file in a state court rather than a federal court was a matter of legal necessity, not one of preference.  While Combs was ultimately satisfied with Judge Corns, he wondered whether they would be better off in a federal court.  As he explained,
If they could bring a suit in federal court they would have lifetime federal judges who didn't have to worry too much about taxpayers, but could look to the law and what was good for the country ... other things being equal I would prefer going to a federal court.  But I thought we would lose in view of the holding of the Supreme Court in the Rodriguez case…Kentucky judges, even appellate judges, are elected and that they have to look to the taxpayers for reelection just like a sheriff or jailer does, and that would be a very difficult process.

But, Rodriguez was too large a hurdle in Combs’ opinion, so it was decided to try the case in Kentucky.  With that decision behind him, Combs began to formulate a legal strategy upon which to build his case.  In doing so, he looked first to the law but also at the politics surrounding the conduct of the case.  Combs not only had to consider whether his clients had the mettle to withstand the process, but he also knew the state-level politics involved in a case like this would be considerable.  Lead counsel, Bert Combs, and co-counsel, Debra Dawahare, discussed the construction of their case.  According to Combs,
The first hurdle you…attempt to get over is ‘Do you have a…justiciable lawsuit?'  Do you have a factual situation, which the court would determine was a justiciable case…Assuming a justiciable issue; are you on the right side?  Do the facts support what is your version of the case? …I did make the decision that it was a justiciable issue in that it presented a valid constitutional question.  
	
Next Combs had to determine who were the real plaintiffs and who were proper defendants?’ Combs explained,
I knew that this suit would be strongly defended, perhaps bitterly defended.  I knew that certain members of the General Assembly would consider themselves 'offended' that someone would have the audacity to sue, make them defendants, and allege that they had failed in their constitutional duties.  I knew that every technical question that an ingenious lawyer could dream up would be raised.  

Choosing plaintiffs was a crucial part of structuring the case.  The choice had to satisfy certain legal requirements.  Specifically, the Council had to identify individuals who had been damaged according to the evidence that would be produced in the trial court.  Combs talked about what he looked for in the plaintiffs.
I wanted someone tough enough.  I wanted…people who would not succumb to pressure.  But…more importantly I wanted some people that very clearly had a complaint, people who were being prejudiced - damaged, by the failure to have an adequate and a uniform system of schools.

I considered that the students were the real plaintiffs in this case that they were the individuals who were being injured by reason of an inadequate school system.  But I wanted to…have enough plaintiffs so that even if they knocked out two, three, four that I'd still have enough plaintiffs.  And so we made the Council for Better Education a party and, in a footnote, named each school district, which was a member.

But I didn't have authority to name all the students in these districts.  I thought if I should attempt to do something like that the defendants would get a hundred students somewhere and say, 'No, we don't want any part of this suit.'  And so we selected, we investigated, and looked for students who fit our description.  Children who were being discriminated against and parents of those children who were willing to have their names used as parents of injured children...They did knock out a few.  Some of them didn't testify.  Opposing council said that if they didn't testify that they had abandoned the suit. 
 
The basic plan was to show the court particular students from districts across the state who were receiving an education significantly inferior to that received by other Kentucky students.  According to Combs,
The crux of the matter was that we convinced the court, as to plaintiffs, that there were some children who had some standing and who were being discriminated against, regardless of school board members, regardless of Superintendents, regardless of parents - and the defense was that these people would have enough money if they didn't waste it.  Poor management and worse than that, you know, under the table stuff.  And I always came back to this. Well, here's a child, 8yrs old, Jimmy Duff.  Has Jimmy Duff done anything?  Has he stolen any money?  Has he exercised any poor management?  He is the plaintiff. 
	
The legal team vacillated with regard to whether it would be filing a class action or not.  The case started out that way, but as Dawahare explains, they gave up on the idea.  	
We started out with this as a class action, and then more or less just abandoned that notion.  [We] just went ahead with what we had, assuming that it logically followed that if it applied to these students, the same theory applied to them all.

Since we were having a bench trial, and since the students really wouldn't have a lot to say except, ‘Here I am.  I'm 14 years old.  I know that over in the next district they have all this stuff I know I'd like to take and I can't because I live over here.’  That's really about all they can say.  We did put the kids up for just a little while.  We didn't want to belabor that.  We did have their parents on as ‘next friends’ but we didn't emphasize that too much.

The complaint was filed on May 28, 1985.  By the time of the filing the Council had obtained a rather long list of plaintiffs who joined in the suit, including the following:
		The Council for Better Education, Inc.
		The Boards of Education of Dayton Independent
		Elliott County
		Harlan Independent
		Knox County
		McCreary County
		Morgan County and
		Wolfe County School Districts and
		Michael Wilson
		Lisa Marie Gilreath, 
		Greg Chaney
		Courtney Cox
		Le Ann Simmons
		Nicholas Underwood
		Paul Lewis Wesley
		Brandon Kaye Thomas
		Jennifer Paige Thomas
		Jeffery Oliver
		Andreana Brewer
		Brian Brewer
		Brian Carter Wells
		Sean Jarrells
		Michael Williams
		Sharon Duvall
		Tammy Lee Utchek
		Mary Nikole Williams and
		Roma M. Adkins, all respectively by their parents as next friends.  An averment was made in the complaint that these student-plaintiffs were not only suing as individuals but also represented a class of all similarly situated students attending so-called poor school districts.   
The Council was immediately forced to fend off motions from the defense that challenged the named plaintiffs.  Debra Dawahare recalled, 	
The first thing we got hit with as plaintiffs was a motion to dismiss.  The defendants were saying that we did not have standing, that people in our position should not be permitted to bring a suit of this kind because the school boards, you know, all of the people except the individual plaintiffs, were creatures of the legislature, of the state.  'And you can't sue your creator,' they said.  We said, 'Well, everybody else has been doing it.  Why can't we?'

Eugene Binion recalled that he helped recruit several of the plaintiffs.  He identified potential plaintiffs based on their interest in the issue and their willingness to participate in the case.  He knew that witnesses might have to miss a day’s work and be prepared to testify quickly.  Several individuals had direct connections to the schools.  Binion noted, 
We got criticized for those people being involved simply because they worked for the school system.  But who else would they work for in a county like this.  If you go out here and choose anybody to do anything they’re going to have some connection, in all probability, to the school system.  They’re either going to be a student, or they’re going to be an employee or they’re going to have a relative who is an employee.  So that never bothered me at all about the fact that a school principal’s daughter was one of the litigants.  She had the same rights to expect a good education from this system as the local banker’s daughter would. 

On Monday June 2, 1986, during a pre-trial conference, Judge Corns gave the go ahead to the suit having settled on the issues of plaintiffs and defendants.  At that time Judge Corns heard oral arguments from the defense and required the addition of the State Board of Education as an indispensable party to the suit.  He also overruled a motion from the defense for a summary judgment and concluded that the plaintiffs did have proper standing to prosecute the cause of action.  As Dawahare related, 	
I think Mr. Rose and Mr. Blandford took [the suit] somewhat personally…It seems to me that after that initial volley, when they tried to just laugh it out of court, there really wasn't too much after that.  Discovery commenced and was had and we really moved through this quite expeditiously.  

The plaintiffs faced challenges in naming their defendants as well.  It turns out that in the history of Kentucky jurisprudence the issue of how one goes about suing the General Assembly had remained relatively unexplored.  This proved to be an important factor in the case.  As Debra Dawahare explained,
As for the defendants…well, just about everyone in sight.  I thought certainly that the leadership of the General Assembly had to be made defendants because we were complaining that the General Assembly was violating the constitution.

[The General Assembly has] 138 people.  I knew that this case would rock along for a while.  This kind of a case always does.  I knew there'd be resignations, there'd be elections, and deaths, and so on.  If we tried to make 138 people defendants, I guess we still would've been in court because we would had to have brought them up to date, you know, currently.  

And that was one of the questions raised, that we couldn't sue the General Assembly except by suing each member.  Some of the judges were impressed by that.  But, again, as a practical matter, we just couldn't handle a case like that.  We did have some authority, that a body, Congress, for instance, the House of Representatives in Washington, has been sued, on constitutional questions in particular, by making the leadership of the body a party.

Dawahare continued, 

I knew that we had to make the Governor a party because the constitution requires the Governor to report to the General Assembly on the state of the Commonwealth and to make recommendations to the General Assembly.  I knew that it was the constitutional duty of the Governor to talk about education and financing education.
  
We made it very clear in the complaint that all of these people were made defendants in their official capacity not as individuals - that we were not seeking relief against them as individuals. 

