Chapter Seven
Analysis: From Equity to Adequacy

Rose v. Council for Better Education was a landmark case that launched the third wave of American school finance cases in 1989.  Since that time plaintiffs in other states have been more successful challenging state financing schemes by suing under education clauses in their respective state Constitutions.  While Rose challenged inequities in Kentucky’s system, Combs argued strongly for adequacy as well.  In fact, it is Combs’ focus on adequacy that defines the present trend in school finance litigation.  In addition, it is believed by many that the emergence of the standards-based reform movement will help plaintiffs describe to the court a set of judicially manageable standards that will focus more on student outcomes than systemic inputs.  
In 2003, The Council for Better Education, the governor’s office and the Kentucky Department of Education undertook studies with the specific objective of answering the question, “What does an adequate education cost?”  If judicially manageable standards can be presented to the court, with the power of the ruling in Rose behind the effort, the court ought to be able to define what an adequate education means in Kentucky.  
But is it reasonable to expect that the law alone is sufficient motivation for the General Assembly to establish and maintain an adequate system of schools?  Evidence reveals that much more is necessary to assure that legislators fulfill their constitutional mandate.  Clearly, legislators must be given the public’s blessings to provide the necessary leadership.  Those blessings are apparently granted only when a public policy campaign reaches a level sufficient to assure legislators that they will not be blamed for spending the money necessary to fix the schools.
An exploration of the confluence of events that produced the initial success of the Council for Better Education reveals many elements – all of which seem crucial in the sense that each had the potential to derail the Council before it reached its objective.  Consider the potential consequences of Combs arguing his case before judges who were more judicially restrained.  Surely Justice Vance’s concerns over judicially manageable standards and the separation of powers or Justice Liebson’s concerns about the justiciability of the issues provided sufficient logic to throw out the case, if the court had been looking for a reason to do so.  Suppose there was no Prichard Committee or that the press was disinterested.  Would a high degree of public interest have been aroused by the Council’s action alone?  Even if the Council achieved a favorable court ruling but the General Assembly decided to drag their feet with years of baby steps and a lack of commitment to improving the schools: Where would Kentucky’s schools be then? 
Crucial to this case was the contemporaneous existence of a host of factors that elevated the Council’s efforts to unique heights.  It is useful to briefly explore some of the more significant.    
In this case, the issue of judicial policy making came directly into play in determining the ultimate result in Rose v. Council for Better Education.  As Brian Porto explained in his book, May it Please the Court: Judicial Processes and Politics in America, “The exercise of judicial power frequently results from the exercise of legislative power.”   Alexis DeTocqueville suggested that American democracy would naturally give rise to legal conflicts since prejudice toward “some private interests” would invariably seep into legislative action.  
In pubic law litigation, courts must decide whether the numerous public agencies, such as departments of education, enforce statutes consistent with legislative intent or constitutional command.  “Scholars disagree vehemently about whether courts…should make such broad policy decisions…[and] whether courts’ policy decisions produce the social change that the courts intend.” As Porto explained, 
Conflicting views about the wisdom of ‘majority rule’ lie at the heart of the debate about judicial activism.  Scholars and judges who revere majority rule and who believe that only the elected branches of government should make public policy reject judicial activism and favor restraint.  Their colleagues who are skeptical about majority rule and who believe that courts best protect minority rights reject judicial restraint and favor activism, especially if they think that courts can make public policy wisely.  

One of the most famous examples of judicial activism is found in the landmark case of Brown v. Board of Education of Topeka, Kansas, where the court first employed the imposition of detailed plans of action to remedy constitutional violations.  In Brown, the court redressed years of governmental inaction, focusing on the constitution, and deciding that the court’s own precedent established in Plessy v. Ferguson was wrongly decided.      
After examining the history of support for Kentucky’s public school children one is tempted to ask, Are our American rights most secure when legislators make public policy?  Kentucky’s history strongly suggests that, left to their own devises, the legislature would have been largely content to under-fund a very modest system of schools, for the benefit of a majority of its children.  Porto concludes, 
There is limited benefit in a debate about whether courts should make public policy, because they most assuredly do.  Indeed, judicial policy making is inevitable, because courts’ most important function is to protect constitutional principles against the tyranny of the majority…The courts’ constitutional role legitimizes their policy making…Courts do not initiate significant social change nor can they achieve it single-handedly, but they can influence it…by legitimizing emergent views, by forcing public officials to address long-standing problems, and by enabling them to do so without paying a high political price…Rose v. Council for Better Education…show[ed] a court forcing legislators to address long-standing problems.

