Chapter Five

The View from the Bench

The central focus of this study has been the examination of pertinent school finance issues largely from the point of view of the Council for Better Education.  Another vital perspective, however, is that of the Supreme Court, and particularly its most notable personality - Chief Justice Robert F. Stephens.  Stephens led what most observers consider to have been an activist Kentucky Supreme Court at the time of the Rose decision.  Stephens was a Covington, Kentucky native, the grandson of a police officer, who was raised by his Roman Catholic mother and his stepfather.  His stepfather, Joe Dressman, was a newspaper editor who worked for the Miami Herald and later the Cincinnati Times Star. 
As happens throughout this case, prior personal connections exist among the main characters.  Chief Justice Robert Stephens and State Senator Michael Maloney had Democratic political connections dating from the early 1970s when Stephens was a successful candidate for Fayette County Judge.  He was largely responsible for the Lexington-Fayette Urban County merged government, at some official sacrifice, as the merger effectively put the County Judge out of business.  He was jokingly referred to as “Landslide Stephens” for his narrow victory in the race for Kentucky Attorney General, a position he held from 1975 to 1979.  Maloney at the time was Fayette County Democratic Party Chair and supported Stephen’s candidacy.  
Judge Ray Corns was former legal counsel to the Kentucky Department of Education.  The appellant’s attorney, William Scent, was Governor Bert Comb’s Revenue Commissioner in 1959, and in 1984, intervened in LRC v. Brown before Justice Stephens.  Possibly the earliest of these connections occurred in 1951 when Stephens got his first job out of law school.  As a law clerk for the Court of Appeals, at the time Kentucky’s highest court, his first task was to complete a research project for Judge Bert Combs.
Prior to his death in early 2002, former Chief Justice Robert Stephens spoke on tape with Robert Sexton, Executive Director of the Prichard Committee and Debra Dawahare, second chair to Bert Combs who led the Council’s case.  Like most people, Stephens had his own personal experiences that helped shape his judgments in the case.  As he explained it,
I had the good fortune to go to a really fine…public…Kentucky high school, at Beechwood, up in northern Kentucky.  Good teachers, they had plenty of money, nice physical facilities – everything.  But, I had traveled enough around the state, when I was campaigning for Attorney General, and had talked to enough people to know…that was a very rare example of what Kentucky schools had.

When you travel, and when I was Attorney General I traveled a lot in every county.  And we’d have some meetings in schools.  And, my god they were just terrible – the physical structures.  And I remember – this may have been after [the opinion] - I was introduced to a teacher…This person was introduced to me as the outstanding English teacher in Floyd County…But this person couldn’t even speak the English language.  The syntax was wrong, pronunciation was wrong; I mean that whole thing.  This teacher couldn’t speak.  And I thought, ‘My god!’  That even convinced me more that I was right.  If this was the person who was the outstanding English teacher in Floyd County…

What I thought about was, hypothetically, there’s a girl from Hazard that god has touched with being a genius at playing the violin.  Her parents are poor.  The school is poorer.  So, we need to provide some education that will encourage her to learn how to play the violin with skill, and so forth.  And that was the plan.  [Justice Donald] Wintersheimer was from Covington.  [Justice Roy] Vance is from Paducah.  [Justice] Joe Lambert was the only one that really knew what I was talking about.  I mean, how many geniuses are moldering up in eastern Kentucky?

So Combs’ earlier assessment of the significance of a judge’s temperament proved true, in Stephens’ case at least.  But along with a judge’s experience comes one’s orientation to one’s job, and Stephens thought himself a judicial activist.
You know, a lot of people have said, ‘Well, you’re one of those typical activist judges.’  And, I say, ‘Yes, I am.’  They thought they were insulting me.

It’s pretty egotistical, but if I see something that I think is really wrong, based on my life’s experiences, what I believe in, and if there’s a constitutional basis for it, I mean, if you have to stretch a little…  

Look at the Toyota case.  I didn’t write that thing but I was the swing vote in it…  Our court has absolutely stretched the constitution to the breaking point.  I mean, if it was a rubber band it’d been broke years ago.  But it just looked to the four of us that this was something that was just one more little 

logical extension of the constitutional interpretation…And maybe [i]t’s wrong to do that.  But, that’s my philosophy.  I’ve never minded sticking my neck out a little bit.  What are they going to do - shoot me?  Line me up and shoot me?  No.

