Kentucky's Educational Legacy after Rose

NOTES for ISER:

EACH CHILD, EVERY CHILD:
THE STORY OF THE COUNCIL FOR BETTER EDUCATION,

EQUITY AND ADEQUACY IN KENTUCKY’S SCHOOLS

Richard E. Day, Ed. D.


Welcome:

Good day to all of you attending the 6th International Symposium on Educational Reform in the Republic of South Africa.

Let me begin by thanking Dr Lars Bjork and Dr Justin Bathon of the University of Kentucky for making this presentation possible. I would also like to extend greetings to South African educational governing boards leader, Paul Colditz. I wish I could be with you at this most exciting time in South Africa - and this most challenging time for educators hoping to provide a stronger workforce and better economy for all the people.

Introduction:
· People Interested in school reform – interested in the 1989 Kentucky Case - Rose v. Council for Better Education
o cited 380+ times in US
· WHY the interest?
o Because Kentucky had NOT been seen as a leader in education before that time.
· When the Kentucky Supreme Court found the entire system of schools to be unconstitutional – it provided the political will for the legislature to write a new school law in 1990 called the Kentucky Education Reform Act (KERA)
· Metaphor –
o Imagine the worst football team in the best league
o Like other US states, Kentucky has shared in the benefits of universal education
§ Economy has advanced
§ People’s lives improved

· But compared to other US states - support for the schools has been a serious problem throughout Kentucky’s history.
o Kentucky’s Constitution requires our state legislature to provide “an efficient system of common schools throughout the state”
§ define “efficient”
§ define “common”
§ “throughout the state” refers to equity

· But our state lawmakers have been content to allow Kentucky’s schools to rank among the least supported in the nation.
o This is about $.
o Out of 50 states, Kentucky ranked 49th so often - Thank god for Mississippi

· Today, I will attempt to put that struggle for adequately funded public schools into an historical context, focusing on the Kentucky Supreme Court’s landmark decision in Rose v. Council for Better Education.

· I examine this decision in light of present efforts to define and assure “an adequate education for each and every child” which is our state’s standard.

o This is a new standard that came out of the Rose case.
o Now declared a fundamental right

· The Council for Better Education began as a collection of local school superintendents from the poorest schools districts in the state.
· The activities of the Council for Better Education were part of a national effort to determine a set of judicially manageable standards for equitable and adequate school funding.
o Because American courts operate under the separation of powers doctrine, judges are reluctant to tell the legislature what to do about anything.
o If one is going to go to court – one must help the court by presenting a way for judges to determine whether the legislature has met its Constitutional obligations - or not.
o This has contributed to the standards movement in American education
o Equity refers to a relative balance of the financial resources made available to Kentucky’s school districts.
o Adequacy is an issue of whether schools have the resources necessary to meet the goals set by the state.
o When schools are inadequately funded, equity and adequacy are forced to compete.

· When our expectations of the schools are low, we don’t have to spend much money on them. However, Kentucky’s assertion that “every child can learn and most at high levels” is no easy standard.
o In this sense, an adequate education for Kentucky’s children is thought of as sufficient in quality and quantity to ensure that all schools satisfy the fundamental rights of all students.

· I spent several years studying the Council for Better Education – a group of local school superintendents
o Focusing on 1984 through 1993 as Kentucky sought to implement a new system of common schools.
o Bert Combs - Council’s efforts “were of sufficient merit to warrant an historical treatment,” and that “future lawyers would benefit from a chronology of Council events.”
o Interviewed the members of the Council, the judge, the attorneys, and others
o some insight into the effort required to bring about this historic result
§ Local school superintendents sued the state legislature
· The state superintendent of schools threatened their jobs
· Legislators were mad at them and put pressure on local board members
· It required personal courage to sustain the suit
o Kentucky Education Reform Act is – a true exception in Kentucky’s long history of modest support for its schools.
o Rose v. Council for Better Education can best be seen as a pioneering effort to alter Kentucky’s history and as a move toward more social justice and economic prosperity for all children of the state.

Discussion:

· For reasons owing to Kentucky’s traditionalistic political culture and agrarian attitudes, the Commonwealth was slow to develop a system of common schools and once finally established, support over the years was weak.

· The achievement of Kentucky’s children suffered as fiscal support for the schools languished among the poorest in America along with the rest of the South.

· Litigation emerged (1968 – 1973) to challenge state systems of school finance.
o Plaintiffs were frustrated in their attempts to use the U. S. Constitution
§ Rodriguez (1973) education not a fundamental right under the US constitution
§ “Equal protection” under the 14th amendment applies to individuals not governmental entities
o found more success using education clauses
· The Kentucky Supreme Court, in Rose v. Council for Better Education
o Declared education to be a fundamental right
o Reaffirmed the Legislature’s sole responsibility to provide an efficient system of common schools and defined the elements of that system.

Here’s how it happened:

· On December 31, 1983, incoming State School Superintendent Alice McDonald, released Arnold Guess

· This act freed Guess
o He called together a group of twenty-eight School Superintendents
o With outstanding technical consultants
o legal counsel
o the Council lobbied the legislature for change
o and threatened to sue using $.50 per child in school funds
o The Council met with hostility from legislators who did not want to be blamed for the existing conditions, and from the State Superintendent
o When lobbying efforts failed, the Council filed suit.

· The Council greatly benefited from powerful outside forces
o the press,
o the Prichard Committee,
o and a host of civic, business and education groups - all pressing for better schools.
· But despite this groundswell, the legislature tried to stop the districts from using school funds to sue the state
o did not go far enough to satisfy the Council or forestall litigation.


· Plaintiff’s attorney Bert Combs would have preferred a federal court,
· the appropriate plaintiffs
o the children
· and who were the defendants,
o there was no precedent for suing the state
o Do you serve every member of the legislature?
o They decided to follow the model for suing the US Congress by suing the legislative leaders
· and by determining the individuals whom would best contribute to the case.
· Separation of powers problem
o 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;

· Defense attorney, William Scent
o argued that the inequities would not exist if the plaintiff had not mismanaged funds
o and had passed permissive taxes
§ It is true that local officials did not want to raise taxes either
o the Legislature had done the best they could since the people of Kentucky did not want more taxes
o and 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.
o The best example of the Prichard Committee’s activity may be their Town Meeting
§ 20,000 people meeting at the same time
§ in 140 locations
§ representing every school district
§ tied together by a program on Kentucky Educational Television
§ with local activities after the program
o Or their Institute for Parent Leadership
§ They now have 1,500 people across the state who have been trained to become active in their local schools
§ Maintain contact with about 1,350 of them

· 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.
o Following a principle used in a West Virginia court, Corns established an Education Committee to advise the court
o the Legislature punitively called for audits of the plaintiff school districts.
o Audits showed that schools were managing their resources fairly well.
· Immediately appealed to the Supreme Court
o Scent argued that the Legislature had as its goal the best system possible in Kentucky.
§ recent legislative changes had a positive effect
§ “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
§ that Corns’s Education Committee was simply a “dog and pony show” which violated the separation of powers doctrine. (Which Justice Stephens later suggested was indeed unconstitutional.)
o Bert Combs and Debra Dawahare focused most of their effort on confirming the lower court’s conclusion
o 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.