Assuming the plaintiffs had standing and were suing the proper defendants, an even more difficult issue involved the relief sought by the plaintiffs.  What can the court direct the legislature to do?  As Dawahare explained,
We realized we had a separation of powers problem.  We wanted, all along, to avoid making suggestions as to what the remedy might be but only to focus on the fact that there was a great problem and an unconstitutional situation.  It's sort of a legal maxim to sue everybody that you think might be responsible.  The judge will sort the souls.  Since this was new and we were paddling in uncharted waters we wanted to make sure we had in all the parties that conceivably might be necessary, really for the purposes of enforcement, if we got a judgment.  We weren't even sure how to go about suing the legislature.  It's not something that's done very much.  We found some Federal cases where it would be some person versus Tip O'Neill.  You always sue Congress by suing the Speaker of the House and the President Pro Tem of the Senate.  So we followed that model rather than taking on the unwieldy task of trying to name the whole legislature...I mean, the paperwork alone would have taken years. 

With these threshold issues decided, the Council began building its case.  This required Combs and Dawahare to assign roles to each of the plaintiffs’ witnesses.  Their testimony was designed to do a particular job or cover a particular issue.  As Dawahare related, the Council	
needed Arnold [Guess] to give everyone an overview - a background of the big picture.  As it turned out, Arnold's deposition was absolutely crucial because on the day of the trial, when he was to be called as the first witness, he was in the hospital...so we read his deposition.  Jim Melton was going to tell us about the tax structure and what, in that, was harming the schools.  [Consultants] Kern Alexander and [Richard] Dick Salmon were going to tell us about what educational scholars would say about this kind of phrasing.  Dick was going to do the statistical correlations and basically that kind of real hard demographic work.  He did that largely out of the kindness of his heart.  I mean he was paid but certainly not what he usually charges.  He did us a very great service.
	
Some students and parents also testified.  Dawahare realized that the students could not offer much in the way of testimony.  However, some parents were able to demonstrate to the court how the schools had remained relatively unimproved over many years.  Dawahare related, 
One [parent] I remember talked about how he'd gone to school in a particular district and now his kids are going to school there...And to his amazement nothing had changed.  It was the same as when he had been there.

The plaintiffs operated on a relatively small budget and this prompted an unusual decision not to depose the other side.  As Dawahare explained, 
Curiously, in this case, instead of deposing the other side, which is what you usually do to find out what they're going to say, we deposed our own, because we wanted to make sure we had a good foundation.  We didn't [depose the other side].  We were operating on a really low budget so it's kind of an old fashion trial in that regard.

But the Council also had a very helpful resource that did not cost a penny.  That was the Prichard Committee and its relentless public support for the improvement of Kentucky’s schools.  Robert Sexton talked about how the Prichard Committee’s involvement. 
It was actually when the suit got going, which would have been…in ’85 or ’86, after [Ed] Prichard was dead, that it became a bigger thing.  It was a real lawsuit then.  And that time, Combs was in touch again.  I met with him several times on the suit.  He used me as kind of a – I helped get data, and so forth.  

I continued to meet with Combs.  [I] met with him and several other folks.  We would gather together to talk about the briefs, the remedies at all stages.  [I] testified in Judge Corns’s court, using the charts we had used in all our public presentations, that showed how poorly Kentucky was doing - basically national rankings and things like that.  We were part of it, but never central.  We never became a plaintiff.  

But this was exactly what the Council needed.  Dawahare explained what Sexton had to offer to the plaintiff’s case.	
We wanted [Sexton] to present the poignant picture of what these statistics really meant.  Sexton had zingers.  You know, he had good headline things, like ‘the most illiterate populous in the country,’ and ‘in this county 48% can't even read.’
	
The presentation of evidence included a substantial amount of quantitative data.  Much of the most compelling testimony, however, came in qualitative forms – stories and pictures of deplorable conditions existing in some Kentucky public schools.  Dawahare recalled,
Frank Hatfield...[and] a lot of Superintendents got up.  That was really, I think, the most colorful testimony...  Talking about these horrible roads they had to drive on and that's why they spent so much on their school buses...  Little kids were selling sponges and things so they could buy air conditioners... 
	
The summer of 1986 was used to gather data and clarify the legal strategy the plaintiffs would employ.  During this time, Richard Salmon gathered information with which to compare the course offerings of every Kentucky school district.  By the end of November, Frank Hatfield had prepared a group of Superintendents to testify including Rayden Hammers of Butler County, Clarence Bates of Wayne County, Richard Bowling of Leslie County and David Webb of Edmonson County.  The legislature had also created a Management Assistance Program that identified a number of Council member districts as needing assistance, inferring that they were being mismanaged.    Hatfield and Guess asked Combs to consider whether the list of schools would provide additional evidence supporting the equity argument.  However, does not appear Combs used this argument at all. 
Through 1987 to April 18, 1988, when final arguments were heard, the long legal processes ticked quietly away.  Other than case preparation, the Council generated very little activity and did not meet again until July 19, 1987.  Council correspondence was sparse during this time.  Tony Collins in Wolfe County and Alex Eversole in Jenkins Independent photographed representative school buildings to be used as evidence in contrast to similar photographs taken in Ft. Thomas.  Depositions were taken and the Council made another presentation to the Kentucky Association of School Administrators.  At that meeting, the Council leadership reorganized to deal with the retirement of Frank Hatfield from his Superintendency in Bullitt County.  Jack Moreland was elected as the new President; Eugene Binion was elected Vice President and Harrison County Superintendent, Martin Carr was elected Secretary/Treasurer.  

Efficiency, Adequacy and Equity

At the heart of the case of The Council for Better Education v. Collins, et. al. is the definition of efficiency and its relationship to the issues of equity and adequacy.  Clearly, when the Council leadership first approached Bert Combs with the idea of filing this suit, equity was foremost in their minds.  Indeed, several of these men have said privately that if the legislature had only funded the Power Equalization Program to a significantly higher level, this suit would have simply gone away.  As Combs began to look at the issues, however, the focus changed.  Combs remembered, 
I pointed out to them early on that we had a better shot on adequacy... The word efficient clearly meant adequacy, in my opinion...and the uniformity thing came into being by reason of the phrase 'throughout the state,' which was not as mandatory.

The [Council leaders] had no reluctance [on this point].  They were strong on both points.  I think they were more conscientious of the lack of uniformity originally, than they were that the system statewide was inadequate. 

Debra Dawahare coined the notion of a “Robin Hood Theory” of equity, and while treading dangerously close to suggesting to the legislature the appropriate remedy, argued before the court that this theory provided no solution to the problem.
[The case was argued from an adequacy point of view rather than equity] because we didn't want anyone going off on the idea that you had to have equitable mediocrity...that you had to take money away from Jefferson County so that Martin County could have more.  Our theory all along was that no district in the state was over funded.  Possibly, as compared to Connecticut, we're all a mess.  It's clear that we don’t want to do that.  But there has to be more of a congruence than there is.  There has to be less disparity than there is.  So if you're not going to take things away from the richer districts, it's logical that you must put a floor under the poor ones.  

Perhaps it was [a suggestion of remedy to the General Assembly].  We, at no time, said, 'Legislature, you must not do this.'  We did make statements, particularly to the media that our theory in this case all along is, 'Raise the tide and all ships will rise.' 
	
In his June 1987 deposition to the court Dr. Kern Alexander, then President of Western Kentucky University, testified that efficiency means more than equity.
The word 'efficient' is probably given the best discussion in the New Jersey case of Robinson v. Cahill, wherein the State Supreme Court of that state held that the system of financing in New Jersey was unconstitutional.  They elaborated on the term 'efficiency' and in fact indicated that it meant more than simple equality or equal distribution of resources.  It meant, in addition to that, the leveling or evening-up for children that have educational deficiencies. 	
	
The Council for Better Education ultimately sought a declaratory judgment, which was presented in the complaint in three counts.  Count one stated "under the Constitution of Kentucky, the creation and maintenance of a statewide system of common schools is expressly made a responsibility of the Commonwealth under section 183."  The complaint then goes on to state that 
[T]he General Assembly and the Executive Branch have assumed responsibility for and control of the structure of the public schools...[and that accordingly]...the total financial resources available to a school district [are] dependent upon the assessed valuation of property per pupil...[in which there are] gross disparities, the consequences of... [which] are devastating for thousands of Kentucky school children, and for the Commonwealth as a whole. 

The plaintiffs further complained that, 

Property-poor districts and the school children they serve are irrationally trapped in a system which makes the scope and quality of education provided depend first on local assessed property values, and then limits local taxing powers so that the tax base in a property-poor district cannot effectively be reached. 

Finally the complaint states that,

Under Kentucky law, school children have a substantial, fundamental interest in and right to adequate educational opportunity...[That] the plaintiff school children and the class they represent are arbitrarily denied access to adequate educational opportunity, in violation...of the fourteenth amendment of the United States Constitution, and of Sections 1, 3 and 183 of the Kentucky Constitution.  