It was a pretty activist [court].  And, [Justice] Charlie Liebson was the most activist of all of us.  A lot of his stuff is being overruled now.

Stephens acknowledged that his background in education law was not as extensive as that of Judge Ray Corns.  But his attitudes about the importance of a high quality system of schools for the Commonwealth were nonetheless obvious.  Stephens reflected,
I didn’t practice education law.  [Ray] Corns was attorney for the Department of Education for years.  He had a lot more knowledge, expertise and interest than I did.  I think everybody in the state knew how he was going to decide that case.  And, Ray’s a dear friend of mine, so I’m not talking behind his back.  

But, I didn’t have any particular interest in it.  If I told you that I didn’t believe that this decision would improve the quality of life for all Kentuckians – I’d be a liar, because I did think that.  

One of Stephens’ initial concerns with the Rose case was the composition of the court itself.  He knew that a change in the composition of the court might have a significant impact on the resolution of the case.  
One of the things a lot of people don’t realize is that during the processing of the suit in our court, we had an election and the incumbent, Justice James B. Stephens of Pikeville, ran against Dan Jack Combs, also of Pikeville.  [They had] completely different judicial philosophies –just as different day and night.  Jim was a very scholarly man, but very very very conservative.  

I didn’t know who was going to win the election when we originally set [the case] so I sent briefs to both.  And, of course, the argument was after the election so Dan Jack Combs [who ultimately won] came up, and he didn’t sit with the court, but he sat out in the audience with his brief, and so he was able to intelligently vote.”

As a matter of fact, I think, in the Courier Journal article, maybe two days after the opinion came out they got a bunch of so-called constitutional experts, and [James Stephens] was one of them and sharply criticized that opinion.  And so maybe, the God of Elections was on the side of the Council.
	
Stephens talked about some of the more practical aspects of the case from the Justices’ perspective.  Discussions among the Justices about how the case would be handled began sometime before the December 7, 1988 oral arguments were heard.  As early as January 1989, a judicial conference revealed that Stephens had a consensus on the major issues of school finance and that he would be writing the decision.
We met in conference before the argument.  We knew that we weren’t going to be able to assign the case right away, because it’s so huge.  I told the court I thought what we ought to do is wait about a month, early in January, and have everybody come to Frankfort and discuss the case just to see if there was any kind of consensus.

I knew that if I was in the majority, that I was going to write the opinion.  First of all, I had a lot of interest in it, as they all did.  Of course, I didn’t have any more interest or any more skills than any of the rest of them had.  But, I felt that if we were going to uphold Judge Corns, it was going to be a bit historical, and perhaps, most people would think, ‘Well, the Chief Justice ought to write an opinion of that import.’  I think we all felt that.  So, we did come back.  I took the briefs home, and read them, [and] made extensive notes on it for my own benefit.  We did meet in January and it became obvious that we had at least five votes.  That’s not to say that they all were going to vote on everything, but there were five votes to uphold Judge Corns.  I was trying for six but it didn’t work.  So, I went ahead and assigned that case to myself at that time.

So it fell to Stephens to begin the solitary work of writing the opinion on behalf of the court.  As he recalled,
I didn’t talk to anybody.  I’m not sure about the ethics of doing that.  When you’re a judge … you can talk to other judges on your court and your law clerk.  But, I couldn’t come up, if you were a school lawyer, and talk to you about it.  Now, I know some judges have done that.  Some trial judges do that all the time.  But I don’t consider that ethical.  Maybe that’s just me.

He did have some background knowledge to draw upon, however, from his research into the 1973 Rodriguez case and from a conversation with United States Supreme Court Justice, Antonin Scalia.
After I read the Rodriguez case, I thought, my god, we can’t use the federal [constitution].  I got trapped on a criminal case that I wrote a long time ago where I really decided on the basis of the Kentucky Constitution, but [in my opinion] I kept talking about the sixth amendment.  The Supreme Court of the United States reversed it.  I had a chance to talk to [U. S. Supreme Court Justice Antonin] Scalia, who wrote the opinion, and he said, ‘If you hadn’t mentioned it [the sixth amendment] we’d have left it alone.’  I knew we had to leave the federal Constitution out of it because Rodriguez says education’s not a right.  And, my god, that just horrifies me.”