In his Cornell Journal of Law and Public Policy article, attorney Avidan Y. Cover explored the political dimensions of education finance cases.  The article, titled “Is ‘Adequacy’ a more ‘Political Question’ than ‘Equality?’:  The Effect of Standards-Based Education on Judicial Standards for Education Finance,” discussed the relative advantages and disadvantages of cases argued on claims of inequality and those argued on inadequacy.  Cover cites the Rose case, in which the court “found even the state’s wealthy districts inadequately funded in comparison to the rest of the country.”   
Cover faults equality arguments for having weaknesses, including the very complex nature of the concept of “equality.”  The debate over the relevance of financial input to educational output requires an exploration of tax capacity and expenditures that are not easily understood by the public.  Equality arguments intrude on wealthier school districts and play to people’s fears that their schools will be diminished by the loss of funds and a loss of local control.  Equality claims can also run the risk of producing funding schemes that violate “other constitutional clauses regarding local control of property taxes” and that might even expand into other areas of government service.
Conversely, adequacy standards are clearly embedded in the education clauses of most state constitutions.  This makes it easier for the court to determine if the state has fulfilled its mandate.  Adequacy standards are exclusive to the constitutionality of education and are not likely to extend into other areas of government service.  Adequacy also appeals to many because “it appears to only promise a ‘floor’ criteria and no ‘ceiling’ for education funding.”   Thus adequacy arguments are not particularly susceptible to the fears engendered from the Robin Hood theory and actually produce allies of persons from wealthy and poor districts alike.  However, “given a state’s limited budget and resources, a judicial order that all districts must fund at a minimum level may often interfere with the state funding of wealthy districts.”  In this sense, it may prove to be very helpful that Kentucky created a substantially equal funding mechanism before tackling adequacy.
Cover warns that many judges may be concerned about the non-justiciability criticisms surrounding an adequacy claim if courts 
become more entrenched in the creation of education policy rather than adjudicating its legality.  Unfortunately, given the powerful impact of prior Federal and State cases regarding equality claims, adequacy may often be a litigant’s and court’s only recourse to correcting education finance wrongs. 

Kentucky’s political culture is always an interesting area of inquiry and one that is central to understanding policy change in the Commonwealth.  In her book, Kentucky Politics and Government: Do We Stand United, Penny Miller, finds that, "In the broadest sense, Kentucky is dominated by a political culture that is highly traditionalistic.  Variations and differences within the state are best viewed against this powerful traditionalistic background.”  She notes, 
Kentucky's political institutions - the legislature, the executive, the judicial, and political parties and interest groups - have changed significantly during the last two decades.  There is now a better balance between legislative and gubernatorial powers because the legislature has grown more professional and more powerful, while there has been less change in the governorship…Kentucky's legal system has…undergone a[n] overhaul…[making it] one of [the] most innovative.  Industrialism, in-migration, statewide urbanization, the demise of factionalism, the rise of candidate-oriented political campaigns, the growth of new special interests, and the emergence of a diversified middle class - are all acting to accelerate change within what still is a predominantly agrarian, rural, small-town state.  

She argues that education reform in Kentucky is partial verification, and the best example, of this change.  
Education reform, which involved every branch and every level of Kentucky government, may well reflect a dramatic shift in Kentucky's fundamental attitudes.  In Kentucky's traditionalistic political culture, there has long been a disdain for intellectual pursuits; Kentuckians in general do not believe in the intrinsic value of an education.  It is unlikely that there has been a shift to moralistic attitudes… More likely, Kentuckians have adopted more practical individualistic attitudes that reflect the fact…that communities and states cannot develop economically and financially without a well-educated workforce, and that individuals cannot prosper without training provided by sound public schools… With massive support from the press, probably reflecting changing attitudes among rank-and-file Kentuckians, dramatic change has occurred.   
	