· The Kentucky Supreme Court came to its landmark decision
· activist Chief Justice, Robert F. Stephens
· Stephens decided to assign the writing of the opinion to himself and after hundreds of hours of study at the University of Kentucky, he changed the course of the opinion from one closely crafted to finance issues only, to a broad declaration that the entire system was unconstitutional.

· The heart of the Rose case was the court’s definition of an efficient system of common schools.
o The Supreme Court discussed the characteristics of an efficient system of schools:
§ one established and maintained by the Legislature
§ to be substantially uniform throughout the state,
§ free to all Kentucky children,
§ and one that provides equal educational opportunity regardless of place of residence or economic conditions.
§ must also be sufficiently funded,
§ free of waste, duplication, mismanagement, and political influence
§ and it must have as its goal the development of seven specified capacities. These capacities enumerated a substantial set of skills that each student must learn.

· Stephens was most concerned about the court’s ability to require anything of the Legislature when only the Speaker of the House and the President Pro Tempore of the Senate were actually before the court. After the fact, he advised that if he was the attorney in such a case, and even if it took a month, he’d serve every member of the legislature.

· Reaction to the ruling was initially shocking to the Legislature

o a brief flirtation with defying the court,
o the legislative leaders embraced the decision
o used its political capital to reform the public school system
o followed by a series of public proclamations where various members of the legislature began taking credit for the reform.
o 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.
· By 1993, Kentucky was spending approximately $5300 per pupil and its standing among southern states rose from 12th to 7th while continuing to lag about $1000 per child behind the national average.
· By 1999, Kentucky had risen from 49th to 36th in the nation.

· After Bert Comb’s death, and concerned by the erosion of education’s share of the state budget the Council for Better Education reemerged in 2007, suing the state again. (Young v Williams: 03-CI-00055 & 03-CI-01152)
o The Council commissioned an adequacy study
o Claimed that funding is an “essential and minimal element” of an efficient system of schools
o And that a standards-based system is a rational way for the court to look at the schools
o But the Council specifically asked the court to require the legislature to raise taxes
o the Franklin Circuit Court refused to “pierce the separation of powers” and rendered summary judgment for the defendants.

Conclusion:

From Rose: Each child, every child in this Commonwealth must be provided with an equal opportunity to have an adequate education... The children of the poor and the children of the rich must be given the same opportunity and access to an adequate education.

The landmark Kentucky Supreme Court decision in Rose v. Council for Better Education is singular event that not only changed the state’s system of schools, but also started a third wave of national school finance litigation based on equity and adequacy claims and education clauses in state constitutions. Without the political cover provided by such a judicial ruling, combined with strong grassroots citizen advocacy, history strongly suggests that the legislature would have happily contented itself to under-fund a modest system of schools for the benefit of most students.

Thank you:

Before taking questions, via Skype, let me thank you again for this opportunity to share with an international audience, our experience with school reform in Kentucky.

Complete information on my study is available online at http://www.kycbe.com/ Find the heading for “The Rose Case” and click on “More Reports.” There you will find my study, the listing of school finance cases, and a chronology of Council for Better Education activities.

And now, we’re ready for questions.

Big Effort - Not Enough

From Kentucky experience, we accept that

an inadequate system takes time to rebuild,

but the process ought to be expected

to raise measurable student outcomes

to the needed level within a single generation.

--Weston & Sexton

A new paper on Rose and political mobilization in Kentucky from Susan Weston and Bob Sexton just came out.

At first read, it appears the authors argue a Kentucky judiciary that was "both bold and restrained" and that "the system could not be made constitutional without lasting legislative monitoring."

Justice Robert Stephens thought of himself as a judicial activist but he did demonstrate restraint by not exceeding the court's authority according to the separation of powers - a decision that would have later benefitted the plaintiffs in Young v Williams. Stephens struck down Judge Ray Corns' idea of a committee to monitor the legislature for the same reason, but made it clear that it was the General Assembly's responsibility to monitor the continued constitutionality of the system - something the legislature has almost never done very well.

This from Prich:

"Substantial and Yet Not Sufficient" provides an analytic overview of the origins, impact and implications of Kentucky's landmark educational adequacy litigation, Rose v. Council for Better Education. It provides important new material and insights regarding the political mobilization for school reform, legislative action, statewide implementation, and recent fiscal difficulties that have occurred over the past 20 years since the case was decided. The authors make their case that Kentucky's 1989 court ruling and 1990 legislation unquestionably led to substantive improvement for all students in the state. Based on their experience, they also share a set of thoughts about what counts as successful work to build school systems that serve all students well.

Our experience illustrates that a restrained judicial ruling, at least in the context of lasting political mobilization, can yield quite major legislative steps forward.

Final Installment of Rose at 20

Justin has posted the final video from Rose at 20 over at EdJurist.

It features chats from Craig Wood of the University of Florida, William Thro of Christopher Newport University, and William Koski of Stanford University Law School and the moderator of the symposium Kern Alexander, a consultant to the Council for Better Education and a major player in the case.

Rose at 20: Kentucky Law Journal Symposium from UK College of Education on Vimeo.

Thanks again to Justin Bathon and the Education Law Association along with the folks at UK Education and Law for a great program on an important toppic.

My Favs from Rose

Justin has added another video from Rose at 20. This time it's Debra Dawahare and Ray Corns, easily the most delightful, and entertaining chats of the evening.

Thanks once again to EdJurist:

Rose at 20: Debra Dawahare, Esq. and Judge Ray Corns from UK College of Education on Vimeo.

This is the second installment (first here) of the Rose at 20 videos from the ELA conference in Louisville. See here for details and thank yous. In this video, Debra Dawahare, the counsel for the plaintiffs and Ray Corns, the district court judge, tell their stories about the case and reflect on its impact and the future of school finance in Kentucky. At the beginning, our new Deans of the Education and Law school introduce themselves.

Rose at 20: Beshear

Over at EdJurist, Justin has begun posting videos from the recent Rose at 20 event. He says,

Today, the first of those is the Governor of Kentucky, Steve Beshear. The first part of this speech, really the first 7-8 minutes, is absolute gold. I was really highly impressed with the Governor and he was really being honest in his statements because he was a player in the litigation as the Attorney General and Lieutenant Governor of Kentucky around the time of the case. He brought a good deal of political heft and class to the event. Enjoy:

Rose at 20: Kentucky Governor Steve Beshear from UK College of Education on Vimeo.

Thanks Justin and Brad Duncan for doing the video.

Rose at 20

Yesterday, our local EdJurist posted the flyer for next week's symposium on the Rose Case.

The highlights:

• Free
• Brown Hotel in The Ville
• This Wednesday 6PM - 9PM
• State and national school finance experts
• The past and future of school finance litigation
• The Gov
• The Todd
• Kern Alexander, Debra Dawahare, Ray Corns, R Craig Wood,

Thanks for the shout out, Justin!

Be There or Be Square

More details on Rose at 20

Over at EdJurist, Justin Bathon has confirmed some more details for the upcoming event in conjunction with the Education Law Association in Louisville, Kentucky on October 21 in the evening.