Accordingly, the plaintiffs asked for the following relief:  
That the court declare the present statutory structure for funding public school in Kentucky unconstitutional... [that the various defendants be enjoined by the court] from implementing the unconstitutional educational funding statutes currently in effect in Kentucky...[that the Governor be required to] call for a special session of the General Assembly...[that the President Pro Tempore of the Senate and the Speaker of the House] place before the General Assembly common schools legislation which will comply with the constitutions of the United States and the Commonwealth...[and that] the General Assembly...increase the funding for public schools in an amount sufficient to provide an equitable, adequate and efficient funding program for all school children of the Commonwealth of Kentucky.  

Even after the filing of the complaint and all of the long hours of planning and strategy that went into that effort, the plaintiffs’ counsel had mixed feelings about their chances.  Debra Dawahare recalled her reluctance at the time:
I never believed we'd win.  I didn't think this was a cause that had much future.  It just seemed to me that it was not the kind of thing that you could absolutely support in a hard-core way.  It seemed to me that it was going to be very hard to show that there was a direct correlation between money and the quality of education, or the results.  For example, if one assumed that Kern Alexander, Judge Combs and I are all successful results of the school system, more or less - we all went to public school - well, look where we went.  Judge Combs went to a one room school somewhere in...Clay County.  And Kern Alexander's from Marrowbone, Kentucky.  I don't even know where that is.  It might be Greenup County.  It's certainly a poor area.  And I went to Danville High, which probably was the height of sophistication compared to those two.  And arguably, if we'd all gone to ideal schools, you know, maybe we would have all accomplished more. I don't know.  But it just seemed to under cut our very premise. 

Combs was more confident but for different reasons.  From the start, he clearly understood that he was involved in a multifaceted effort.
I thought we were entitled to win.  I, as most lawyers imbued with their own rhetoric, develop a feeling that they're entitled to win.  [I thought that] if [the case was] present[ed] properly and [we] got the right judges - we'd win.  A judge is a product of his environment and his heredity.  The problem was not that these judges were not willing to face up to their responsibilities.  The problem was a natural reluctance of the judiciary to infringe on the jurisdiction of the legislature.  I had the best case on the law.  Psychologically and politically I had a weak case. 

As the legal wrangling began, the defense made its positions known through its Answers to the Council’s Complaint.  The defense attacked the plaintiffs on several fronts including the court’s jurisdiction, the plaintiffs’ standing and whether they had the authority to sue to General Assembly. As Combs explained,
The answers filed by the various defendants were basically identical.  It was pled that the complaint failed to state a claim against any of the defendants; that the court had no jurisdiction because the subject matter was purely a 'political' one; that all school boards should have been joined as parties [to the defense]; that all members of the General Assembly (1986) should also have been joined as parties [to the defense]; that all plaintiffs lacked standing to bring the action; that, specifically, the plaintiff Council for Better Education, Inc., had no legal authority to sue; that the plaintiff school boards similarly had no legal authority to sue; that a class action was improper; and as would be expected, the defendants denied all of the alleged constitutional violations and the facts underlying such alleged violations.

The defendants also filed a self-styled 'affirmative defense' claiming that education reform laws passed by the General Assembly at a special session in 1985 and various budget changes and other educational laws passed by the General Assembly at its 1986 regular session inferentially corrected the situation alleged in the complaint.  Reference was also made to past legislative efforts of the General Assembly in the education field, presumably to further demonstrate the General Assembly's compliance with its constitutional mandate. 

The defense made much of the fact that several of the plaintiff districts never levied any of the permissive taxes, claiming that if they had, the disparities would not have existed.  To punctuate its argument, the defense asked for certain facts to be stipulated.  In addition to this response, the defense asked plaintiffs to make certain admissions including the fact that none of the plaintiff districts (Elliott County, Knox County, McCreary County, Wolfe County, Dayton Independent or Harlan Independent) had ever levied any of the permissive taxes allowed by law.  
Bert Combs had arranged for the Prichard Committee to file a brief of amici curiae supporting the Council’s position.  Governor Combs seemed to be in a particularly advantageous position to do this.  
I'm a member of the [Prichard] Committee.  They meet here occasionally.  Bill McCann  [fellow attorney with Wyatt, Tarrant and Combs] is a member.  He used to be President. Robert Sexton, I knew, believed in our cause and testified...very effectively.  I'm sure I said to the committee that I thought this was an appropriate opportunity for the committee to take a stand that they did have the privilege of filing an amicus curiae brief.
The Prichard Committee was accustomed to making public statements on education issues.  The support of the Council’s position provided yet another opportunity.  As Sexton recalled,
The Prichard Committee decided that we needed to say something.  So we did decide to write an amicus curiae brief.  We asked Phil Shepard, who had been Prichard’s law partner and Phillip Lanier who was one of our members to draft an amicus brief, and basically argued that adding more funding alone was not the answer to improving education in Kentucky.

The brief filed on March 9, 1988 by Philip Lanier and Philip Shepherd on behalf of the Prichard Committee advocated the following:  
I. This court should recognize education as a fundamental right under the Kentucky Constitution; any legislation placing a discrete class of children at a disadvantage in their ability to obtain a meaningful public education should be subjected to the strictest constitutional scrutiny...  II.  If the constitutional minimum of an 'efficient system of common schools' has been met, then the court must decide if the legislature has adequately funded the system it has designed... [and] III. This court should mandatorily enjoin the state Board of Education to enforce adequate standards governing expenditure of school funds if it accepts defendants' argument that the lack of educational achievement is due to wasteful practices in the plaintiff school districts.  

The brief concludes, 
[We] respectfully urge this Court to hold that education is a fundamental right under the Kentucky Constitution, to declare that the constitutional obligation to "provide for" an efficient system of common schools has not been met, and to reject the defendants' attempt to assert that waste and mismanagement of local school districts provides a defense to the plaintiffs' claims that the constitutional mandate for public education has been violated.  

By the time of the final oral arguments in Franklin Circuit Court a statewide election had been held, and on March 28, 1988 the plaintiffs entered a motion to substitute, naming new defendants.  Newly elected Governor Wallace Wilkinson replaced outgoing Governor Martha Layne Collins.  John Brock replaced Alice McDonald as Superintendent of Public Instruction. Legislative officers and State Board of Education members were also substituted.  Judge Corns postponed arguments from April 5 until April 18 in order to allow new defendants some preparation time.
On April 18, 1988, oral arguments were heard before Judge Corns.  The defense immediately asked for a summary judgment, based primarily on the claim that no relief could be granted against the General Assembly because of the lack of service on all 138 of the members.  The defense also asserted the parties lacked standing or legal capacity to sue.  Corns overruled the motion in its entirety and the testimony began. 
Scent’s defense was not nearly so involved as that of the plaintiffs.  The crux of his argument was that inequities were the product of failure on the part of individual districts to levy permissible taxes and widespread mismanagement.  Scent recalled,
We didn’t have an expert come in from out of state, or even in state for that matter, and give an opinion other than [Joe] Gormley [Superintendent of Woodford County].  I don’t know that we could have found anybody to come in (chuckles) and testify for us.  I made no effort to do it.  I really felt like the only defense we had was the one we made.  The only way it could be presented was the way we presented it, making Woodford County the benchmark and showing what could be done with relatively few dollars. And despite House Bills 1 and 44 and the scarcity of population, and the low property tax assessment, what could have been done if they had just enacted a utility gross receipts tax.  

Of course one of the things I tried to do with the Superintendent’s and Assistant Superintendents who were called was to show how they had not taken measures to correct deficiencies in their own systems.  Most of them wouldn’t even propose a Utilities Gross Receipts Tax.  

Scent’s defense relied on the court to see Kentucky as a poor state and therefore hold the state to a lower standard that reflected that poverty.  In Scent’s view,
I felt that all of the statistics showing the Kentucky was 48th here, or 43rd here, or 41st there should be considered in the context that Kentucky was also 44th or 45th in per capita personal income.  And, there were a lot of other financial demands that had to be met by the General Assembly other than education.  In that context, they had made a good effort for education, particularly in the ‘86 special session.  There was just no basis for holding the system unconstitutional.

I think where the plaintiffs really fell down in their proof was that where the system did fail to meet constitutional muster was in those districts that were so under-financed compared to the wealthier districts.  That’s where the inequality was.  Not between the average in Kentucky and the average in other states.  

Even despite House Bill 1 and House Bill 44, the failure to adequately finance the schools was just the refusal on the part of the local school boards to do the things that could have been done.  They could have put in a Utility Gross Receipts Tax, for example.  That would have been a big help.

We used Woodford County system as our benchmark comparison.  Here was a very very wealthy county that made a very poor local tax effort.  They did not have much more money than these named plaintiff county districts.  The difference Woodford County did have, that these counties did not have was a Utility Gross Receipts Tax. And, Woodford County had a very good system and put out a good product, and so forth.  