The process took hundreds of hours and, of course, Justice Stephens did receive help from his clerk, court administrator and even the appellees’ brief.  
At that time I was teaching at UK and they had given me a place to leave my books and everything, so I just took all my research and left it out there in one of those little carrels.  I spent about 325 hours in writing and research.  The first draft was really rough.  

The part [Debra Dawahare] wrote about the history of education, I just virtually copied everything [she] said.  Maybe I changed a few things but that was easy because of the work Debra had done writing that brief.  

Most judges rely very heavily on the research done research by the parties.  You have to pick and choose, and I did a lot myself, but I relied on what [Debra Dawahare] wrote.

I went out probably three or four afternoons a week.  I’d leave about noon, and turn all of the work over to Susan Clary and to my secretary, and went to the [University of Kentucky] law school where I had just a nice academic atmosphere.  The students all respected my privacy.  I think that helped me concentrate.  But the first draft was really pretty much of a mess.  [My secretary] typed it all.  I had a really good law clerk [Jo Ellen McComb] who checked all the citations, quotes [and] punctuation.  

When I got through with the draft, there wasn’t anything about a new system.  It was just money.  And, I really wasn’t satisfied with that.  I couldn’t tell you why but I wasn’t satisfied.  I didn’t think money was the only problem.

Even then, after the first draft was completed, Stephens was not satisfied.  Late one night he realized what was bothering him.
I woke up one night.  I probably didn’t get to sleep but I just tossed and turned.  And, I did something I very seldom do, and that is drink in the middle of the night.  And so I had a vodka and tonic.  I was sitting there and we had a very modern apartment with real high ceilings a lot of windows and everything.  And I remember I turned the lights out and I’d sit, looking outside at the streetlights and so forth.  All of a sudden it occurred to me that what we’re talking about here is not just money.  Because there’s a lot of other evils in the system, a lot of other things that are wrong, a lot of inefficiencies, if you will.  

I just said, well hell, what we’re talking about here is a whole system.  And, 183 says, ‘an efficient system.’  System doesn’t mean one statute or fifty statutes, it means everything that goes into making up the common schools.  At least, that’s what I thought.  And so, I’ve never had any doubt that that was correct.  I think that’s absolutely legally correct.  I don’t even think that’s arguable.

So, I could hardly wait to get to work.  I went upstairs, shaved, showered and got dressed and got to Frankfort about five o’clock in the morning and started to write.  And, you know the results.

But the court’s decision to confirm Judge Corns’s decision was not unanimously supported.  The Justices differed on various points.  Was a ruling enforceable?  Should the court order the Governor and General Assembly to take specific actions?  How does one go about suing the General Assembly?  As Stephens recalls,
When I turned it over to the court, I circulated it, and there were five quick votes.  Roy Vance, he wavered a lot.  And Charlie Liebson - god love him.  He was the best friend I had on the court, and probably the smartest person on the court, he and Roy Vance.  But, he just could not – he was being so technical about it.  I’m satisfied that the opinion is legally correct.  However, I must tell you, there’s a couple of points that are a little weaker than others.  But, I still think they’re correct.

Charlie told me one time, ‘I just couldn’t vote for it.’  He wrote in his dissenting opinion that among other things we had just created a cottage industry [for those wishing to sue the state].  When I left the court there had been five cases under that.  I don’t know if there’s been any more or not.  I wrote four of the five opinions, but it was because I was in the minority on the other one.

Legal cases that touch upon numerous issues provide ample opportunity for reasonable minds to disagree.  This was certainly the case with Rose v. the 

Council for Better Education.  The separation of powers doctrine loomed large.  To what extent can the judiciary actually compel the legislature to do anything?  Can a governmental entity sue its creator?  To what extent can the judiciary maintain control over the legislature?  If only the leadership of the General Assembly is actually before the court, are other members compelled to act?  As Stephens explained, the court was split on some of these issues. 
One of the things…we argued about a lot was whether it would be enforced or not.  My point was, ‘I don’t care.  That’s not our job.’  I really felt that most of the members of the legislature really wanted a better system of education but they didn’t want to raise the taxes for anything, which is just the way they are now.  I felt that maybe if we directed them to do it they would.  And, this is what happened.  They had an election that year and they raised taxes 22%.  What they did, they went out to their constituents and said, ‘That G. D. Chief Justice.  We have to do it.  We’ve got no choice.’  I was willing and I think the other members who joined in the majority opinion were willing to do that, too.  I know they were.