Stephen Clements sees it somewhat differently.  In his dissertation, The Changing Face of Common Schooling: The Politics of the 1990 Kentucky Education Reform Act, he argues that, 
From the standpoint of political structure and culture, Kentucky remains, as Miller argued, a traditionalistic governmental entity.  The formulation and passage of KERA does not, however, represent so much an 'upthrust' of individualism, as Miller contended.  Rather, it appears that KERA - non-incremental, innovative policy change - came into existence because of, rather than in spite of, Kentucky's traditionalistic legislative environment, and traditionalistic structure and culture.  This happened in part because of the policy competition between the governor and legislature, which resulted from the growing strength of the General Assembly.  It also happened because the legislature itself, along with key education interest and activist groups within the state, had built an education policy apparatus with substantial capacity.  

The members of this education policy 'network,' whose members operated both inside and outside of the government during the late 1980s, interacted freely with policy leaders in the national education reform movement, and hence stayed abreast of the most-favored ideas for education change that evolved as the national reform movement progressed throughout the 1980s.  By the time of the Rose decision, so-called systemic, or structural, education reform was being promoted by most members of the national education policy community.

Clement’s position is consistent with Daniel Elazar's assertion that "Where the traditionalistic political culture is dominant in the United States today, political leaders play conservative and custodial, rather than initiatory roles, unless pressed strongly from the outside."  The General Assembly, as has been shown, was strongly pressed in the late 1980s by the Council for Better Education, the press, various policy advocacy groups, and ultimately, the courts.
	Fully understanding all of the forces behind Kentucky’s policy shift represented by the court’s decision in Rose is logically impossible.  The complexity of the events, the numerous private and public interactions of the various actors (including individuals and interest groups) over a long period of time and in different places, makes the topic difficult to study.  But the questions are important.  Were Kentucky’s special interest advocacy coalitions fundamentally weak, as Clements has suggested?  Or, did they ultimately play a crucial, if unaccustomed, role in the public’s acceptance of the Supreme Court ruling and the reform that followed?  The evidence in this study strongly suggests 

that the various advocacy coalitions provided a powerful and largely unified voice that was not only influential with the public, the courts, the governor and the legislature, but may well have been a necessary ingredient to the plaintiff’s success.  Furthermore, the role of these groups, most notably the Prichard Committee, gained enhanced prominence as the legislature debated KERA and each group got on board.  	
According to Paul Sabatier, “policy change over time is a function of three processes.”  An advocacy coalition consists of various actors “who share a set of basic beliefs.”  The coalition “seek[s] to manipulate the rules, budgets, and personnel of governmental institutions” in order to achieve certain goals over time.  “The second set of processes concern changes external to the subsystem in socioeconomic conditions…that provide opportunities and obstacles to the competing coalitions.”  The third set of processes involves the effects of “stable system parameters – such as social structure and constitutional rules” which constraint the various actors.  
If the Council for Better Education is considering another campaign to improve Kentucky’s schools – as apparently is the case – then an understanding of the effectiveness of these coalitions will be important.  The advocacy coalition framework (ACF) advanced by Sabatier argues that, “…understanding the process of policy change requires a time perspective of a decade or more.”  He suggests that “the most useful way to think about policy change is through focusing on 