While the trial continued, the General Assembly met again with its new Governor Wallace Wilkinson.  Wilkinson had developed a reform plan unilaterally, and members of the legislature did not embrace it as the Governor had hoped they would.  There were also political issues important to the General Assembly to which the Governor was apparently not sensitive.  At one point Wilkinson made it clear that the only reform plan he would support was his own.  Don Blandford thought that Wilkinson’s personality made it difficult for the General Assembly to operate as equal partners and probably caused the ultimate defeat of Wilkinson’s Education Reform Plan in the 1988 session.  Blandford recalled,
The Governor had an Education Reform Program.  I never did know exactly what it was, to be honest with you.  He and Jack Foster had drawn up an education reform program without any legislative input, without any legislative involvement - period.  It was one of those things.  Jack Foster sends a letter up one day and says, ‘Here’s our reform package.  We want you all to go out there and pass it.’  We just felt like it needed to be a more comprehensive package, more involvement of more people.  You know, school boards, KEA, PTA and all of these people weren’t involved in it and they were a little bit leery of it.  The Governor had the plan and he did not sell it to the satisfaction of the General Assembly.  It didn’t fair very well.

According to Robert Sexton, 

Wilkinson and the legislature were at such loggerheads that they didn’t want him to take the lead on education.  They didn’t want him to get the credit.  They didn’t trust him.  …He had run as a no-tax-increase governor.  So he kept saying, ‘I will increase taxes if you show me results.’  And the people who opposed him in the legislature were saying, ‘We won’t go along with that.’  

Superintendent of Public Instruction John Brock had just previously been the Superintendent of the Rowan County School District and a member of the Council for Better Education.  Evidence suggests that he was fully supportive of the Council’s objectives, although he was not part of the inner circle who conducted most of the official work of the group.  Brock seems to have suffered the most, in terms of personal setbacks, for his participation in the Council.  Despite his election to state office, he was greatly marginalized by both the Governor and the General Assembly from the start.
Former University of Kentucky Assistant Professor, Dr. Steve Clements offered several reasons for this in his 1998 dissertation.  First, the growing consensus was that the Kentucky Department of Education “was part of the problem rather than a viable source of school improvement ideas.”  Alice McDonald had vigorously promoted reform ideas during her Superintendency, but her other failings produced a more negative perception of KDE than her proposals could overcome.  In the end, McDonald’s behavior provided much of the basis for Kentucky’s shift to an appointed Commissioner.  Brock’s lack of an agenda did nothing to dissuade the legislature. Finally, the Kentucky Department of Education came to be seen as “just another interest group“ swept aside in the debate over school reform.
During his campaign for the state Superintendency, Brock rose in prominence, but once elected, he never seemed to become a force.  He did not come into office with a well-defined plan and apparently had made some enemies along the way.   One such enemy was Roger Noe, the Chair of the House Education Committee, whom Brock defeated in the Democratic primary.  According to Clements, “Noe had considerable disdain for Brock during and after the primary, and had no intention of allowing him significant influence in reform matters.” The Governor’s heavy-handed tendency toward unilateral decision making and the General Assembly’s flat rejection of the Governor’s plan also tended to leave Brock out of the debate.  “Brock was disliked personally by many members of the Wilkinson Administration,” and he was not consulted as plans were developed.  The growing tensions between the Governor and the legislature not only took center stage – it seemed to be the only show in town.  

Lexington Herald-Leader Editor John Carroll, described Brock in very modest terms,
I think John Brock has been ineffectual.  He seems almost a bystander in education.  When he tries to seize on issues like family values where he can be a champion of virginity and not letting kids get any kind of training in reproduction and so on, and meanwhile the schools educationally are poor.  I don’t think he’s done anything.  I don’t think he’s done anything particularly bad either.  I just don’t think he’s been a force.

Cut out of the reform debate and lacking his own plan, Brock decided to go in a different direction.  He understood that the profession had a huge stake in whatever was going to happen.  So, he turned his attentions to the professional organizations, hoping to find areas of agreement around which a coalition might be built and certain ideas might be advanced.  Early in 1988, prior to the rendering of the Corns decision, Brock convened representatives of the main education interest groups, including the Prichard Committee and the Chamber of Commerce…into a coalition.  Clements explained, “The idea would be for Brock to lead the coalition in development of a reform agenda that all member groups could agree upon, so that the [Superintendent of Public Instruction] and interests could compete with the Governor and [the Interim Joint Education committee] on the education policy playing field.”  
Dr. Steve Kay, a consultant with Roberts and Kay Incorporated, was brought in by Brock to facilitate the discussions.  Kay indicated that Brock was partly interested in formulating a plan but he had more esoteric notions in mind as well.  Kay recalled, 
Yes…I think [formulating a plan] was part of it.  And, part of it was, I think, that John had a right notion, which was, if…they could get some, at least minimal, kinds of alignment amongst the constituency groups, if they could agree on some things, that they could move those things forward.  But, …absent that, not much was going to happen. 

The Prichard Committee decided that it would not support any reform plan that did not come with dollars already attached to it.  But Wilkinson was noncommittal on the tax issue unless he got unqualified support.  Sexton recalled,
By the time the ultimate reform was enacted in 1990 [the Education Coalition] had basically agreed on the elements of it. The KEA had even agreed to accountability in return for dollars.  Our role in that was to keep that issue on the table.  Other groups had other agendas.  But our role, [as] we saw it, was to say, ‘As taxpayers, we are willing to support more money but there has to be some evidence that there’s going to be improvement as a part of that.’

But the Education Coalition apparently got the same treatment as the one that caused the legislature to balk.  According to Sexton,
The culmination of all that work came in a horrendous meeting with Governor Wilkinson.  Where he came to us, this is a long story, but he had been working with Superintendent of Schools, John Brock.  And John had been sitting in on these coalition meetings and had somehow or other communicated with the Governor.  By this point the Governor did not have legislative support.  He needed to build other support for his program.  So he came to this coalition of groups and we had a meeting and the question was, ‘Will you support my program?’  

A lot of what he was proposing was what we wanted.  There was a lot of agreement.  But in that meeting he said, ‘If you’ll do that, then I will pass the biggest tax increase you’ve ever seen.  It will surprise all of you.  Governor Wilkinson was a man who loved to use superlatives.  Everything was either the biggest or the first or something like that.  Biggest you’ve ever seen.  Biggest you’ve ever imagined.

And I think we were in his office, it seemed like a day, it might have been three or four hours, fighting over this.  And we as a group, and I was the spokesperson for the group, said, ‘We’re not going to do that.’  We didn’t say it, but the implication was, ‘We don’t trust you to do that.  If we agree to support your program, then it’s all over.  We have no more leverage.’  And so he was not happy.  He was furious.

Overall, professional interest group involvement in Kentucky school reform, particularly those directly involved with education, proved to be very weak.  The General Assembly’s growing strength was only made stronger when Judge Ray Corns made his ruling.  The legislative leadership made it clear to all other interest groups that if indeed, as the judge ruled, the responsibility for an efficient system rested exclusively with the General Assembly, then they would decide who was in (and not in) the debate.  The only uninvited entity that the legislature had to keep in the loop was the Governor, due to his responsibilities for the all-important state budget.  Left unfunded, the best reform package in the world would not produce a good result.  

The Corns Decision
Judge Ray Corns reached his momentous decision May 31, 1988.  He explained his decision to declare the school system unconstitutional in very straightforward terms.
I decided that it was a duty of the General Assembly, a mandatory duty, to provide and adequate educational opportunity for our children in need.  And on the basis of the facts, I determined that it was not adequate.  And secondly, I determined that as a matter of law, not only did it have to be adequate, but there had to be equity.  It had to be applicable throughout Kentucky and that a child could not be penalized educationally because of geography: because of where they live.

One of the provisions in Judge Corns’s decision called for a committee to advise the court on issues raised in the case.  This decision was subject of a certain amount of criticism.  Corns explained the origin of the committee idea.
After I issued my opinion on May 31st 1988, holding the system unconstitutional.   I told them I would issue a final opinion by October 15th of that year.  And I followed a principle that had been approved in a case in West Virginia. 

As Combs and Dawahare knew, the separation of powers was a tightrope that the court would have to walk.  Judge Corns’s decision to name an Education Committee to report to the court before its final ruling in October raised hackles among the legislators and prompted an appeal to the Kentucky Court of Appeals seeking a Writ of Prohibition.  According to Dawahare,
After Judge Corns had ruled the first time in May of ’88, Rose and Blandford went to the Court of Appeals asking for a Writ of Prohibition, which is the Court of Appeals ordering the trial judge not to do something.  What they wanted the Court of Appeals to order Judge Corns not to do was [to hold the meetings with the committee he appointed].  They kept saying, ‘You can’t do that and you certainly can’t spend state money.’  

That was really quite hilarious because the first thing that happened was that [appellate Judge] Dan Jack Combs appeared on the panel.  He and a member of our firm, Kilmer Combs, were once partners.  They didn’t part on the kindliest of terms, so we worried about prejudice.  Also, Judge Combs had supported Dan Jack’s opponent.  (laughs)  So, Dan Jack, he’s very expansive anyway, he said, ‘Well, I have long ago forgotten any hard feelings I may have had against Mr. Kilmer Combs.  And as for you, Bert Combs, it is true that you supported my opponent.  Not too well, I might add.  But I feel I can put that aside and I’m not going to recuse myself.