The event is tentatively called "Rose at 20: The Past and Future of School Finance Litigation" and will be held in the Brown Hotel's Gallery Ballroom in Louisville. More details will follow, but I'll leak a little secret on the blog that a very high ranking Kentucky official is planning to be in attendance and speak at the event.

We also have a lot of other dignitaries on board as well as several experts on school finance both in Kentucky and around the nation (Kern Alexander, Craig Wood, William Thro, Bill Koski, to name a few). The Kentucky Law Journal is doing a special issue for the occasion. And, Scott and our new colleague Neal Hutchens (who I hope to have another announcement about coming soon) have been helping out on the event.

Thanks for the shoutout, Justin.

20th Anniversary of Rose is Cause for Scholarly Celebration

Save the Date

Symposium on the Twentieth Anniversary

of the landmark school law case

Rose v Council for Better Education

October 21st

6:30-9:00 PM

The symposium titled

Rose at 20:

The Past and Future of School Finance Litigation

will take place at

The Brown Hotel

Louisville, Kentucky

Presented by

The University of Kentucky

College of Law

and

College of Education

in cooperation with

Education Law Association's 2009 Conference

This symposium will explore the

1989 Rose v Council for Better Education case

(790 S.W. 2nd. 186)

one of the most influential and important

school finance decisions in American history.

More...as details become available

Kentucky School Finance History

Over at EdJurist, Justin Bathon has been producing videos illustrative of various school law topics.

On Tuesday he posted a nice explanation of the history of school finance in Kentucky as outlined by Council for Better Education co-counsel Debra Dawahare's "Public School Reform: Kentucky's Solution" and Bill Hoyt's, "An Evaluation of the Kentucky Education Reform Act."



Nice. I found myself wanting more, like something on the Rollback law.

Notes: The number of CBE school districts at the time the Council's case was filed was actually 60 according to the council's own records. CBE kept saying 66 because that represented the number at which Bert Combs agreed to represent them. *

It should be noted that the Corns Committee Bathon refers to was determined to be an unconstitutional intrusion into legislative authority. This separation of powers issue was also key to the summary judgment issued in Young.

* Day, Richard E., Each Child, Every Child: The Story of the Council for Better Education, Equity and Adequacy in Kentucky’s Schools, Ed. D. diss., University of Kentucky, 2003

BIPPS Twists South Dakota School Funding Case

The Bluegrass Institute is at it again.

Self-styled education analyst Richard Innes has now turned to the law. He states in his post "Surprise – Quality Education Isn’t Constitutionally Guaranteed" (with the subtitle, "At least in South Dakota") that a South Dakota judge issued a ruling "concerning a school funding gambit much like the 1989 lawsuit that brought KERA to Kentucky."

In South Dakota, it looks like at least one judge understands the restrictions on what the judiciary can, and cannot tell the legislature to do with tax dollars. It’s a separation of powers issue – one that probably got violated here in Kentucky in 1989.

As is too often the case, Innes got some things right and some things wrong - but still ended up with the conclusion he wanted in the first place. No money for schools.

Separation of powers is an important issue - one that lead attorney Bert Combs took great care to avoid in the 1989 Kentucky case, Rose v Council for Better Education. The court was specifically asked to render a declaratory judgment only - that the educational system was unconstitutional - and did not ask the court to direct the legislature to do anything specific. That's up to the legislature - and that was the key to avoiding what Innes suggests "probably got violated." It never did.

No specific remedy was sought, so the legislature's authority to decide what to do about its unconstitutional school system was never in question. In fact, for a brief time, legislative leaders considered a constitutional struggle by ignoring the court - but soon thought better of it.

The reverse was true in Franklin Circuit Court with Judge Thomas Wingate's 2007 decision in Young v Williams, where the schools went back to court in an adequacy suit and asked for a specific remedy - to require the legislature to raise taxes. They got a summary judgment instead.

The Rose case argued equity and adequacy. The South Dakota case is an adequacy case. Both cases focused on the education language in their respective state constitutions - but the language is different for each state.

Based on the strength of the constitutional language in Kentucky, the Supreme Court declared that education is a fundamental right, that the General Assembly is solely responsible for providing sufficient funding for schools to reach their goals but never said how, or how much.

The South Dakota Constitution requires that the legislature establish and maintain a "general and uniform" system of public schools, adopt all "suitable means" to secure the advantages and opportunities of education, and set up taxes to "secure a thorough and efficient" school system.

The South Dakota judge noted that their state Constitution does not specifically require a "quality" education.

The constitutional language requires an education system that provides students with the opportunity for a free public education that is "adequate to allow students to be responsible and intelligent citizens," the judge said. However, adequacy does not require an education that prepares a student to find meaningful employment or qualify for higher education, the judge wrote. This is what passes for a solid decision at BIPPS.

Then without presenting any evidence of it, Innes proclaims,

South Dakotans are incensed by the million dollar waste this has caused to date.

There is, however, evidence of students going to school in trailers because school districts can't afford to build proper buildings, and the legal challenge is being supported by two-thirds of the state's 161 school districts. Some of those folks are probably incensed.

And of course, in the best scenario, the legislature would sufficiently support its schools as is its constitutional duty, and nobody would have to sue anybody.

In any case, this issue is going to be decided at the Supreme Court level, just like in Kentucky. This is South Dakota's first school funding challenge. Stay tuned.

Slashing the schools budget, illegal and unwise

Mike Rebell is executive director of the Campaign for Educational Equity, based at Teachers College, Columbia University, and was co-counsel for the plaintiffs in the CFE litigation.

Like the landmark Rose v Council for Better Education in Kentucky, CFE v New York was a "third wave case" which argued "equity" and "adequacy" under the provisions of the relevant state constitutions. The New York court, on its own, issued a “template” definition that included both substantive educational goals and specific resource essentials.

The New York court correctly outlined the meaning of "adequacy." Turns out, adequacy is a moving target. It is the amount of funding necessary to meet your goals. If your goals are high, it costs more.

The Kentucky General Assembly's only "constitutional" alternative to maintaining sufficient funding - something only the legislature can determine - would be to lower the state's goals. That would be a economically poisonous.

Rebell's comments are made in light of New York's constitution which requires a "sound basic education." Kentucky's constitution sets a higher and somewhat clearer standard:

It is the non-transferable duty of the General Assembly to establish and maintain "an efficient system of common schools throughout the state."

This from Mike Rebel in the New York Daily News:

On Tuesday Gov. Paterson proposed $2.5 billion in spending cuts to next year's state education budget. Of that number, $1.8 billion represents a deferral of increases committed to the state's children by the Legislature as a result of the Campaign for Fiscal Equity lawsuit that concluded in 2006 - a lawsuit I helped lead. The remaining $700 million represents an actual 3.3% reduction from this year's education spending level.

Times are hard, and New York cannot avoid reckoning with its budget crisis. But the plain facts are that reducing appropriations to New York City's schools below the actual amount spent this year would be unconstitutional. And while much of the scheduled increase could legally be delayed, doing so would be as unwise as failing to address the financial crises on Wall Street or in Detroit.