policy subsystems, and the interactions of the different institutions that seek to influence governmental decisions,” at all levels, in a given policy area.  The competition for change in public policy among advocacy groups “can be conceptualized in terms of the policy’s priorities, assumptions and how to realize them.” ACF recognizes that policymaking is constrained by the same variety of social, legal, and resource issues present in the larger society. In the end, all of these competing “[c]oalitions seek to translate their beliefs into public policies.” 
With only this much explanation, one can quickly see the relevance to the various coalitions that were at work in the present case.  Consider, the Council for Better Education (a coalition of local Superintendents, retired mid-level state administrators, and their legal counsel), The Prichard Committee (a coalition of grassroots individuals and their ‘leading citizens’), The Partnership for Kentucky Schools (a coalition of concerned business people), The Education Coalition (a collection of leaders from various professional education groups, such as the Kentucky School Administrators, The Kentucky Education Association, the Department of Education, etc.), the press (whose editorial boards provided a strong voice for school reform) and more. 
A central feature of the advocacy coalition framework (ACF) is its focus on the belief systems of advocacy coalitions.  A belief system guides the coalition members concerning the problems that should receive the highest priority, the causal factors that need to be examined most closely and the governmental institutions most likely to be favorably disposed to the coalitions’ point of view.  The coalition then seeks to alter the behavior of governmental institutions in order to achieve its policy goals over time. 

The story of the Council for Better Education is rich with actors and coalitions whose core beliefs were well aligned behind a simple principle – that Kentucky’s schools needed improvement - somehow.  True, there were disagreements regarding secondary aspects.  For example, within the Education Coalition, the Kentucky Education Association had to be convinced to shift to a more open posture on accountability in order to gain agreement on improved adequacy of funding, including better salaries for teachers.  But, the core belief in the need for school reform was strong across interest groups and resistant to change.  
On the other hand, during the General Assembly’s consideration of KERA, the professional education advocacy groups, with their relatively homogenous reform proposals were specifically excluded from participation.  Throughout the process they were apparently regarded by the legislators as having relatively little clout and were very easily moved aside.  It was as if the legislature said to them, ‘We’ve seen your plans, but the Supreme Court says it’s our responsibility, so you’re just going to have to answer to us for a while.’	
So, why did the General Assembly act as it did in passing KERA?  A few things seem clear.  While many members probably wanted better schools, that desire paled when compared to potential consequences of a legislative tax hike without political cover for its members.  In fact, if the legislature had the political will to fund the Power Equalization Formula, a cheaper option at $400 million, the Council’s lawsuit would have simply gone away.  Such a decision would have achieved equity, but would have provided even less adequacy.
The members of Kentucky’s General Assembly considered their options: They could refuse to follow the court's directive and threaten a constitutional struggle.  But then, they would look like they were denying Kentucky’s children.  Or, they could look like progressive thinkers, heroes even, by taking the opportunity afforded them and running with it.  Given the circumstances, to do anything other than what they ultimately did would have flown in the face of reason and the benefits were large enough that, after the fact, legislators scrambled in front of cameras hoping to appear like reform was their idea all along.  Political expediency came directly into play.  Consider the arguments for passage of the Reform Bill:
•	Disparities in support for the schools got so bad that something needed to be done. 
•	Passage of reform supported the general legislative intent to improve schools as evidenced by the General Assembly's passage of legislation during the Collins Administration.
•	The public expected the General Assembly to follow the Supreme Court’s directives.
•	The General Assembly could now blame tax increases on the Supreme Court.
•	The decision supported the General Assembly's desire to strengthen itself against a historical pattern of gubernatorial control.
•	The reform movement was strongly supported by virtually every education establishment group in the state - which made strong opposition from an organized professional group highly unlikely.
•	The Prichard Committee had made significant inroads with public opinion on the issue of elementary and secondary education - which made strong citizen opposition unlikely.
•	Several supportive business interests made their presence in the public debate known through a series of "White Papers" issued by the Kentucky Chamber of Commerce, and others calling for better schools - which made strong opposition from the business sector unlikely.
•	The press pounded away with their support.  The Lexington Herald-Leader, for example, did some of their best work ever, pointing out corruption and other problems in the tax system while reform legislation was being debated on the floors of both houses.
•	The confluence of all of these factors made passage of the reform bill the only correct political choice.  It could be justified on economic grounds for the individualists.  It could be justified on the benefits to the common good for the moralists.  Most traditionalists, one assumes, would accept the General Assembly's decision, even though they might chose to complain about it later.
•	And by all accounts, it was the right thing to do for the children of Kentucky.