Then we had this lengthy hearing with everybody arguing back and forth.  And the one thing they really seemed interested in, I believe this was Anthony Wilhoit, was ‘Well, how much money has this committee spent?’  I believe Arnold Guess was in the back and said, ‘$11.’  So they came back with the decision that this was really a piecemeal appeal that Rose and Blandford were trying and that could be taken care of when it got to, wherever, but they weren’t going to prohibit it now.  

Rose objected to the Education Committee, arguing it violated the separation of powers but otherwise was not too harsh in his criticism of Corns’s decision.  Rose said,
The Corns decision itself, as far as addressing the basic issue that education in Kentucky is not funded equitably – there’s no problem.  I agree with that.  I disagree very strongly with a couple of the other things that Judge Corns was trying to do.  This is another reason we wanted to appeal, and we did indeed prevail in these things later on.  What Judge Corns wanted to do was appoint a committee.  And initially wanted myself and Speaker Blandford and other people in the legislature serve on that committee, to develop a plan for education and then to bring that plan back to him.  And he would decide if that’s what needed to be done.  That very clearly was not something that he ought to be doing.  That in fact makes the judge a legislator.  Now I have no problem with the court system determining if what we did is constitutional or not.  But I have a very real problem with them telling us what we can pass.   If you’re going to do that you just need one branch of government.  

Attorney for the General Assembly, William Scent did not think much of Judge Corns’s Education Committee either and even went so far as to suggest other motives for its creation. 
Looking back on it, I realize now that I never had a chance of winning that from the word go.  It was before a judge that had all this background in the education department.  Combs was lead counsel.  He and Corns were very good friends. You had all this lobbying going on in the background with all these do-gooder groups about, you know, ‘Something had to be done to improve education.’  All the media hype started about it and I just should have read it as being a situation where I wasn’t going to win the case.  

Of course, that wouldn’t have deterred me from going ahead and defending it the way I did anyway. What was going to happen was going to happen.  The court was going to declare it unconstitutional and so forth.  It was a juggernaut that got in motion and there wasn’t any way that anybody was going to stop it. 

I felt [Corns’s Decision] was wrong that it went way too far.  Certainly, remedy-wise he exceeded his power and authority.  He was going to keep the case on the docket and monitor it.  He was going to judge whether the legislature was complying with his mandate, and so forth. 

[The committee] was just a dog and pony show to get some more media hype worked up about the case.  That’s what it amounted to.  It may have very well influenced the Supreme Court and their looking at the case.  They’re not immune from reading the papers and so forth.  And that created a vehicle to publicize the Corns decision.  By having those hearings and having the report, I’m sure the members of the court all read that.  It’s bound to have had some effect on them.

As Superintendent of the Rowan County School District, John Brock was a member of the Council for Better Education.  Upon his election to the state Superintendency, he became a defendant in the Council’s action - but not for long.  As Brock recalled,
When I became Superintendent, I suddenly found myself to be a defendant in a suit where I had been a plaintiff.  My local Board of Education had been a plaintiff.  I just expressed to the department’s attorney here, Mr. Gary Bale that I wished to express to the judge that I did not wish to defend against that suit. My sympathies were with the plaintiffs and that’s a similar position taken by the Superintendent of Public Instruction in California. 

Governor Wilkinson made the same decision.  So by the time the Kentucky Supreme Court heard oral arguments, the main appellants were members of the legislative branch of government.  Prior to oral arguments, both sides issued extensive briefs to the court, on a fairly short time line, that drew compliments from the justices for their quality.  Due to the importance of the case both sides were granted extended time for oral arguments.  As Debra Dawahare recalled, 
Everybody knew it was going [to the Supreme Court] anyway, so why waste time at the next level?  The Supreme Court, to our surprise, and I think anticipating a possible special session in January, wrote to us almost at once and said, ‘Appear here December 7th for oral arguments.  In the meantime, have your briefs ready in two weeks.’  We went, ‘Oh, god!’  They also gave an hour for the arguments - an hour a piece.  The typical time is fifteen minutes.  In addition, they waived page limits on the briefs.  

Late in 1988, Lawrence Forgy reflected upon Judge Corns’s decision at a meeting of the Kentucky Association of School Superintendents.  Forgy had been a member of the committee appointed by Corns, a law partner with Bert Combs and was a prominent Republican political leader in the state.  He shared with the Superintendents his views of the political and legal significance of the ruling. 
It seems to be the consensus of the political writers at least, and of a lot of people that are political junkies…that the real political significance of the case is that it has created a way in which the Governor can rationalize some change in his ‘no tax’ stand, which was, of course, one of the hallmarks of his campaign.  The second political significance…is that it does put a great deal of pressure on the leadership of the General Assembly.  The real significance of this case…from a legal standpoint…[is that] no Kentucky court has ever so firmly instructed the General Assembly of its constitutional obligations in a matter of such great consequence.

Since 1979…the Kentucky General Assembly has been on a drive toward essential primacy in state policy-making.  And little doubt remains in my mind that in the last four to five years they have achieved that essential primacy.  Most major policy in this state now, is made by the General Assembly and not by the Governor.

In mid October 1988, Combs became aware that the Council’s Domestic Corporation Charter had been revoked due to the Councils’ failure to file appropriate papers with the state.  This had the potential to derail Council efforts at the time preparations were being made for oral arguments before the Supreme Court.  It fell to Jack Moreland as President of the Council to fix the problem.  He recalled a very hectic day.
Once the Corns Ruling was passed out, of course, Mr. Scent was looking anything and everything he could use [against] the organization that actually filed the suit. We were initially incorporated but you had to file update papers in order to keep in good stead with the state as far as being a non-profit corporation.  We didn’t have to pay any taxes…but we had to file and we had to keep everything in good order.  And this would have been somewhere around NKEA Day [Northern Kentucky Education Day, October 14, 1988].  Well, we were doing some things up on the football field and I was up there tinkering around with them.  My son was here in the office.  He didn’t want to be up there.  He wanted to watch television.  There was nobody in the school district [office] and the phone rang.  It was Judge Combs.  

What had happened was Arnold had been taking care of this stuff when he was in the private situation.  He had left an address that was really nothing more than a post office box where he got the mail that dealt with the Council for Better Education.  When he went back to work for the department we hadn’t thought anything about it.  Most of his mail was sent to the department, but this information went to that post office box.  

We got that call and Judge Combs told my son, who’s nine-years old…And Bernie came up and said, ‘Daddy, a Mr. Combs called and he said it’s absolutely important that you call him right now.’  So I got on the phone with Judge Combs.  He said, ‘Jack, You have got to get this straightened out by the end of business today.’  Now this was like 10:30 in the morning.  He said, ‘I don’t care what happens.  You’ve got to do that by the end of business today.’  And I had to file the necessary papers with the Revenue people.  I had to go to the Secretary of State’s office and prove to them that we were OK with Revenue.  And then, they would reissue [a reinstatement].

And I had been up there on the football field.  I was in my blue jeans.  I looked like a damn wreck, you know.  (laughs)  We loaded in the car and took off.  And we got it done by the end of business.  But that could have been very important for us. 

Having lost their “mismanagement” argument in court, the leadership of the General Assembly sought to prove their point in another, more vindictive fashion.  Sometime after Judge Corns’s initial ruling they called for Bob Babbage, the State Auditor and grandson of former Kentucky Governor Keen Johnson, to conduct an investigation of Kentucky’s poorest school districts and report any mismanagement.  Superintendent John Brock’s initial reaction was strongly negative, even to the point of threatening Babbage with a lawsuit if he proceeded.  As Brock recalled, 
The auditor was asked to audit the 66 districts that had filed suit, and that had won the case.  And that just was punitive and intimidating in nature.  In fact, I advised the auditor that he was really moving into dangerous ground to be perceived as personally attacking 66 districts that had undergone great criticism from people to stand up for youngsters in those poor communities.