In 2003, New York's highest court ruled that the state's education funding formula denied city public school children the "sound, basic education" guaranteed them by the state's Constitution. The Court gave the state a period of time to determine "the actual cost" of such an education and to revise the formula to provide that amount to every school in the city. The state stalled past the court deadline, and it took another court order to get the process going. Now that a plan for constitutional compliance is underway and the money is actually flowing, the state cannot legally roll back its progress by reducing the level of resources it has begun providing.

Slowing the rate of new increases does not raise the same constitutional issues, but it does mean that, during their formative years, millions of children would be denied the resources they need to become capable citizens and workers. It also means that what once appeared to be the state's commitment to eliminating achievement gaps will, in hindsight, have become just a fleeting aspiration.

Obviously, the governor - a good man who has fought hard in the past on behalf of education and children - must find ways to overcome an enormous state budget deficit. But there are better solutions than shackling our children's future. One possibility would be to impose an extra tax on the wealthy in order to maintain adequate education funding levels. If Paterson wants to avoid such a tax increase, he should instead urge the governors of the other 15 states who are currently cutting school funding to join him in petitioning the President-elect to throw a rope to the states to help them maintain their commitment to educational excellence and equity.

Perhaps as part of the new administration's anticipated stimulus package, we should invest in the human capital we need to maintain the country's prosperity. Safeguards could be put in place to ensure that the money goes immediately and directly to maintain educational services without sloshing around in states' general funds.

I estimate that such a program would cost about $20 billion nationwide for the next year. That is a lot of money, to be sure, but it pales in comparison to the bailout given to Wall Street, and it would arguably be money much better spent. If we can rescue banks and car manufacturers, surely we can afford to do the same for our children.

Ray Corns Named Associate Commissioner

When Kevin Noland retired, it never occurred to me that KDE might find anyone with his depth of understanding of the major issue facing Kentucky schools - funding that is inadequate to reach the legislature's goals.

Then, wham. Judge Raymond Corns.

Corns will bring the proper judicial temperament to the issue. He understands what the courts can do to help the schools - and importantly, what they can't.

Along with former Governor (former federal judge, and Council for Better Education attorney) Bert Combs, Corns understood the tightrope Kentucky courts are on when directing the legislature.

In Rose v Council for Better Education, Combs wanted the court to direct the legislature to exercise their authority and proceed “as far as they can” to enact an efficient system of public schools. How far was that? Combs told the court, that they could say to the Speaker of the House and the President of the Senate, “You can exercise your authority to propose legislation that is constitutional.” That would leave them knowing what the law is, and the governor would know, and the General Assembly would know.

Combs noted that nowhere in the original circuit court ruling did Corns’ direct the General Assembly to pass any particular laws, or derive school funding from any particular source, or to adopt any particular system. The circuit court went as far as it could go.

One wonders if Corns' good counsel might have produced a different result in the Young case.

He isn't replacing Noland who was a deputy, and he may lack a working knowledge of all of KERA's nooks and crannies, but he'll get there pretty quickly.

This looks like another solid choice by Draud.

(FRANKFORT, Ky.) – Ray Corns, the former Franklin County Circuit Court judge who issued the judgment that led to the Kentucky Education Reform Act (KERA) of 1990, has been named associate commissioner of the Kentucky Department of Education’s Office of Legal, Legislative and Communications Services.

“Ray’s legal knowledge, combined with his experience in state and local government, will strengthen the agency’s ability to provide services to our constituents,” said Education Commissioner Jon E. Draud. “I’m very pleased that he agreed to join our team.”

“I look forward to working with Commissioner Draud and the Department of Education’s staff,” said Corns. “This is a wonderful opportunity to be directly involved in an area of great interest to me – public education.”

Corns most recently served with the Retired Judges Mediation and Arbitration Services. He also has served as Franklin County District Court judge, special circuit judge; assistant state treasurer, Kentucky public advocate, secretary of the Kentucky Justice Cabinet, commissioner of the Kentucky State Police, commonwealth attorney and assistant state attorney general.

Corns was Franklin County Circuit Court Judge in 1985, when the
Council for Better Education filed suit challenging the equity and adequacy of
funds provided for public P-12 education in Kentucky. His 1988 judgment in the
case held that the General Assembly had failed to provide an efficient system of
common schools as mandated by the state Constitution and that the system of
school financing was inefficient and discriminatory. On appeal, the Kentucky
Supreme Court upheld the judgment, and the General Assembly began the work that led to KERA.

Corns earned a bachelor’s degree from Berea College and a juris doctorate from the Cumberland School of Law at Samford University in Birmingham, Alabama.

Corns began his duties on October 1. His salary has been set at $109,000.

SOURCE: KDE press release

Council for Better Education Launches Website

Roger L. Marcum, Superintendent of the Marion County Schools and President of the Council for Better Education announced CBE's new website today.

The website will allow CBE to share its analyses of Kentucky student achievement, school funding, and litigation issues, and will also link to valuable work by others on these topics.

Speaking of which...I'm pleased that CBE saw fit to include my study to their site:

Each Child, Every Child: The story of the Council for Better Education, Equity and Adequacy in Kentucky's Schools, by Richard Day

In announcing the site Marcum said, "We hope you find it helpful, and we invite your feedback on this new project."

In Senate Bill 1 Williams seeks to ignore the constitution and throw the baby out with the bath water

According to the Kentucky Supreme Court opinion in Rose v Council for Better Education, the state Constitution requires the legislature to maintain an efficient system of schools. To do so, the legislature must nurture the system with adequate funding while maintaining certain academic goals.

Instead, largely under the leadership of Senate President David Williams, the legislature has preferred to ignore its obligations, overspend the budget on pork-barrel projects, and use the resulting revenue short-fall as an argument for not fulfilling their duty to the children of Kentucky.

For the "Bully from Burkesville," this is nothing more than business as usual. The Constitution is apparently important to him only when it grants the legislature (him) greater autonomy. At all other times - screw it.

Former KERA supporter Williams, now wants to drive a stake through the heart of the landmark legislation, with Senate Bill 1 by eliminating many of the Constitutionally required elements from the state assessment.

• The Supreme Court says the legislature must have as its goal that each and every Kentucky child will obtain "sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization." But Williams wants to drop the requirement for open-response questions on the CATS assessment. He wants to use multiple-choice items to check for writing mechanics and editing - evaluating the writing of students who have not written.
• The Supreme Court says the legislature must provide students with "sufficient knowledge of economic, social, and political systems to enable the student to make informed choices." But Williams wants to eliminate the practical living and vocational testing from the program.
• The Supreme Court says the legislature must provide students with sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage. But Williams wants to eliminate arts and humanities testing.

Now, one can argue the relative merits and demerits of any part of an assessment system. Different parts have different roles to play. But Williams wants to toss the whole thing out while shifting responsibility to the local school districts and Councils. This, is unconstitutional.

As the Court stated, shifting responsibility "may not be used by the General Assembly as a substitute for providing an adequate, equal and substantially uniform educational system throughout this state." But that's exactly what Williams wants. He wants to pose, while the CATS assessment dies a thousand deaths.

Whatever its detractors may say, CATS - with its ambitious goals and multiple problems over time (recently made even more difficult by NCLB) - it was squarely focused on satisfying the constitutional mandate, even if some legislators are not.