Bill Gant wanted to make a lot of quicker remedies.  He wanted to order the Governor and order the legislature to do specific things.  I just didn’t think that was necessary.  It was my idea to say, OK, on a certain day there will no longer be an educational system.  Now, if you think any of those legislators are going to let the schools close and let the kids stay home without getting an education and the parents who work - it wasn’t going to happen.  I was really never worried that they wouldn’t do their job.  I did think they might do what they did in Pauley [v. Bailey, West Virginia, 1979].  They might do a little bit here and a little bit there.  That’s why I put in there that’s it’s still under our control.  So, if they don’t do the job…

Ray Corns deserves an awful lot of credit. But, [it] would have been a horrible mistake if that committee had been permitted to monitor.  That really would have been a violation of the separation of powers.  There is no doubt about it.

There was some issue, I think of some considerable magnitude, about the jurisdiction we had over all 138 members.  I told [Alabama’s Chief Justice], they’d had one of those suits down there, that ‘you’d better write it so that you don’t have to put every member of legislature in jail.’  I’m not sure we could have done that under that way that case was framed. 

I thought I handled [Scent’s complaint that school boards could not sue their creator] pretty well.  There were three or four interpretations of statutes.  The one I was really worried about was just suing Blandford and Rose.  That’s the one that worried me the most.  The effect of what we did was to say to the whole legislature, ‘You’ve got to create a new system of education.’  But only two of them were actually before the court.  The argument was, and it’s probably right, you can’t say that because Rose was President of the Senate and Blandford was Speaker of the House – that doesn’t mean that they can dictate what things [the General Assembly] does.  That was one of the points we discussed a lot.  Wintershimer said, ‘I think maybe I have a solution.’  And, he added…three words, ‘in this case.’  Somebody asked me later, one time.  I said, [if I were suing the General Assembly] I’d join every member of the legislature.  Hell, if it took a month to get service on all of them, I’d serve every one of them.  I told Tom Lewis that.

As both Scent and Combs understood very well, judges do not live in a vacuum.  They are informed individuals who understand that their decisions carry ramifications.  They are also products of their own set of life experiences.  In Stephen’s view, “Personally, I think judges have an obligation to think about, at least what they think the implication of their opinions are going to be on the public.”  Recognizing that his position is a departure from the concept of blind justice, he illustrated his point.  “If ninety-five percent of Kentuckians got a petition passed out and said, ‘We don’t think you ought to do this,’ the Supreme Court’s not supposed to pay any attention to that.  If you think they don’t, why (laughs) you believe in the tooth fairy.”  But he stopped well short of suggesting that he knew things would turn out after the announcement of the decision in Rose v. Council. 
I think we were lucky, in hindsight.  I’m not going to tell you I anticipated it.  We had Wilkinson who had campaigned on, among other things, no more taxes.  I think the quality of the legislature then was very superior compared to other times.  And, of course, they got together two days after [the decision was rendered] and had a press conference.  And it was a lovefest.  Fortunately, the legislature and the Governor got together and did a good job…

We had members of the legislature who realized, especially the leadership, that this was an opportunity to do something and get away with it without political blame.  Blame it on us.  That’s the way I felt about it.

Like former U. S. Supreme Court Chief Justice Earl Warren, Stephens relied very little on oral arguments before the court.  By the time briefs were filed, and the central issues of a case were studied, the members of the court tend to develop relatively firm views on how the case should be decided.  For many it was unlikely that a point would be raised in oral arguments that the members had not already decided.
Well, actually, I really gave the summary evidence very short shrift because they didn’t have any evidence.  Their only definition of efficient was made by the school superintendent of Woodford County.  He said, ‘You do the best you can with the money you’ve got’. [laughs]

You know, the thing about it is, I’ve got to tell you that in most cases, when the case comes up for oral argument most of us have read the brief and done our homework.  I’d say probably, with respect to me, I used to have my mind pretty well made up in probably seventy-five percent of the cases.  Now, I did change on certain [ones].  A good oral argument maybe would bring something up I hadn’t thought about, or whatever, but they [the appellants] were walking uphill when they walked in there as far as I was concerned.