Brock questioned whether Babbage might have encouraged such an audit due to a personal interest in running for State Superintendent himself.  Babbage admitted, “I did have an interest in that assignment and was encouraged by some people to consider it.”  But he steadily maintained that his actions as auditor would only be motivated by his understanding of his constitutional role.  
Babbage acknowledged the anger of some legislators and understood very well the depth of emotion coming from all quarters.  Was the call for audits really a punitive move by legislative leaders as Brock had suggested?  Babbage said,
It probably was motivated that way in the beginning.  But that doesn’t diminish the real validity to have audits done of school systems.  I mean there’s no question the legislature may have been angry when they asked me to [audit].  They also had a very reasoned basis for their request.  So what I had to try to do was defuse the anger and the emotion.  And believe me, I heard a lot of it from legislators and Superintendents and other people…

Bob Babbage read the law literally, and as he saw it, “The law says that the legislature can cause this office, by request, to do whatever it wants.  It also says that I should honor those requests, and I did.”  The Attorney General agreed with Babbage and the decision to conduct an audit was made.  Babbage recalled the fun the newspapers had with the fuss.  He kept a political cartoon on his wall that read, “School Lunch Menu: Babbage and Brock share a knuckle sandwich.”  
The State Auditor ultimately decided to audit a sample of districts across the state to remove the appearance of vindictiveness.  Babbage decided to take three school districts from each of the six congressional areas, leaving out Jefferson and Fayette Counties due to their size, and Pike County because the Kentucky Department of Education had already taken over the school district due to preexisting concerns with management.  According to Babbage, eighteen school districts were identified for audit. 
Those 18 went berserk, together.  But then when we finished the audits and handed it to them, almost every one said, ‘You know, if I could save some money here, and you’re talking five and six figures, then you’ve really done something to help me out.’  Some people said we weren’t hard enough on the school systems.  Some said we were too hard on them.  I don’t know what the answer is.  I think we tried to shoot it straight down the middle.

In the final analysis, Bob Babbage was philosophical about his job as State Auditor and having been called upon for this task.
We don’t audit taxpayers.  We audit the government on behalf of the taxpayers. But, nobody likes that kind of look.  And you just have to accept that coming in here.  Now, if you can do that with some politeness and some diplomacy and consistency then I think you can maybe survive a four-year term in this office.

The Council for Better Education approved of his handling of the audits and later, at the testimonial banquet for Bert Combs, Council President Jack Moreland remarked, “Fortunately, because of the integrity of Bob Babbage, our auditor, the audits were done very fairly.”

Mr. Scent’s Case before the Supreme Court

The Appellants, Senate President John “Eck” Rose and House Speaker Donald Blandford, believed that Judge Corns’s ruling ought to be reversed and that the General Assembly had already provided an efficient school system through their legislative acts.  In making this argument before the Supreme Court, Paducah Attorney William Scent explained that this case was actually a multifaceted public policy “campaign” that had already gotten appropriate attention from the legislature.  As we have already seen, Robert Sexton had thought in terms of a public policy campaign from the start.  Council for Better Education member, Eugene Binion, recognized the impact of the collective efforts on public opinion and legislators.  Binion commented,
I think that the public knowledge that came about because of the suit helped bring about the kind of things that we’re witnessing now.  I think that the School Facilities Construction Commission grew out of the efforts that many of us were making about the suit.  That happened right before we filed…with the 1985 session…Those were the kinds of ways to improve education in poor districts that we wanted to bring to the attention of the public to start with.  

I think the articles about Cheating Our Children…have [had] a tremendous affect on what may happen in the next ten years with public funding and 

with public interest in education.   Those kinds of things have to be done by somebody.  I think a lot of those things were brought about because of the interest of the 66 school districts who joined the Council for Better Education.  

Appellants’ counsel William Scent decided to use his allotted hour before the Supreme Court in two parts.  He argued for 50 minutes initially and reserved 10 minutes for rebuttal.  In his opening, Scent made some prefatory remarks but got off to a rocky start.  His first two points were: This case had “already had a salutary effect on the campaign, and I believe it is a campaign, to secure additional funds for elementary and secondary education.”  And, the “General Assembly had as its goal and continues to have as its goal the best system of education…possible in Kentucky.’
But Justice Stephens offered a quick retort.  “Is that really the issue Mr. Scent?  Or is the issue whether they have achieved the constitutional mandate?”
	Scent agreed that the issue was the constitutional mandate, then regrouped and continued his remarks.  But he seemed unable to gain any headway by telling the court how hard the legislature had tried:
Scent:	Have the Appeallees shown by clear and convincing evidence that the legislature has failed in their constitutional duty to provide by appropriate legislation, an efficient system of common schools throughout the state…”

Stephens:  Judge Corns has already made that ruling and the question you have to show is that under Rule 52 his findings are not supported by evidence…

Scent:	The point I’m trying to make is that the legislature has done its best funding-wise to constantly improve public elementary and secondary education in Kentucky in the context of the general fund resources that are available and the other budgetary demands.

Stephens:  Are you saying that there are no more resources available?

Scent:	No, I’m not saying that there are no more resources available.  What I am saying is that the legislature has been responsive to the will of the people.  And I think the court can take judicial knowledge of the fact that people do not want any increased taxes.  Now I think that if it can be shown to them that there’s no other course available then they will go ahead and authorize it.

Stephens:  Is that another way of saying that whether the constitution is complied with is based upon the will of the people?  If that’s the case, what are we doing here? 

Scent later recalled his oral argument this way:

I remember that right in the beginning that Stephens, much to my surprise, hopped all over me.  You know, it was pretty obvious that he had prejudged that case.  This was just a formality as far as he was concerned.  

The tone and tenor of his questions, in fact he didn’t question me.  He just kind of attacked me for reviewing what the legislature had done.  I was saying that they had made good effort.  And, he was saying, ‘Well, do you mean that if the legislature says that they’ve made a good effort that that’s going to overcome a constitutional duty imposed upon them?’  I don’t know what his purpose was but to me – I knew then that he had a very preconceived notion about it.  I could not say that about the rest of them at that time but I knew that he did.

After five minutes of effort, Justice Vance appealed to Scent to abandon his opening remarks and argue the legal issues.  Scent began to make another point when Justice Liebson quickly echoed Vance’s request.  At that point, Scent abandoned his prefatory remarks.  Of course, this did not end the challenges from the Justices.  Supreme Court Justices routinely interrupt attorneys during their presentations.  As Supreme Court Administrator, Susan Stokley Clary, explained to her Kentucky Educational Television audience before the oral arguments began, 
This is an appellate court.  Its main task is not fact-finding.  The Justices are here to determine the law as it has been applied to the facts by the trial court. …The Justices will be asking questions throughout their presentations.  …They are asking questions about the facts that they’re interested in.  Of course there are seven Justices sitting on the case and if one Justice wants an issue discussed, he may be in fact acting as a devil’s advocate.