I have criticized CATS myself on numerous occasions. From the early 90s when I complained to the state board that there was no real curriculum underlying the assessment and that annual changes to the test unfairly required schools to hit a moving target; to the dual scoring system of the new CATS; to this week's farce where KDE and Measured Progress are apparently pressuring teachers to admit that they didn't hear from Measured Progress what they surely heard - my goal has been the improvement of the system. Others have criticized CATS in order to gin up antipathy toward the entire effort, preferring normative measures that favor top students while maintaining a class of bottom students for comparison.

I think the right solution for Kentucky is much more complex. We collect a lot of information about our schools. I'd like to see the state use all of it in a stable, value-added system that collects metrics according to a standard set of well-understood definitions, and that doesn't change much - and never without getting better.

Williams just wants to dump it all for an off-the-shelf normative test where the curriculum Kentucky teachers teach is not the same as the curriculum tested.

This is not exactly an unpopular idea.

From the earliest days of KERA, next to the multi-aged Primary Program, the hardest thing for many up-scale parents to accept was the new assessment which focused on how well the school performed. That's not what most folks wanted. Parents generally want to know, "How's my kid doing compared to others?" Normative tests provide that kind of data.

But in the brokering that led to KERA's passage the business community, appropriately, insisted on accountability in order to support the new law. The larger community, beyond parents, wanted to know how the schools were performing, so that became the focus of the new assessment system.

In a perfect world, one would begin with the curriculum, write assessments according to what students were expected to learn, and the accountability metrics would be layered on last. In Kentucky's case, it came first; exactly backwards and the implementation was long and ugly.

The "performance-based" test was continually and frustratingly reinvented. Performance events came and went. Portfolios came and went. The number of Open Response items was decreased. Multiple choice items increased. Teachers have had to work extra hard. If one ignores the Constitution, William's SB 1 can be seen as just the next step in a long progression. It sure is easier.

I always thought the test should have a normative component, but that that would be the minor player in the overall accountability scheme. Normative tests are not very diagnostic, and their usefulness for improving instruction is very limited - even if results were returned to teachers the next day. But it is good to have an annual snapshot to let parents know where their children stand. The best part of SB 1 is its call for "individual reports to parents on the achievement of their children compared to school, state, and national results."

But throwing the whole thing out in favor of a CTBS-like test surrenders the curriculum to someone else - this, after years of Kentucky teachers helping build a core content based on what is actually being taught in Kentucky schools; as it should be.

But as Kentucky drifts further away from a performance-based assessment, and closer to some national curriculum that Kentucky teachers didn't write and don't understand - we do a disservice to our students. Teaching to the test becomes a real problem. Further restricting Kentucky's assessment to a narrow set of subjects is a problem. And we shouldn't do that just to make some adults feel better about their kid beating some other kid. Winning teams love scorekeepers. Everybody else understands our history, and how important it is to reward growth.

A normative test will apply the old bell curve and only serve to reinforce preexisting stereotypes about who is worth teaching.

At a time when the bachelor's degree needs to become the new baseline requirement for entry into productive work, the exclusive use of the ACT and other normative tests will discourage far too many Kentuckians from seeking higher education. And we will all pay the costs.

Senate Bill 1 should die. If not in the Senate - then, in the House. If not in the House - then on the governor's desk.

Photo from C-J's Politics in Kentucky blog, and a tip of the hat to KyVotes.org.

A half adequate education in Kentucky?

The Prichard Committee recently released a report that looked at funding for education in Kentucky since 1990 and the impact of benefit expenses on the delivery of educational services to students. The study suggests that the rising insurance and benefit costs for school employees have eaten into that funding that might have otherwise gone for programs that directly impact children.

The report authored by Susan Weston and Steve Clements offers a review of major trends in state funding from the earliest implementation of the Kentucky Education Reform Act in fiscal year 1991 through the budget recently enacted for fiscal year 2008.

Susan Perkins Weston, an attorney, is the former executive director of the Kentucky Association of School Councils, now doing some consulting. Stephen Clements is the director of the University of Kentucky's Institute for Educational Research and a faculty member of the Department of Educational Policy Studies and Evaluation.

Weston and Clements note the resurgence of public conversation surrounding the funding of Kentucky’s public schools in recent years; a conversation that had languished for the previous decade and a half.

They also point to the state’s fiscal and budget crises from 2002 to 2005 and its impact on school funding: Cuts to extended school services and textbooks while regional service centers and school rewards were axed.

In 2004, teacher protests forced a special legislative session to commit extra funding to health insurance for state and school district employees.

In 2006, after state revenues had recovered, the General Assembly increased school funding substantially, targeting teacher salaries and adding two days to the calendar.

Their analysis revealed:

• Kentucky took a major step in state support for education efforts from 1990 to 1992.


• Those efforts continued from 1992 to 1996, completing start-up investments and adding funds to ongoing initiatives with limited additional dollars.


• New initiatives and an extra investment in technology were added from 1996 to 2000.


• Funding took a step backward from 2000 to 2004, reflecting overall state fiscal difficulties.


• An important recovery from 2004 to 2008 served mainly to keep up and catch up with growing costs for existing efforts.


• In every period since 1992, inflation and faster-than-inflation growth in benefit costs consumed a major portion of the total increases.

The study focused mainly on state funding since state dollars cover the bulk of P-12 schooling costs and are directly controllable by Kentucky’s lawmakers.

Funding is not the only element needed to provide academic excellence for Kentucky’s children, but it is one essential component deserving of steady attention and wide participation. And it is especially important to know how much of Kentucky’s education-directed resources are being spent on programs to improve student achievement and how much are being consumed by such areas as rising health insurance and benefit costs.

In the end, expanded services need to reach the children who need them, if all are, indeed, going to achieve proficiency.

Weston and Clements chose the metaphor of a half-full glass (or was it half-empty?) to illustrate their view of Kentucky's school funding circumstance. I have tended to think of it as how much gas you have in the tank, because reaching any goal always depends on how far you want to go.

So what is an "adequate" education? Well...that depends, because it changes.

When Kentucky began its system of schools in 1837, a Kentuckian could be considered "educated" with a 4th grade skill set. The goal of the common school movement was free public grammar schools.

The industrial revolution needed more skilled workers, and by 1900, it became obvious that the new goal needed to be a high school education for Kentucky citizens. It took more funding to get there but with the new century came high schools in every county and a "nornal school" in every region. Americans were uncommonly proud of their schools; schools upon which a great democratic society was being built.

Kentucky is at a crossroads once again. The level of education among the workforce needs to be advanced if Kentucky is to continue to prosper. The global imperatives of the information age make the new basic level of education a college degree.

Anything less will be inadequate to keep pace with our competition.

Kentucky must travel the road that leads to more college graduates. But do we have the fuel to get us there?

At the p-12 level, we talk about this in terms of each and every child reaching "proficiency;" which opens the door to a college education for all.

Weston and Clements talk about adequacy this way:

Adequacy

Ultimately, the big question is: do Kentucky schools have the financial resources they need to deliver proficiency for all students?

Proficiency is the short definition of what an “efficient system of common schools,” as explicated by Rose v. Council for Better Education (the 1989 state Supreme Court decision that preceded KERA), should deliver.

