By Brenna R. Kelly
Kentucky School Boards Association
Jack Moreland had been expecting a call on the morning of June 8, 1989.
It had been six months and one day since the Dayton Independent superintendent had watched an attorney representing his and 65 other school districts ask the Kentucky Supreme Court to force the state to adequately fund public education.
As superintendent of Dayton Independent, Jack Moreland (pictured then and now) helped lead the 1984 lawsuit against the Kentucky General Assembly. Moreland is now president of SouthBank partners, an economic development agency for Northern Kentucky’s riverfront. (Archive photo courtesy of the Kenton County Library)
But when Moreland’s phone rang, he was surprised at what the attorney, former Gov. Bert Combs, told him.
“Jack, we went after a thimble full and we got a tub full,” Moreland recalled Combs saying that morning.
In a far-reaching opinion, the Supreme Court not only agreed with the school districts but declared Kentucky’s entire system of common schools unconstitutional.
“They ruled every single law pertaining to education unconstitutional,” Moreland said recently, “not just the finance piece.”
This month marks the 30th anniversary of the Rose v. Council for Better Education decision which led to the transformation of Kentucky public education. At the time, Edweek noted that no state or federal court decision had ever issued such a sweeping order in a school funding case. Since then, the decision has been regarded as a turning point in school finance and has been cited by courts across the country, including in the Kansas Supreme Court’s 2017 decision that the state’s education funding was not adequate.
In his 101-page decision, Chief Justice Robert Stephens told the Kentucky legislature to start from scratch to create a public education system that could meet the state constitutional mandate of an “efficient system of common schools throughout the state.”
Rose v Council for Better Education timeline, click to enlarge
That system must be adequately funded by the state, Stephens wrote.
“Each child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education,” he wrote. “Equality is the key word here. The children of the poor and the children of the rich, the children who live in the poor districts and the children who live in the rich districts must be given the same opportunity and access to an adequate education. This obligation cannot be shifted to local counties and local school districts.”
The Supreme Court’s decision gave the legislature about a year to create and fund a new system. During the next legislative session, state lawmakers created the Kentucky Education Reform Act, designed to meet that challenge. But at the time, no one knew what would happen, Moreland said.
“We had worked toward this day for so long, I don’t think we fully comprehended what it would take if something like this were to have happened,” Moreland said. “I think we were all just kind of looking at one another and saying what do we do now.”
‘Rabble rousers’
Michael King, superintendent Silver Grove Ind., and Ken Honchell, a Fort Thomas Ind. board of education member, at an education forum at Newport High School held in the wake of the Rose decision in November 1989. (Photo courtesy of the Kenton County Library)
The decision was a watershed moment for Kentucky public education but getting there was a years-long slog filled with pressure, threats and doubt. The final decision came more than five years after the first rumblings of a lawsuit and more than three years after the suit was filed.
The Council for Better Education (CBE) started as a group of superintendents from property poor districts and other education advocates who were fed up with the legislature’s failure to fund the state’s schools.
“When they started out they were just rabble rousers and they were doing saber rattling and they were basically bad boys trying to poke the bear and get some action out of it,” said Richard Day, an education professor at Eastern Kentucky University whose dissertation “Each and Every Child” chronicles the lawsuit.
“You had to appreciate the times that we were in,” Moreland said. New state testing and the release of “A Nation at Risk,” a President Ronald Reagan-commissioned report which asserted that American schools were failing, put new pressure on districts to perform. Meanwhile, disparities between Kentucky’s rich and poor districts had widened.
“Those of us who were in property poor districts had a discrepancy of about 8-1, the school districts that were ‘have’ had about eight times more local money than we had,” Moreland said. “It was a system by which, based on where you were born determined what kind of an education you would get.”
Then came the memo. Arnold Guess, a former Kentucky Department of Education finance expert, sent a memo asking superintendents of the poorest districts and at least one of their school board members to meet in Frankfort.
Twenty-eight school districts were represented at what would become the first meeting of the Council for Better Education. Though they did not decide to sue at that meeting, word of the meeting and possible lawsuit quickly spread and legislators became concerned, Day wrote.
Then-Superintendent of Public Instruction Alice McDonald threatened to countersue if CBE filed suit, Moreland said.
“She said if you file this lawsuit, I’ll own your house,” he said. “So, we were under some pressure, but we survived.”