Even though Stephens felt he was right on the law, he understood the potential impact of the decision and as the time approached for its release, he got nervous.
The last day…when we were putting the final touches on [the opinion] and proof reading it for the eighty-fifth time.  I got very nervous.  I gave advance copies to the Governor and to John Brock, with the admonition that it was not to be released to the papers.  Of course, the Governor’s office, Jack Foster, he released it.  One of the reporters said he was the one who released a copy of it to the papers. And that was wrong, but you know…  We thought we’d give them an opportunity to read it and prepare.

Twelve years after the opinion was rendered, Chief Justice Stephens talked about KERA and the Rose case and reflected on their relative importance.
	People ask me what I think about KERA.  I’ve never read it.  It’s so big and beyond my comprehension.  But, I read the Prichard Committee reports and there’s no doubt that education’s on the way up in Kentucky.  But you don’t undo in twelve years what’s taken a hundred years to do.  That’s my answer to people.

It sounds so self-serving when I say that [Rose was the case of the century], and I’m not known for my modesty or anything like that.  But I do think that there’s no case that’s had more potential impact on the quality of life of our citizens.

I think it’s a very important case.  Probably, as far as what I have done just from the pure standpoint of constitutional law, the LRC against Brown was more important.  It was better written and it was a unanimous decision.  I think probably as far as eventual use as precedent there’s already more on the [Rose] case because it sort of set the pattern on separation of powers.  It defined it and hopefully, straightened it out.  And I don’t think [subsequent supreme courts] have ever done anything to even modify that opinion.  I think as far as positive impact on the public there’s no case that can even touch this.

I don’t know how many states have followed.  I know, for example, the Chief Justices have two meetings a year and at every meeting for at least two years, I mean, hell, it’s all they wanted to talk about.  We’d go out and sit in a bar and we wouldn’t talk about women or sports or anything.  We’d talk about that case.  I know the guy from Massachusetts called me and told me they were going to come down with the same result and that he was going to use a lot of quotes from my opinion.  And then in Wisconsin, the fellow who was Chief Justice was my very dear friend.  [We] convinced him, but unfortunately, he was in the minority.  He didn’t get it passed.  And then, of course New York…

I never really had the chance to sit down and talk to [Combs] about [the case].

I have to tell you, which you’ve already guessed, I’m pretty proud of the opinion.  I really am.

After the decision and the passage of the Kentucky Education Reform Act, Governor Wilkinson organized a signing party, an event that prompted Stephens to reveal another side of his personality.
I think one of the funniest things that happened when Wilkinson had that big ceremony signing the KERA bill - there was a legislator from Lexington, (Ruth Ann Palumbo, who’s my niece, finally beat him.)…Anyway, this guy, Tony…he had voted against the KERA bill.  And, of course, all members of the legislature were sticking their heads in front of the cameras.  The place was packed.  He was over there too, and I got irritated with him.  And, I didn’t give a damn what he thought about me and I said, ‘What are you doing here smiling and celebrating?’  I said, ‘You were one of those few who voted against this bill.  You don’t need to be here.  Get the hell out of here.’  I’m sure he never voted for court bills after that, but it just irritated the hell out of me.

By the time of his interview with Sexton and Dawahare, Justice Stephens had been diagnosed with cancer.  Years previously, his children had asked him to make all of the decisions about his funeral arrangements in advance.  At the time 

of his interview he was doing just that.
I remember something I read in the constitutional debates about children of the poor and rich and from the mountains and so forth, and I thought that was exquisite language.   I’ll tell you how much I think about that language, and you’ll probably think I’m kind of morbid.  One of the things I’ve done, I’ve bought a plot at Lexington Cemetery and I’m going out there in a couple of weeks and buy a stone and put the quote on the stone.  That’s what it’s going to be if I can kind of capsule it, because it’s pretty long. 

On April 13th 2002, Chief Justice Robert Frances Stephens was buried at the Lexington Cemetery, Section 46, Lot 754 South ½.  Unfortunately other issues related to the cemetery and the family headstone prevented the inscription from being placed. 