Naturally, the question could be broken down into several parts: What efforts are needed to deliver proficiency? Are there special efforts needed for students with unusually intense learning challenges, including those with exceptional disabilities, those with grave poverty challenges and those with limited English?

What will it cost, on an ongoing basis, to deliver that mix of services?

What transitional costs are required to get there, such as added professional development, added or reconfigured facilities, and other help to retool in preparation for using use new approaches? Are the most appropriate mechanisms in place for ensuring that schools and districts make decisions that will most effectively lead to proficiency?

Is that revenue, in fact, being provided?

The Rose Opinion reads, "The system of common schools must be adequately funded to achieve its goals. The system of common schools must be substantially uniform throughout the state. Each child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education."

"Proficiency" is indeed a short definition for an efficient system. Among the essential, and minimal, characteristics of an "efficient" system of common schools Chief Justice Robert Stephens included,
1. The establishment, maintenance and funding of common schools in Kentucky is the sole responsibility of the General Assembly.
2. Common schools shall be free to all.
3. Common schools shall be available to all Kentucky children.
4. Common schools shall be substantially uniform throughout the state.
5. Common schools shall provide equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances.
6. Common schools shall be monitored by the General Assembly to assure that they are operated with no waste, no duplication, no mismanagement, and with no political influence.
7. The premise for the existence of common schools is that all children in Kentucky have a constitutional right to an adequate education.
8. The General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education.
9. An adequate education is one which has as its goal the development of the seven [enumerated] capacities...

SOUREC: Rose v. Council for Better Education, 790 S. W. 2d 186.

Several 2003 studies found that Kentucky’s 2002 education funding was falling short of needed levels, and a lawsuit brought by the Council for Better Education used those findings and data on student achievement progress to seek new legislative action. In 2007, the Franklin Circuit Court ruled that student progress was rapid enough to preclude a court ruling for more funding— but added that a suit might be proper if progress slowed down.

I find this analysis somewhat incomplete, particularly as regards the separation of powers argument. Franklin County Circuit Court Judge Thomas Wingate said it was not the court's role to dictate to the legislature a specific method for determining whether the schools are being adequately funded. In the Rose case, lead attorney Bert Combs carefully avoided seeking a specific remedy for fear the whole case might fall - as it did in Wingate's court. Instead, Combs sought only a declaratory judgment that left solutions to the legislature.

The CBE leadership chose not to appeal the decision. Whether in or out of court, the
debate on funding sufficient to support adequate education is sure to continue into the future.

Whatever the next steps in the academic debate, adequacy is also an issue for Kentucky’s citizens. However complex it may be to work out what our children need and however strenuous it may be to fund those needs, it is our shared duty to seek understanding and to work together to provide the learning that is right and good for the next generation.

Officials: School funding suit over

Superintendents won't appeal

As previously reported, the Council for Better Education - a coalition of 164 (of 175) school districts in Kentucky - has decided not to appeal a ruling by Franklin County Circuit Judge Thomas Wingate. This brings to an end the conjoined school funding cases CBE v Williams and Young v Williams.

Council President Roger Marcum said, however, that the group "will continue to lead efforts for adequate resources" for all Kentucky students.

"Our members continue to believe that Kentucky's academic progress is too slow," said Marcum, who added that the lawsuit kept "the issue on the front burner."

...Marcum -- superintendent of the Marion County school system -- left open the possibility of a future lawsuit...

The case was a followup to the Kentucky Supreme Court's landmark decision in Rose v Council for Better Education, in 1989, which has since been used nationally as precedent in more than three hundred cases. In Rose, inequities and inadequacies in the system prompted the court to declare the entire system of schools to be unconstitutional. That resulted in a re-working of Kentucky's school laws under the name, Kentucky Education Reform Act, or HB 940, which was signed by Governor Wilkinson in 1990.

But the Kentucky constitution contains particularly strong separation of powers language and the courts are reticent to direct the legislature to do anything in particular. This seems to be where Young v. Williams ran into trouble. When the Council asked the court to direct the legislature to use a “specific, systematic method to quantify the amount of money necessary to provide an adequate system of common schools,” Judge Wingate said they went over the line and he responded with a summary judgment for the defense.

After Wingate's ruling, the council filed a motion asking him to reconsider. He denied the motion May 30.

...He said it was not the court's role to dictate to the legislature a specific method for determining whether the schools are being adequately funded. And he said the legislature's method of using rising test scores as proof that schools are being adequately funded is constitutional.

As KSBA reported, the Council decided against an appeal since the best result would only continue the lawsuit.

“If we appeal, the result will not be for the Court of Appeals or the Supreme Court to say, ‘You win, you get more money.’ It would only be to rule in whether to have a trial,” attorney Byron Leet of Wyatt, Tarrant & Combs said. “A successful appeal would take at least two years to get back to Franklin Circuit Court through the Court of Appeals and Supreme Court.”

Leet and Marcum pointed to a bright side to Wingate’s ruling. “Judge Wingate said there is a genuine question about whether the legislature is meeting its constitutional obligation, and that’s a decision for a court to make,” Leet said. “He rejected the defendants’ argument that they were immune from being sued and left the door open for the council or someone else to come back to the court in the future.

Indeed, in the Rose case, the court ruled the system unconstitutional, but stopped short of telling the legislature how to fix it.

Wingate’s rejection of the Council’s legal theory in Young was, consistent with Rose, a stark refusal to step “onto the slippery slope by stipulating the manner by which the General Assembly must carry out its responsibilities.”

It now appears the only viable option for the Council for Better Education is to monitor the legislature to see if they will - despite a long history to the contrary - provide a level of support for the schools that will allow Kentuckly students to achieve the state's goals. Failing that, CBE may need to file a new case, with a new legal strategy.

In the meantime - despite widespread acknowledgement that the present system is underfunded by hundreds of million dollars - Wingate’s ruling will only reinforce the legislature’s natural tendency maintain the status quo.

What NOBODY wants to talk about is the legislature's other option. The General Assembly is empowered by the constitution to maintain present funding levels and simply lower the state's goals. If that were to occur, it would produce a crippling workforce circumstance that would harm the state for decades to come.

This from the Courier-Journal.

The Courts' Opinion in Young v. Williams

by Richard Day

On February 13th, Franklin County Circuit Court Judge Thomas Wingate issued an order granting summary judgment to the legislative defendants in the school funding case, Young v. Williams. Summary judgment is the court’s equivalent to a blocked dunk shot; where the case is thrown out of court without a trial because “it appears impossible” for the Council for Better Education “to produce evidence at trial which would effect a favorable judgment.”

Swat; into the cheap seats.

Given the importance of this case to Kentucky’s children and our future economy, I was shocked by the decision. Certain inadequacies are so glaring that I assumed summary judgment wasn’t even a possibility. I spent a couple of weeks brooding before driving to Frankfort over spring break to review the case file; and it’s a big honker. It took the clerk three trips to deliver the arm loads of evidence, depositions and motions – and cost me $60 to photocopy a small fraction of the files. But the biggest shock was yet to come.