Scent began his legal arguments stating that the rule certifying a class action had not been followed.  He said that the only plaintiffs who had standing were the student plaintiffs and that they did not represent a class.  Justice Donald Winterscheimer disputed Scent’s claim saying that the case was never a class action.  Justice Joseph E. Lambert asked, “What difference does it make?  If you establish that at least one has standing does it make any difference if others do not?”  According to Scent’s logic, the plaintiff school districts had no standing to bring the complaint and “if it’s not a class action, then [the court was] going to measure whether or not there’s been a violation on the basis of that individual student.”  According to Scent, few of them testified and they “offered no proof.” Except of one student who said they could not take a computer course.  His position was that in order to have a justiciable issue, the plaintiffs had to show that their rights had been violated. 
But Justice Stephens ignored the question of whether an individual student’s rights had been violated and focused instead on Scent’s admission that from district to district there were differences in educational opportunity.  (See figure 4.1 on page 200.)
Pointing out that the rights under Section 183 of Kentucky’s Constitution were not given to the school boards, but were given to the students, Scent claimed that these groups had no standing to sue.  Arguing the logic of a Michigan case, East Jackson Public Schools v. State, William Scent claimed that school boards could not sue their creators.  
Justice Charles Liebson offered the rejoinder that local boards of education are creatures of the state.  But, if funding is insufficient the only people who can change that is the General Assembly.  Liebson asked why the enemy was the local board and not the General Assembly who could adopt an efficient system of statewide funding?  Scent reasserted his claim, but Stephens, in a punctuated exchange, read from the statute that established local boards of education.  (See figure 4.2 on page 185 and Figure 4.3 on page 201.)  Scent countered that in the Kentucky Supreme Court case Board of Education of Louisville v. Board of Education of Jefferson County the court said a local “district is…an agency of the state, existing for one public purpose only – to locally run the schools in their district subject to the paramount interests of the state.”  
Scent argued further that if school boards have no authority to maintain the action, then certainly the Council for Better Education had no authority since it was essentially a funding vehicle created for the sole purpose of bringing the suit while utilizing school funds.  He asserted that since the rules for filing a class action had not been followed by the appellees, there was no class action.  He did concede that some student plaintiffs had the necessary standing but that the evidence presented by them failed to show that, as to each of them, the system produced any unconstitutional result.  But, once again, Justice Stephens drove home the point that it was the General Assembly that was ultimately responsible.  (See figure 4.4 on page 203.)
The most troubling issue for the Supreme Court may well have been the question of how one goes about suing the General Assembly.  It was Scent’s contention that nothing was done to make the membership of the General Assembly a party to the suit.  He argued that each and every member of the General Assembly must be served in order to appear before the court and since they were not, no judgment could be made binding against them.  Chief Justice Stephens asked for legal authority supporting the argument that each member had to be served and Scent cited LRC v. Brown in which the Kentucky Supreme Court held that the General Assembly could only act through its elected membership.  But Stephens bristled and remarked that he knew something about that case [having written the court’s opinion] and that is not what it said.
The separation of powers doctrine loomed large.  On one hand, during oral arguments, Justice Liebson indicated that any specific remedies were likely to conflict with that doctrine. On the other hand, Justice Vance seemed to want specific standards against which to measure the legislature’s compliance with any order the court might issue.  Scent argued that the lower court had ruled the system unconstitutional because it is under-funded.  And therefore, in order to have sufficient funds to comply, the court was telling the legislature it had to raise taxes, a violation of the separation of powers.  Particularly troubling to Scent, and to Chief Justice Stephens, was the lower court’s request that the General Assembly meet with the court to discuss what it had done to comply with Corns’s order.  This further violated the separation of powers, Scent said. 
The Council for Better Education had been sensitive to the so-called “Robin Hood Theory” in the lower court.  Fearing that it would be politically unpalatable for the richer districts if they thought they were raising taxes to support schools in poorer parts of the state, Combs decided to argue that no district was adequate enough, such that funds should be taken from them.  There also remained a contradictory allowance that any district meeting the constitutional minimum could then be allowed to sweeten the pot with more local funds.  This paradox was clear to Justice Vance who raised the question of whether the system is unconstitutional because it is discriminatory or because it is inefficient.  He pointed out that on one hand Corns says the funding of districts cannot be different, but on the other hand he allows local districts to provide more.
Justice Donald Winterscheimer focused on the fact that some districts had levied the permissive taxes while others had not.  Scent conceded that if the General Assembly was subject to criticism anywhere it was that the local boards were subject to referendum provisions on levying taxes rather than operating under a mandatory provision. But, Scent suggested that the Supreme Court had previously ruled that so long as any proposed tax rate was subject to a vote, it passed constitutional muster.  In his opinion, the local district’s failure to levy these taxes, along with the lower court’s decision, had put the General Assembly in a straight jacket.
Justice Liebson responded sharply, “That’s nonsense!”  The General Assembly could pass a law to “throw out the whole local system of funding schools and have it state funded, could it not?  And have it all equal.”  Are you saying “that the General Assembly has provided an efficient school system if it has delegated to the counties the responsibility for doing so?”  Justice Winterscheimer added that even taking into account all the alleged mismanagement, there still was not enough money. 
The Supreme Court, however, did not appear to be very concerned by the “Robin Hood Theory.”  Scent argued that the whole basis for Corns’s holding that the system was inefficient was that it did not produce enough money for some districts – that citizens in Fayette County must pay more money to support schools in Wolfe County.  Stephens asked, “What’s legally wrong with that?”  As a former Revenue Commissioner, knowing that the system was based on a state tax collected locally, Scent was forced to concede, “Nothing.”
Returning to the question of standards, Justice Vance asked, 
Assuming that that is true, that… there’s not enough money for some districts…how does a court determine how much is the minimum necessary for a district?  What I’d like to know is what were the standards used by Judge Corns…to determine whether a district needs $1,500… or $5,000?  I don’t know how you measure that to determine whether its efficient or not unless you have some standards to say that there must be enough money provided to do this or do that and that’s what I fail to find in the opinion.

William Scent offered that if Woodford County could do it, anybody could do it.  All one must do is require these poor districts to levy taxes and take care of their mismanagement problems and the system would be efficient.  But once again Stephens turned to the General Assembly asking that to require these local districts to levy these taxes “would require some legislative action - wouldn’t it?”  Scent countered that the mechanism was already there, but these five districts do not bother to use it.  And Stephens questioned rhetorically, so “if they don’t, it’s just tough for these kids?”
In his summation, William Scent called Corns’s Education Committee a “Dog and Pony Show” intended to advertise the court’s decision.  With regard to Rule 52, Scent argued that the lower court erred in failing to enter the proposed findings submitted by the defendants and in finding that the system of common schools provided by the General Assembly is not efficient.  
Scent again made the point that the lower court ruling would in effect cause money to be taken from the rich districts to be given it to the poor districts and that permissive taxes were not disequalizing.  He asked the court to accept the definition of efficient offered by defense witness and Woodford County Superintendent Joe Gormley – that it meant making the maximum use of available resources based on what the taxpayers say you can have as a school district.
Scent reiterated his central argument that Judge Corns was, in fact, telling the legislature that they must levy new taxes and that the court was going to keep tabs on the General Assembly – violating the separation of powers doctrine.  Finally, Scent criticized the use of what he called old data (Kentucky was the most illiterate state) based on the 1980 census.  He said that Kentucky may have been the most illiterate state in 1980, but there is no proof that it was at the time of the trial.  He urged the court to identify specific offending statutes rather than declaring the entire system to be unconstitutional because in Scent’s view, such a finding would not help anybody. 

Combs and Dawahare’s Case Before the Supreme Court

The appellees, The Council for Better Education, and the various school districts and students, believed the General Assembly had failed in their constitutional mandate to provide an efficient system of schools throughout the state and that the lower court judge’s ruling should be upheld.  Unlike Scent, Combs got straight to the legal issues presented by the case and got off to an appreciably better start.  His more philosophical arguments were saved for his closing.  Initially, he even received some good-natured teasing from Chief Justice Stephens regarding the court’s system of lights, which alert attorneys when their allotted time before the court is complete.  (See figure 4.5 on page 204.)  Combs argued for forty-five minutes followed by Debra Dawahare for fifteen minutes.  
Combs argued that it was very clear that school districts have a right to maintain the action citing Russman v. Luckett in which plaintiffs were students and parents.  He countered Scent’s argument by pointing out that the Michigan case is the only authority they could find anywhere which does hold that, according to Michigan law, local districts being an arm of the state, had no right to sue.  But Combs added, in Michigan, municipal corporations could not sue, neither could counties sue – so it is not much legal authority.  Combs had cited several cases in the Council brief that he said would convince the court that the plaintiffs do have the right to sue.  Even Scent, he said, conceded that students could sue.
Combs disagreed with Scent’s contention that the case was filed as a class action.  However, Combs did concede that there were some initial allegations to that effect.  “But then we decided we didn’t need a class action.  We’d have to get into a lot of notices, motions, and it would make the case too cumbersome.  And, it was not necessary.”  
Combs pointed out that authorities in Kentucky are sparse on the question of how one sues the General Assembly.  Combs and Dawahare decided to follow the federal model in which the proper way to sue Congress is through and by its elected leadership. This concerned Justice Liebson who asked if Combs was saying that all individual members of the General Assembly were before the court because their leaders had been named, and that Judge Corns could therefore command individual members of the General Assembly to do something.  Combs responded that he did not know the answer to that but “The Pro Temp leader is before the court.  The Speaker of the House is before the court.  And we are asking that they should exercise their authority to proceed as far as they can to enact an efficient system of public schools.”  
Chief Justice Stephens asked, “How far is that?”  Combs responded, “I don’t know, Judge, and I don’t think we have to answer that this morning.” Justice Winterscheimer wondered, “How can we enforce any judgment?”  Combs suggested that the court could say to the Speaker and the Pro Temp – “You can exercise your authority to propose legislation that is constitutional.”
The Chief Justice seemed to be somewhat critical of how Judge Corns had written his findings.  He asked, “Suppose this court upheld - and I’m a little unclear frankly, quite unclear, as to what Judge Corns really ruled - but suppose we did say that the system of public schools is inefficient and stopped there.  Where would that leave your clients?  Combs simply responded that it would leave them knowing what the law is, and the Governor would know, and the General Assembly would know.  
Quickly opining the limits of the court’s authority, Combs added that he did not think the court had to answer the question of how far they must go.  Combs said that nowhere in Judge Corns’s ruling does he direct the General Assembly to pass any particular laws, or derive school funding from any particular source or to adopt any particular system. According to Combs, Corns went as far as he could go in his ruling.  If he had been specific about a remedy, he would have violated the separation of powers doctrine.  In Brown v. Board of Education the U. S. Supreme Court said, you have to desegregate with all deliberate speed.  They did not define any standards, Combs said.
Justice Liebson expressed concern that in upholding such a ruling the court might unwittingly make suing the state a new cottage industry.  Liebson contended that in Brown v. Board of Education the court did not keep jurisdiction; it rendered a judgment, and then there were subsequent cases.  Bert Combs agreed that if the court affirmed Corns, and later somebody made a claim that their child had been denied an adequate education, they would have to litigate that question.  Combs added, “I hope it doesn’t come to that. But that would be the case.”
The trial court had done no more than to declare Kentucky’s existing school system unconstitutional and to direct the defendants to comply with the constitution, Combs argued.  He also claimed that the appellees had done nothing to argue that the system is constitutional, that, on the contrary, the system does not provide an opportunity for an adequate education, and there is no semblance of uniformity.
Justice Vance once again raised the question of standards by which the court could determine whether a system is efficient or not.  According to Combs, efficient meant funded at an adequate level.  Despite the legislative provisions allowing for permissive taxes, subject to referendum, the General Assembly is the only agency mentioned in Section 183.  If local officials do not do what they need to do, the legislature has to require them to do it.  The bottom line, Combs argued, is that every child ought to have an adequate education. 
I want this: I want an adequate educational system in every district in the state and then if local districts like Lexington or Anchorage want to sweeten the pot - if they want to pay their teachers more - let them do it.  That’s, I think, the accepted theory at this point.   But every child ought to have an adequate education.  So if we reach that, my clients are going to be satisfied.  