After a special session failed to make any significant changes, the council knew it needed to make a decision. The nine board of directors met at KSBA’s office in November 1985 and voted to sue.
Fast track to Supreme Court
Bert Combs, former Kentucky governor and federal judge, was in private practice when he agreed to represent the Council for Better Education for free. (Photo courtesy of the University of Kentucky)
To participate in the suit, the local boards had to vote and agree to pay 50 cents per student to cover legal costs.
The council had convinced former Gov. Bert Combs to argue the case along with Debra Dawahare, an attorney in his firm. Though Combs did not take payments, there were expenses.
“I had no great desire to work for nothing,” Combs said in an interview for Day’s dissertation. And as a prominent attorney, he “needed to sue the Governor and the General Assembly about as much as a hog needs a sidesaddle.”
But he did it anyway.
“The fact that Bert Combs came with us made a significant difference, not only in terms of what we had to offer to the court, but because of the stature that he brought with him,” Moreland said.
The case was litigated in Franklin Circuit Court for more than two years with superintendents and students testifying about the conditions at their schools. The attorney for the General Assembly accused the school boards of not levying all permissible taxes and superintendents of mismanagement.
Circuit Judge Ray Corns issued his decision declaring the state school system unconstitutional on May 31, 1988.
The General Assembly was not pleased and asked the state auditor’s office to audit the 66 districts that had filed suit. In order not to appear vindictive, Auditor Bob Babbage audited a sampling of all districts instead and “ultimately found that schools were managing their resources fairly well,” Day wrote in his dissertation.
The General Assembly immediately appealed Corn’s decision and both parties agreed to take the fight directly to the Supreme Court. Moreland attended the oral arguments on Dec. 7, 1988.
William Scent, the attorney for the General Assembly, argued that local school boards did not have the power to bring the lawsuit but Stephens pushed back on that notion during oral arguments.
“It may sue and be sued and do all things necessary to accomplish the purposes for which it was created,” Stephens said, noting that it was reasonable that if education was not funded, boards could raise the issue.
Scent also argued that Corns’ decision violated the separation of powers because it was essentially telling the legislature to levy new taxes and report to the court.
In his oral argument, Combs argued that the state’s education system had to be not only adequate in funding but provide for a substantially uniform education across the state.
“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,” he said.
Click here for the full “Rose” decision.
Has Rose Wilted? Click here to see how decision applies today.
Education as a fundamental right
This portrait of former Kentucky Supreme Court Chief Justice Robert Stephens hangs in the Capitol.
The decision declaring the state’s school system unconstitutional shocked the state. The headline in the afternoon edition of the Courier-Journal read: “Court’s sweeping decision orders state to build new, equitable school system.”
In interviews several years after his decision, Stephens explained that he had written a first draft largely focused on the finance issue, but it didn’t seem right.
“All of a sudden it occurred to me 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,” Stephens said in a 2001 interview with the Prichard Committee cited in Day’s dissertation.
The decision forced the legislature to act and in the next regular session the General Assembly passed KERA which created a formula designed to more equitably fund the state’s schools.
Day said one of the decision’s biggest impacts was defining what the constitution’s mandate of an efficient system of common schools meant, “but more importantly in my mind is it established education as a fundamental right and that raises the legal bar.”
Moreland, who became CBE’s president, later served as interim president of Northern Kentucky University and oversaw the merger of the state’s community and technical college system during Gov. Paul Patton’s administration. He returned to K-12 education for eight years as superintendent of Covington Independent before retiring in 2008. He’s now president of Southbank Partners, an economic development agency for Northern Kentucky’s riverfront.
“I’ve been blessed in my lifetime to be involved with lots of different, fun things but I’ll never be involved in anything that’s of the importance as what we did in this lawsuit,” he said. “It’s a great feeling to know that you made a difference.”
Brenna Kelly is publications manager at the Kentucky School Boards Association
Now if they only would address home-schooling requirements. Other states require home-schooled students to pass the same year-end tests as formally educated students. In KY, all the parent has to do is tell the school district that his/her child is ready to progress to the next grade. No proof, other than parent-kept paperwork, is required, and home-schoolers are rarely asked to present that paperwork. It’s no wonder we rank near the bottom of the list of states in quality of education.