Judge Wingate was appointed to the Franklin County circuit bench by Governor Ernie Fletcher last June as former Judge William Graham was retiring. There has been more than a little speculation that certain executives at the state and federal level are making efforts to stack the courts with restrained jurists who may fail to act at times when they should redirect the other branches of government; and I’m just skeptical enough to believe it could be true. So, I was ready for a fight. But as I scoured the case file I came to a surprising conclusion. As much as I hate to say it, I think Wingate’s summary judgment was constitutionally correct. This is a big deal because the action effectively halted the Council for Better Education, a collection of 164 Kentucky school districts, in their effort to challenge the adequacy of the present school system to meet its legislated goals – a cause I fully support.

When former Governor and federal Judge Bert Combs argued Rose v. Council for Better Education before the Kentucky Supreme Court, he was very careful to tip-toe around any suggestion of a legislative remedy. The Council’s legal theory was that no district in the state was over-funded. As Co-counsel Debra Dawahare argued, “Possibly, as compared to Connecticut, we're all a mess.” But they stopped short of suggesting what should be done about it.

Combs wanted the court to direct the legislature to exercise their authority and proceed “as far as they can” to enact an efficient system of public schools. How far is that? Combs told the court, that they could say to the Speaker of the House and the President of the Senate, “You can exercise your authority to propose legislation that is constitutional.” That would leave them knowing what the law is, and the governor would know, and the General Assembly would know. Combs noted that nowhere in the original circuit court ruling did Judge Raymond Corns’ direct the General Assembly to pass any particular laws, or derive school funding from any particular source, or to adopt any particular system. The circuit court went as far as it could go.

Apparently in the Young case, specific remedies were suggested that violated the “Constitutional bar” and would render the court powerless to enforce its own ruling. Expert witnesses and a handful of studies confirmed the present inadequacies. But when the Council asked the court to direct the legislature to use a “specific, systematic method to quantify the amount of money necessary to provide an adequate system of common schools” they went over the line. Judge Wingate responded with a swat; don’t bring that specific remedy into my house.

House Speaker Jody Richards told the Herald-Leader that Wingate’s ruling, “…vindicates our position that we have made an attempt to adequately fund education.” Of course, the ruling does no such thing. The constitution requires more than an attempt from the legislature. Wingate also rejected claims of sovereign immunity advanced by Richards and Senate President David Williams, and their request that the court “dismiss the legislative defendants” was flatly denied. Don’t bring that legislative immunity stuff into my house either.

Wingate’s rejection of the Council’s legal theory in Young was, consistent with Rose, a stark refusal to step “onto the slippery slope by stipulating the manner by which the General Assembly must carry out its responsibilities.” Because of this, it’s hard to see how a motion for reconsideration, or an appeal of the present case, can win. It looks like the only viable option for the Council for Better Education is the initiation of a new action - and I hope they get to work on that right away. Wingate’s ruling will only reinforce the legislature’s natural tendency maintain the status quo.

Big News on the School Funding Front

Did I mention it was bad news?

What follows are two articles on Judge Thomas Wingate's ruling in Franklin County Circuit Court...


KY. SCHOOL LEADERS' SUIT DISMISSED - SUPERINTENDENTS SOUGHT 'ADEQUATE' STATE FUNDING

Lexington Herald-Leader (KY)
February 14, 2007
Author: Raviya H. Ismail and Art JesterHerald-Leader Education Writers

A Franklin Circuit Court judge ruled yesterday that a group of school superintendents had failed to prove that the General Assembly violated the state Constitution by inadequately funding the state's public schools.

In the state's most important school finance case since the reform of Kentucky's public schools in 1990, Judge Thomas D. Wingate issued a summary judgment in favor of the legislature and said the issue of adequate funding should be resolved by lawmakers, not the courts. "Ultimately, increases in education funding must be the product of political will, not judicial decree," Wingate said in a 22-page opinion.Wingate said the plaintiffs, The Council for Better Education, had not provided "objective evidence of shortcomings in Kentucky's education system." Because the plaintiffs had not established that there was a clear constitutional violation, the court should not dictate how the legislature should appropriate money for the public schools, Wingate said."This court will leave the legislating to the legislature and hope that the citizens of Kentucky fortify it with the will to strengthen education for future generations of Kentuckians," he said.

The Council for Better Education had built its case on the historic ruling in the Rose case of 1989, which paved the way for the sweeping Kentucky Education Reform Act of 1990. In the Rose case, Kentucky's Supreme Court, led by then-Chief Justice Robert Stephens, concluded that the legislature's support of the public schools was inadequate and therefore unconstitutional.In the recent lawsuit, the plaintiffs, a group of superintendents, claimed that funding of Kentucky's schools is "inadequate and arbitrarily determined by the legislature." The plaintiffs based their claim on the Rose decision, where the Kentucky Supreme Court eventually ruled that "the General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education."

There are 164 school districts of a total 175 that belong to the Council for Better Education. The suit claimed Kentucky schools were underfunded from between $1.08 billion to $1.2 billion in the 2003-2004 school year, and underfunded in other years.

The legislature's two top leaders -- Senate President David Williams, R-Burkesville, and House Speaker Jody Richards, D-Bowling Green -- were named defendants in the suit."It vindicates our position that we have made an attempt to adequately fund education," said Richards. " Do I think it's funded well enough? No, I do not."

The defendants refuted the allegations and argued that the state's Constitution "prohibits the judiciary from dictating to the legislature what levels of funding are appropriate and what process to use to determine how much funding education requires."In the ruling, Wingate found that the Council for Better Education had no evidence "relating to the actual nature of school system inadequacy or poor student performance."

The ruling concluded that the General Assembly "has created a system of common schools with tremendously enhanced results" and "KERA has produced dramatic progress toward excellence in public education."

"The determination of adequacy must be based on objective outputs, such as the CATS testing scores and our performance relative to neighboring states," the ruling continued.

Marion County Schools Superintendent Roger L. Marcum, president of the Council for Better Education, said the ruling was disappointing and far from the outcome the group expected. The group wouldn't say whether they planned to appeal the decision."Kentucky has made a lot of progress in improving student achievement," he said. "We are ignoring the fact that a lot of that progress has been made from students that are least at risk. You're going to see that there are many subpopulations that we are not reaching and they are not moving forward toward proficiency. You can see that in a number of schools in the state, in a number of districts."

What surprised Bob Sexton most was the language of the ruling."Many of the legislative leaders are regularly claiming that (KERA) is a failure," said Sexton, executive director of the Prichard Committee for Academic Excellence. "I'm surprised by some of the language (in the ruling) that essentially says the schools are doing so well. I just find this whole thing to be inconsistent to what I'm hearing from legislators."


Edition: FinalSection: Main NewsPage: A1
Copyright (c) 2007 Lexington Herald-Leader
Record Number: 0702140002


And this...

Courier-Journal, The (Louisville, KY)
February 14, 2007
Author: Nancy C. Rodriguez

State's neediest students ill-served, coalition says

A coalition of Kentucky school districts lost its legal bid yesterday to force state lawmakers to spend more money on public schools.But educators in the failed lawsuit said that their fight is not over and that without additional funding, they will never be able to serve some of Kentucky's neediest students.