Having served as federal judge himself, Combs anticipated the justices might be somewhat reluctant to create new law.  He provided some sympathetic 

encouragement by acknowledging,
This is not an easy case.  And it’s the first case of this nature in this state.  It’s not that I want you to follow an uncharted course.  But I think you’re going to have to write some new law here.  This is the first time in the history of Kentucky where all three branches of government have attempted to do something about the school system. 

Justice Gant responded by asking if the court was supposed to declare that system unconstitutional because one little girl could not get the computer class she wanted?  Combs argued that overwhelming testimony revealed that the schools in these sixty-six districts were inadequate.  He noted the nineteen plaintiff students who were in those districts - kids who would not know themselves if an education was adequate or not.  And he said that the appellees did not think they should haul the children into the court to ask them if they had a constitutional education.  In addressing the question of adequacy, Combs claimed that money was one factor, and one indispensable factor, in establishing an adequate school system.  The constitution says throughout the state, so the system had to be substantially uniform.  He argued that Judge Corns went as far as he could go in his ruling.  In his summation Bert Combs said, 
This is an important case as this court has recognized.  And I think it is a fact that Kentucky is becoming recognized, unfortunately, as the most illiterate state in the Union – not a proud heritage to pass on to our children.  I believe it’s fair to say that in this age of high technology, the hour is growing late for Kentucky in the field of education if it is to remain a progressive, competitive state.  It is imperative…that we commence to properly educate our children.  

The Constitution says that the system shall be throughout the state.  So it has to be uniform - at least substantially uniform.  I saw plastered across a billboard recently these words, ‘A mind is a terrible thing to waste.’  And it’s an indisputable certainly that countless young minds throughout our fair state are being wasted.  Those are strong imaginative original minds that if properly trained could make a better Kentucky.  But it is - and I take as much responsibility as anybody - a discredit to my generation.  It’s even shameful – that these eager young, youths throughout Kentucky are not being properly trained.  And this record is absolutely beyond question, overwhelming on this point, that we are depriving our young people the opportunity to receive the kind of training that will permit them to compete on level ground for the things that make life worthwhile.  

And no one should point the finger of blame.  I want to make it clear that we’re not blaming this particular legislature or this particular governor.  There’s enough blame to go around.  But the fact is that other states have been moving forward.  Kentucky has been standing still or slipping backward.  And so, in the 5th Congressional District, it’s a national problem.  Forward in the Fifth has been talked about on the floors of Congress.  And the Fifth District is, of course, in this set of plaintiffs.  And I might point out that of these 66 school districts not all of them are in Appalachia.  About half of them are in Appalachia.  The others are scattered throughout Kentucky.  Bullitt County within the shadow of …Jefferson County …has made a case here that its children don’t get an adequate education and certainly that the system is not uniform.  But the important thing is that we recognize the lateness of the hour and the necessity to do something about it.  

In the words of Judge Corns…‘The crisis in education has reached emergency proportions.’  I think that is a fair statement, certainly.  It is not exaggerated…I think that Judge Corns’s decision is not only legally sound, but certainly it’s morally, progressively sound.  I know it’s not as specific as we would want in a boundary line case.  But Judge Corns does say that the system is inefficient, and says why.  And he says what it would take to make it efficient, although he doesn’t put it in amounts of dollars, Judge.  So I think we’re about as far as we could go on this case.  And there’s very little opposition really…except for some of these procedural errors, and the fact that, well, we haven’t gone this particular route before in Kentucky.  But I think the circumstances require that we all put our best efforts to it.  And I submit this case to you for your most careful, and even prayerful consideration.

Debra Dawahare’s presentation provided the logical counterpoint to Scent’s attempted absolution of the General Assembly.  Citing past legislation and court action, she presented a clear history of the acts of the legislature relative to public schooling in Kentucky.  Jack Moreland later recalled “I saw her in action in front of the Supreme Court and she absolutely closed the door and nailed it down for our side.”
Dawahare began with a reminder that in Wooley v. Spaulding the Kentucky high court held that the circuit court would retain jurisdiction to ensure compliance with the court’s ruling.  She then outlined for the court a summary of the historical evidence showing that the legislature had acted affirmatively to create the existing unconstitutional system. 
Dawahare argued that when the legislature had dealt with school finance it had been a one-step-up, two-steps-back situation.  Old Section 186 of the Constitution was a flat per capita grant.  That was a disaster, she said.  In 1941, the people went to the polls to allow ten percent of the existing school funds to be used for equalization but that did not work either.  In 1952, the people went to the polls again and eliminated Section 186 entirely and gave the General Assembly the entire authority to solve the problem.  In 1954, the General Assembly created the Minimum Foundation Program that, Dawahare said, was fine as far as it went.  It provided a flat grant to school districts on the basis of the number of classroom units.  Referring to Scent’s arguments, Dawahare responded that so much had been made of poor local effort that the point should be made that it was state money, but the ad valorem tax was collected locally.  One problem of generating money through this method was that there were so many variations in local tax 

assessments.  The Kentucky Court of Appeals tackled this problem in Russman v. 
Luckett, in 1965, Dawahare said.  The court in that case mandated tax assessment at full cash value.  Immediately, the Governor called a special session and House Bill 1 was passed.  It froze the inequitable tax assessments into the system creating 180 different school-taxing districts.  She argued that there was no way for the districts to extricate themselves from that mess even if they wanted to.  In 1966, HB 44 was passed allowing permissive taxes, which were in themselves disequalizing because they were all tied to district wealth.  Dawahare concluded that any remedy could only be tested by its results.  The result in Kentucky was an inefficient system of schools because the disparities were so broad.  She appealed to the court to uphold Judge Corns’s ruling.  Once again, it was time to wait for a decision - this time, from the Kentucky Supreme Court.

Chapter Summary

While Plaintiff’s attorney Bert Combs would have preferred a federal court, after Rodriguez it was clear that state court was the right venue for this case.  He began building his case by considering the appropriate plaintiffs and defendants, and by determining the individuals whom would best contribute to the case.  Combs knew there was a separation of powers problem and appropriate relief would have to be suggested carefully so as not to intrude on legislative authority.  The plaintiffs sought a declaratory judgment that the present system 

was unconstitutional; that the Governor must call a special session; and that the legislative leaders must present legislation that would increase funding to an amount that was equitable and adequate.  Members of the Council for Better Education along with their consultants and others who were sympathetic to the effort identified those who would testify and gathered evidence for trial.  
Defense attorney, William Scent argued that the inequities cited in the complaint would not exist if the plaintiff had not mismanaged funds and had passed permissive taxes in their districts.  He claimed the General Assembly had done the best they could since the people of Kentucky did not want more taxes and that judicial notice should be taken that Kentucky is a poor state.  Meanwhile, a statewide election produced a new Governor (who had promised no new taxes) and State Superintendent (who was a member of the Council for Better Education) while the Prichard Committee continued to forge new coalitions with business and education groups.  
In a momentous decision on May 31, 1988, Franklin Circuit Court Judge Raymond Corns decided that the legislature had failed in their duty to provide an efficient system of schools.  Following a principle used in West Virginia, Corns established an Education Committee to advise the court on issues raised by the case.  Having lost their mismanagement argument before the court the General Assembly punitively called for audits of the plaintiff school districts.  After some wrangling with Superintendent Brock, State Auditor Bob Babbage agreed to a plan that would audit school districts more broadly, and ultimately found that schools were managing their resources fairly well.  
The case was immediately appealed to the Supreme Court where Scent argued that the General Assembly had as its goal the best system possible in Kentucky.  He said that recent legislative changes had already had a salutary effect and that “efficient” means doing the best with the dollars one is given.  He challenged the standing of the plaintiffs, calling the Council for Better Education a funding vehicle created solely for the purpose of suing the state using tax dollars.  He claimed that school districts could not sue their creators and that Corns’s Education Committee was simply a “dog and pony show” which violated the separation of powers doctrine. 
Bert Combs and Debra Dawahare countered Scent’s claims point by point but focused most of their effort on confirming the lower court’s conclusion that the General Assembly had failed in their duty to provide an efficient system of schools.  Combs was particularly careful arguing the separation of powers issues and guiding the court to conclude the system was unconstitutional without demanding specific remedies of the legislature.