But at the time of this writing, more than a decade after signage of the Kentucky Education Reform Act, the political landscape has changed.  Once again the Council for Better Education appears to be the group willing to raise the legal questions and act on the issues.  But this time the Council for Better Education got a quick positive response from Superintendents in 140 local and county public school districts, far quicker than the first effort.  This underscores the contention that adequacy is an easier issue for all school districts to support than equity - being less likely to alienate affluent districts.  In the present case, Superintendents are being asked to support a study, rather than litigation - at least at this point.  The quick commitment to membership by such a large number of Superintendents also speaks somewhat to human nature.  With the Supreme Court’s vindication of the Council for Better Education in the Rose decision, membership becomes a much more comfortable and popular idea among the state’s Superintendents.    
The press, the Prichard Committee, and the Partnership for Kentucky Schools have remained active in their advocacy for strong public schools.  Unlike Alice McDonald, the current State Education Commissioner, Gene Wilhoit has advocated that Kentucky do what is necessary to assure that the schools are adequate and meet their stated objectives for students.  But other changes cast doubt about the chances for another successful challenge to Kentucky school funding scheme.  
First of all, the “God of Elections” has not smiled quite so brightly on those desiring an activist judiciary.  Some observers have concluded that the Stephens court had significantly more activist tendencies than the present court under Chief Justice Joseph Lambert.  If true, and assuming such a challenge would once again be appealed to the Supreme Court, it presents the most likely roadblock to future plaintiffs.  After all, Rose was not a unanimous decision.  If there is good news for plaintiffs, it is that any future cases tried in Kentucky will be tried in a new light – under which education is a fundamental right for each and every child.
The composition of the General Assembly has also changed.  At the time of KERA’s passage, the Democratic Party controlled the Kentucky General Assembly as it had for years.  Republican competition for seats had been weak at best.  But by 2002, Republicans held a majority in the Senate and were strong 

enough to block Governor Paul Patton’s efforts to pass the state budget.  As for the Governor, the situation is uncertain.  
While he started supporting the idea of more adequate schools in February of 2002 and made it clear that he would advocate for needed improvements, by fall a scandal with possible ethics implications had significantly weakened the Governor and thrown his effectiveness into question.  He abandoned his previously announced interest in seeking a U. S. Congressional seat.  
Public education in Kentucky is once again at a crossroad.  A declining share of state funds for education and an economic downturn which lead to a budget deficit have conspired to threaten the progress made in Kentucky’s schools in the 1990s.  Once again, the question will be asked, ‘Do Kentucky’s public schools meet their constitutional mandate?’  KERA did not represent a final resolution of Kentucky’s long-standing lack of support for its schools.  It is important to view the passage of KERA from the broader historical perspective.  And from that perspective, there is cause for concern.  It is important to remember that the Rose decision is remarkable specifically because it was exceptional - a break from Kentucky’s traditional lack of attention to its schools.  What are the chances Kentuckians will rise again to maintain strong support for public schools?

Chapter Summary

Bert Comb’s strong argument on the issue of adequacy in Rose v. Council for Better Education, defined a new trend in school finance litigation.  Plaintiffs in other states have been more successful challenging state funding schemes since that time.  The standards-based education movement has also served to help the courts define judicially manageable standards that are focused more on student outcomes than they are system inputs.
To help answer the question, “What does an adequate education cost?” the Council for Better Education and the Department of Education initiated adequacy studies.  With the constitutional mandate affirmed by Rose, and the availability of technical studies on adequacy, one might think that future plaintiffs would be assured success in Kentucky.  But as this study has shown, the law alone is apparently insufficient to compel the General Assembly to maintain an efficient system of schools.  Several other issues come into play including public engagement and support for quality schools, judicial activism, separation of powers, legislative political will, the ability of advocacy coalitions to maintain common core beliefs, and leadership from educational leaders.   What seems less in question is the commitment of the Council for Better Education, the Prichard Committee and the press to high quality schools for all of Kentucky’s children.