The Council for Better Education filed suit in 2003, accusing the legislature of inadequately funding public schools. It asked the court to order lawmakers to direct hundred of millions more dollars into Kentucky classrooms.The state spends about $4.1 billion a year on education.

Marion County Superintendent Roger Marcum, the council's president, called the ruling "disappointing" and said the council might ask Franklin Circuit Judge Thomas Wingate to reconsider his opinion or appeal to a higher court."I can assure you this is not the end of the line for us," Marcum said.

In 1985, the council filed a similar lawsuit that resulted in the state's school-funding system being declared unconstitutional and paved the way for sweeping education reform in 1990.But unlike that case, which focused on funding inequities, the latest lawsuit focused on whether districts were receiving adequate funding to teach every student the skills and knowledge necessary to meet Kentucky's education standards.

Wingate ruled that funding for Kentucky's schools wasn't "so inadequate that it amounts to a violation ... of the constitution."He said it's not the court's role to tell the legislature the specific method to use to determine if schools are being adequately funded.And he said the legislature's method of using rising test scores as proof that schools are being adequately funded is constitutional.

Method questioned

Wingate said, however, that it was "puzzling" why the legislature has not developed a different method of determining whether eSchools Lose Suit to Boost Funding

ducation is adequately funded."We do not know why, despite over a decade of requests from interested citizen groups and the Office of Educational Accountability, the General Assembly has yet to commission a study of its own to determine whether its funding levels for education are adequate," Wingate wrote. "... Perhaps it is afraid of the results that study will produce."

Marcum said, "We feel the issue about adequate funding is still something that needs to be addressed. " He added that without additional funding it will be "difficult, if not impossible" for schools to meet ambitious student achievement goals by the state's 2014 deadline.

Marcum said it is unfortunate that schools are being "penalized" for making gains and argued that while progress has been made, the state's neediest students are still in dire need of additional services."The students that are most at risk are the ones we still have not reached," he said, noting test scores that show low performance among low-income, minority and special-education students. "The reform was about proficiency for all."

Legislative reaction

But Mark Overstreet, the attorney representing Senate President David Williams and House Speaker Jody Richards, said the ruling was "a well-reasoned decision.""And it recognizes the hard work that the General Assembly has done over the 16 years since" the state passed education reform.

Richards, who recently announced he is seeking the Democratic nomination for governor, said last night that he agreed with the ruling."We have made some great progress since the reform act was enacted," Richards said. "I don't think we've done well enough. It certainly is my goal and my intent to fund education better in the future. "

Richards said that cost increases for the Medicaid program and state prison system hampered the legislature's ability to fund public schools since the education reform act was passed.Asked why the legislature did not raise taxes to raise money for schools in that period, Richards said: "The citizens generally don't want taxes raised."

Marcum acknowledged the legislature's efforts last year to increase school funding, saying it was "better than it has been in some time ." But most of those increases went toward salaries, health insurance and retirements costs, he said."It does not provide additional resources for kids," he said.


Edition: KYSection: NewsPage: 1A
Dateline: Kentucky
Copyright (c) The Courier-Journal. All rights reserved. Reproduced with the permission of Gannett Co., Inc. by NewsBank, inc.
Record Number: lou39775540

LEGISLATORS IMAGINING PRIVILEGES

Lexington Herald-Leader (KY)
August 7, 2006
Author: Richard Day

I've been racking my brain, but I can't remember the last time I hid money in the freezer.

That's what U.S. Rep. William Jefferson, D-La., did.Court documents say Jefferson accepted bribes to help a Kentucky-based company obtain government contracts -- economic development's ugly side, I guess. The FBI followed the money to the congressman's freezer, and Jefferson cried "legislative immunity." Did the FBI have a right to conduct a warranted search of the congressman's office?

In a rare, yet unfortunate, act of bipartisan unity, Democratic and Republican lawmakers went berserk, complaining that they should be immune from searches by the executive branch.Jefferson called it "an outrageous intrusion in the separation of powers between the executive and legislative branches of government."

In a recent ABC News poll, 86 percent of Americans disagreed.

Privileges granted to Kentucky legislators -- such as Republican Senate President David Williams and Democratic Speaker of the House Jody Richards -- under Kentucky's Constitution are identical to those for members of the Congress.And like Jefferson, Williams and Richards want to reinvent the definition of legislative immunity.

Fortunately for us, the Kentucky Supreme Court recently ruled on the issue in Baker vs. Fletcher.The court illustrated the intent of the law, citing the English Bill of Rights and James Wilson, a Pennsylvania delegate to the Constitutional Convention who said, "In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense."

Virginia's experience with legislative immunity is instructive.

In 1660, Virginia Delegate Nathaniel Bacon was arrested by the royal governor as he traveled to the House of Burgesses to vote in opposition to the governor's wishes. Clearly, in such instances, legislative immunity is vital.

Unfortunately, in recent years Virginia lawmakers have used legislative immunity as a dodge. The Virginian-Pilot reported that state troopers were powerless to stop legislators from "driving as fast as they pleased on county roads outside Richmond."One delegate claimed immunity while he continued to use his radar detector, which is illegal in Virginia. Still another delegate claimed immunity as a defense against an indecent-exposure charge. Clearly, in such cases, legislative immunity is a coverup.

In a Kentucky case, Council for Better Education vs. Williams, Williams and Richards have not been deposed for almost a year now. They are claiming legislative immunity.

CBE vs. Williams questions whether the General Assembly has met its constitutional obligation to public education. The Supreme Court has already made clear in Rose vs. Council for Better Education that the General Assembly is solely responsible for maintaining an efficient system of schools and providing adequate resources to reach its rather ambitious goals.But the Council for Better Education, a collection of nearly all of the state's school districts, has filed suit asserting that the legislature has not met its constitutional mandate.

I understand that legislators should be protected from the resentment of the powerful, but I'm pretty sure that does not include Kentucky's children. There's a legitimate legal question; we need a ruling.

Rather than claiming immunity to protect legislative free-speech rights, Williams and Richards want to clam up. They want to misuse one section of the constitution to keep from having to do what another section requires of them.

We've come to expect this kind of legislative over-reaching from Williams. He's the legislative top dog in a state with a weak Republican governor, a confused opposition and a growing number of "right thinking" judges.Who can forget Williams' infamous assertion that "if 20 people in (the Senate) voted that someone was 30 years old (even though they aren't), no court in the land could overturn that."I can guess where his head is. "King David" has a nice ring to it.

But what is the explanation for Richards? Good stewardship of the public schools ought to be a bedrock principle of the Democratic Party, but I guess not.

The praise Republicans deserve for a 2006 regular session that improved the schools pales when one recalls the previous decade of neglect. And Democrats were largely responsible during most of Kentucky's history; that's a story with more lows than highs.

Clearly, Williams and Richards should not be deposed when the legislature is in session. But they have refused for a long time now, whether the General Assembly was in session or not. Shame on them. It's time to drop the pretense, take the immunity defense out of the freezer and do the people's business.

Caption:- Richard Day of Lexington is a former elementary school principal.
Edition: FinalSection: CommentaryPage: A9
Copyright (c) 2006 Lexington Herald-Leader
Record Number: 0608080135