Reaction to the Supreme Court’s Decision

Reaction to the Supreme Court’s decision ranged from elation to shock.   Combs expressed his surprise in his own inimitable style, saying, "We asked for a thimble-full and we got a bucket-full."  Speaker of the Kentucky House of Representatives, Don Blandford described his reaction to the Supreme Court verdict as, “Shock.” Blandford remembered calling together some legal advisors to review the opinion and it was not very long before they realized that the court had completely kicked out the education system as they had known it and ordered the construction of a new one.
The thing that struck me was that the General Assembly was totally, completely…the words were very strong - it’s our responsibility.  Even to the point that if you were to delegate it, if you were to get other people to do the job, you’re still responsible.

I remember my first reaction – ‘Where in the world do you start to build a complete new school system?’  After that initial shock wore off, we knew that we had to do the job.  We were under a court order to do it.  We settled down to work and got it done.  

Debra Dawahare had not been at all certain that the Council would win.  She felt that the Council had a strong case morally, but she did not think the case was nearly so strong legally:  
I kind of grew up with this case.  I came here [to Wyatt, Tarrant and Combs] in ’83.  I’d been here a few minutes and along comes this [case].  I did as they asked me to do.  It was not a popular case at the outset.  I think at the beginning, nobody thought we’d win.  And toward the end, even when it looked like we might get something, we didn’t expect what we got.  

Theodore Lavit, who assisted on the Council for Better Education legal team, wanted the court to retain jurisdiction.  He expressed concern that this point had not been argued more vigorously by the appellees: 
I think we made a mistake by not insisting on continuing jurisdiction.  I’m not looking at this case for an opinion.  I want far-reaching effect, constant review of this case from now until the next century.  Make them hold on to this case just like they held on to integration, in the United States District Court.

The biggest problem we’ve got with this case…is having to start all over and regroup.  Gear up again?  Well, hell, I don’t know if we can ever do that.  That man’s dead [Combs] and that man’s near dead [Guess].  We had it in our hands and…we just didn’t pluck the whole chicken.  We really didn’t.  And Bert Combs, with his influence, and his command, and authority – former Governor, former member of the Sixth Circuit, certainly could have gotten the court to handle that.  My complaint asked for that relief.  And, I begged Judge Combs to come down hard on it.  And he told me, ‘You know, half a loaf is better than no loaf at all.’ 

A brief period of uncertainty followed the decision during which it was unclear whether the legislature would accede to the Supreme Court’s decision or engage in a constitutional struggle.  At one point, Senator Michael Maloney engaged in a little saber rattling with Dawahare.   As she remembered it, “Senator Maloney actually said to me at a meeting, ‘Well, what are you going to do – put me in jail?  I’d like to see the Council for Better Education try that’.”  

The threat of a constitutional struggle was a topic speculated upon by Larry Forgy some months earlier, when he addressed the Kentucky Association of School Superintendents, after Judge Corns’s final ruling.  As an attorney, Forgy saw that the court had authority derived from the constitution, and could use sanctions should the General Assembly decide to “play hardball.”  Forgy said to the Superintendents, 
Now, I don’t want to get into what will happen in this state.  But let me tell you what…has happened in other states.  Contempt citations could be issued in a case like this where if individuals do not respond to these things.  Obviously, that is a power the court always has.  I don’t predict that.  I hope that never happens in Kentucky.  

Second thing is you could do what the court did in New Jersey, which is to shut down the school system – lock, stock and barrel – until the legislature of the Commonwealth provides funding adequate to create an efficient system of…common schools throughout the Commonwealth.

And the third thing is that we are not a lawless people in Kentucky…The nearest we ever came to evolving into lawlessness, I suppose was the Goebel assassination and the matters relating to Governor Beckam’s succession to the Governorship in 1901. …The political stigma of a General Assembly and its leaders defying an order…that had been upheld on an appeal by the Supreme Court would be a serious political matter to the people of this Commonwealth.  

But it quickly became apparent that legislators saw the possibilities in the situation and that they would respond as the court had directed.  According to Dawahare, 
I think some inspiration struck them and they thought, ‘This might be good for our careers.  We’ve already sustained some damage here just by the effect of being sued.  And if we defy the judgment it’s going to look like we’re stepping on the toes of little kids.  The media’s been behind them all along.  So, we’d better do this, because it helps us.  What a cynic I am. 

Senator Joe Wright took a broader view of the politics and social circumstances at work in the state at the time.
I think the way the Supreme Court, the action they took, was the only way that would have allowed the General Assembly to do what we did in the end.  I think [the decision] was so broad and so sweeping that special interests couldn’t even focus.  It was more than they could deal with quite frankly. 

In other sessions, you always had the KEA on one side and the School Boards on the other and the Superintendents on one side or the other.  Anything we tried to do to improve education always met with obstacles and stumbling blocks from some of these special interest groups.  Once we had this real broad decision we really didn’t find any real focus from any of these groups, opposing specific things, and so forth. 

When the Kentucky Education Reform Act was signed into law Kentuckians no longer elected a Superintendent of Public Instruction, an office that was abandoned in favor of an appointed Education Commissioner.  Kentucky had a new system for school finance, locally elected School Councils and a host of other new initiatives. By this time the former defendants had reinvented themselves as the heroes of Kentucky’s children.  Governor Wilkinson gathered Casey County school children in Frankfort for the signing, which Judge Corns and Chief Justice Stephens, also witnessed.  Stephens said at the time that he hoped those who would implement the new system would, “put aside all of their previous thoughts and feelings” and get the job done.  The irony was not wasted on Debra Dawahare.  She recalled, 
It amazed me.  I’m not going to name names because that’s not necessary.  People did the right thing and that’s fine.  Certainly, the reasons may matter in a spiritual sense but in a practical sense, I guess, the results are the same… But...the very people who were most upset seemed to have the attitude, almost immediately, that they had thought this up.  And what took us so long to give them the millions to grease the pork barrel? 

Sounding like one who had labored mightily in support of the Council’s effort, Senator Michael Maloney was quoted by Education Week saying, “I guess I feel a whole lot like the dog that finally caught the car he had been chasing.  Now that I’ve caught it, what do I do with it?”  Later in the same article, and sounding much less like a dog that had been chasing anything, he referred to legislative inaction as the ultimate weapon available should the General Assembly choose to defy the court.  He likened it to an “atomic bomb, [but] one we can’t afford to use.”  
In general, legislative leaders appeared ready to follow Stephens’ advice.  The Lexington Herald-Leader quoted “Eck” Rose as saying that the signing was “as significant as the first passing through the Cumberland Gap.”  In effusive comments, Rose praised Wilkinson for his leadership in getting the bill passed.  That same morning Wilkinson, who had previously said he would slice any pork 

barrel projects that were added to the bill, changed his mind and signed the $1.32 billion tax bill to pay for the reform.  Wilkinson continued to tout education reform as his own personal victory even to the point that legislators grew tired of agreeing with him.  Political scientist Penny Miller wrote,
Governor Wallace Wilkinson, during the heady days of his wife's abortive gubernatorial campaign, aired TV spots that made the misleading suggestion that Kentucky's education reforms were enacted 'all because of him.'  Legislators openly expressed their hostility and disdain, and stated that the General Assembly deserved most of the credit, and that some should go to the school districts that filed the Rose suit, to the courts, and to the education reform groups. 

As Sexton understood, some people need credit more than others.  However, any accurate assessment of who is most deserving of it must start well before the signing of KERA.  It starts with Arnold Guess.  He and his fellow consultants Kern Alexander, James Melton and Richard Salmon were vital to the effort and provided a vital scholarly establishment of the issues.  Alexander deserves extra mention because of his steadfast testimony in the court and before the legislature, even after he became the President of Western Kentucky University and had more at risk.  And, of course, the Council for Better Education itself, this tenacious group of school Superintendents from across the state including Frank Hatfield, Jack Moreland, Alex Eversole, Tony Collins, Eugene Binion, Steve Towler, and a host of others.  Then there’s the legal team including Bert Combs, Debra Dawahare, Theodore Lavit and others who led the Council through the judicial processes.  The judiciary was crucial to the success of reform including Judge Raymond Corns and Chief Justice Robert Stephens along with the other confirming justices Dan Jack Combs, William Gant, Joseph Lambert and Donald Winterscheimer.  Much credit is due to the media for keeping the issue alive in the minds of its citizens, particularly the state’s newspapers the Lexington Herald-Leader, the Louisville Courier-Journal, the Frankfort State Journal and others from Ashland to Paducah.  The numerous civic, professional and business groups that rallied support like the Prichard Committee, the Kentucky Chamber of Commerce, the Education Coalition and others broadened the base of support within local schools and communities across the state.  Governor Wilkinson deserves credit for abandoning his campaign promise not to raise taxes and for his efforts supportive of school reform, particularly after the Supreme Court’s action.  And finally, the General Assembly deserves credit for acting quickly and responsibly in the face of the Supreme Court’s decision, albeit belatedly and only when support for school reform had become a popular notion.
		On August 10, 1990, a testimonial banquet was held in Lexington to honor Bert Combs for his skill and leadership.  At that banquet, Council for Better Education President Jack Moreland invited seven speakers to reflect on Combs and the Council’s effort.  In his introduction of Robert Sexton, Moreland acknowledged, 
We would all be naïve to believe that any one group brought about the change that has occurred in the Commonwealth.  Long before the Council for Better Education was formed, long before reform was discussed, the Prichard Committee was trying to accomplish things for kids in Kentucky that were far beyond our imagination.

Sexton in return focused on the road ahead.

The heavier burden than we’ve had so far, I think, comes to those people who are going to follow after you. Because what we’ve done is change our schools in legislation but we haven’t changed our schools in reality…It seems to me that the greatest tribute that could possibly [be paid to Combs] would be to make absolutely certain that these changes that were initiated in your court case…result in good teaching, good administration, good parent involvement in the schools, and good schools.  I think to do anything less would be a mockery of what has gone on up to this point.

In his remarks, Combs was characteristically generous.  

I realize that I’m only symbolic of an effort which involved a great many dedicated Kentuckians and that many of those, and some of you, are more deserving than am I. I am overwhelmed by the comments of these eloquent speakers… and I think it is fair to say that it has been a good movement.  It has been successful by reason of chance, luck, dedication, effort, and so on.  

He had his own list of people he credited with the success of the movement.  Combs called them pioneers and like everyone else, he started with Arnold Guess.
…[H]e, and Frank Hatfield, Alex Eversole, one of the Superintendents in eastern Kentucky that everybody thinks are terrible, you know.  Alex Eversole was one of the pioneers that said that we ought to do something about this.  And Jack Moreland…one of those early people.  And you know he’s not from the hill country.  He’s from the educated, sophisticated country of northern Kentucky…These pioneers deserve more credit than I do, for initiating this movement and persisting.  And it goes back a little farther that that really...It goes back to the Prichard Committee, the first gentleman [Robert Sexton] of the Prichard Committee and…the most visionary member...a blind man [Edward Prichard] who saw more clearly than did most of the rest of us Kentuckians…

I am most grateful that you have come here this evening.  I know I don’t deserve the tributes that have been paid to me.  But, I am weak enough to be very appreciative.

Chapter Summary

	The Kentucky Supreme Court came to its landmark decision under the leadership of an activist Chief Justice, Robert F. Stephens.  An election changed the court’s composition during the case, but that change did not derail the consensus of the court around the major issues of the case.  Stephens decided to assign the writing of the opinion to himself and after hundreds of hours of study at the University of Kentucky, and at least one late night vodka and tonic, he changed the course of the opinion from one closely crafted around finance issues only, to a broad declaration that the entire system was unconstitutional.
Stephens acknowledged stretching some parts of the law.  He was most concerned about the court’s ability to require anything of the General Assembly when only the Speaker of the House and the President Pro Tempore of the Senate were actually before the court.  He finally advised that if he was the attorney, and even if it took a month, he’d serve every member of the legislature.  
Reaction to the ruling was initially shocking to the General Assembly, but after a brief flirtation with defying the court, the legislative leaders embraced the decision and used its political capital to reform the public school system in Kentucky.  This was immediately followed by a series of public proclamations where everyone from Governor Wilkinson to the various members of the General Assembly began taking credit for the reform.  But, it was the combined efforts of the Council for Better Education and its allies that persuaded the courts and gave the legislature the necessary courage to reform Kentucky’s schools.