legal mobilization and the politics of reform: lessons from school finance litigation in kentucky,...

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Legal Mobilization and the Politics of Reform: Lessons from School Finance Litigation inKentucky, 1984-1995Author(s): Michael ParisSource: Law & Social Inquiry, Vol. 26, No. 3 (Summer, 2001), pp. 631-684Published by: Wiley on behalf of the American Bar FoundationStable URL: http://www.jstor.org/stable/829113 .

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Legal Mobilization and the Politics of Reform: Lessons From School Finance Litigation in Kentucky, 1984-1995

Michael Paris

This article is about legal mobilization by claimant groups seeking left- liberal reform in the United States. Drawing on a growing body of work in political science and legal studies, it takes an interpretive, legal-mobilization approach to one litigation-based reform effort: school finance litigation and education reform in Kentucky. In turn, this case study provides leverage for theorizing about legal mobilization and the role of law and courts in social reform. The article argues that current theoretical approaches either overlook or neglect the implications of important dimensions of legal mobilization by would-be reformers. Specifically, it highlights and explicates the meaning of two related themes: (1) legal translation, taken up here as legal framing and legal construction, and (2) the degree of coherence or fit between the legal and political components of reform projects that include both legal mobilization and extrajudicial strategies and tactics. This article suggests that the "degree of coherence" may have an important but underappreciated relationship to the overall success or failure of such reform projects.

Michael Paris is assistant professor, Department of Political Science, City College, The City University of New York. The author thanks the Spencer Foundation for a 1994-95 Dissertation Year Fellowship in support of this research. Many reformers studied in this article were generous with their time, resources, and insights. Among those who helped, the author would like particularly to thank Kern Alexander, Debra Dawahare, Cindy Heine, Ted Lavit, Robert Sexton, and Tom Willis. The law firm of Wyatt, Tarrant, and Combs, and the Prichard Committee for Academic Excellence generously provided access to files and documents. The author also thanks Elizabeth Bussiere, Amy Higer, Marc Landy, Susan Lawrence, Kevin McMahon, R. Shep Melnick, David A. Miller, Daniel Morris, David Paris, and Karen Zivi for comments, criticisms, and editorial suggestions. Finally, the author thanks the anonymous reviewers for Law and Social Inquiry for their criticisms and suggestions.

© 2001 American Bar Foundation. 0897-6546/01/2603-631$01.00 631



632 LAW AND SOCIAL INQUIRY

I. INTRODUCTION

This article is about legal mobilization by claimant groups seeking left- liberal reform in the United States. Drawing on a growing body of work in

political science and legal studies, it takes an interpretive, legal mobilization

approach to one litigation-based reform effort (see Milner 1986; McCann 1994; Silverstein 1996). This case study involves school finance litigation and education reform in Kentucky. In turn, the case study provides leverage for theorizing about legal mobilization and the role of law and courts in social reform. I shall argue that current theoretical approaches either overlook or neglect the implications of important dimensions of legal mobilization by would-be reformers.

The rest of this introduction (part 1) states the "case study specific" questions to be addressed and then provides an overview of my substantive

argument about the answers to these questions. Part 2 locates my approach and research in the relevant literature and describes what I take to be the broader theoretical significance of this project. Part 3 offers a narrative account of school finance litigation and education reform in Kentucky cover-

ing the period from 1984 through 1995. A conclusion (part 4) revisits the theoretical observations in light of the case study.

A Success Story and Some Puzzles and Questions

In 1985, an organization called the Council for Better Education, Inc., filed suit in Kentucky challenging the state's school finance arrangements. The Council, which consisted of 66 school districts, claimed that the ex-

isting finance system violated the education clause of the Commonwealth's Constitution.1 This clause states that the "General Assembly shall, by ap- propriate legislation, provide for an efficient system of common schools

throughout the state." (Ky. Const. § 183). The case went to trial in 1987. After the trial court rendered a decision in favor of plaintiffs in 1988, state defendants appealed to the Kentucky Supreme Court.

In June 1989, the Kentucky Supreme Court (hereinafter "the Court") used the finance suit to strike down the state's "entire" public school system. After noting that a "child's right to an adequate education is a fundamental one under the [state] constitution," it wrote this: "Lest there be any doubt, ... Kentucky's entire system of common schools is unconstitutional.... This

1. Inequality in access to educational resources stems primarily from states' reliance on local property taxes. Legal challenges to state school finance systems began in the late 1960s. In several states, reformers raised federal equal protection claims to attack state finance systems. However, the United States Supreme Court rejected these claims in San Antonio v.

Rodriguez, 411 U.S. 1 (1973). Since then, challenges have been brought in state courts based on provisions in state constitutions. For overviews, see Verstegen and Whitney 1997 and McUsic 1998.



Kentucky School Finance Reform 633

decision applies to the entire sweep of the system. . . . [It] applies to the statutes creating, implementing and financing the system and to all regula- tions pertaining thereto" (Rose v. Council for Better Education 1989, 212, 215-16).

Within a year after the Court's decision, the legislature passed an am- bitious, multifaceted reform package, the Kentucky Education Reform Act of 1990 (KERA). KERA substantially revamped public education in the state. It included not only a new funding system, but also reforms involving curriculum and testing, school governance structures, and preschool and social service programs. The legislature financed these reforms with a $1.3 billion tax increase over two years. At the time, the state's total general fund budget for 1990-92 was just under $9 billion (Miller 1994, 127). With respect to school finance policy, between 1989/90 and 1994/95, Kentucky's national ranking in per-pupil expenditures went from 41st to 21st. Within the state, the difference in average per-pupil expenditure between the top and bottom quintile of students fell by about half, from $1,199 to $558 (Kentucky Department of Education 1995; Trimble and Forsaith 1995; Reed 1998). For their part, the reformers responsible for the litigation have been entirely satisfied with the results (Alexander Interview; Moreland In- terview; Applebaum 1996).

These events present two puzzles. First, Kentucky has a long history of animosity toward government and taxation. Anti-tax sentiments, in particular, run deep in the state's political culture.2 Against this backdrop, how did elected officials come to endorse such a large tax increase? Second, given the sweeping nature of the Court's decision, why was there no significant resistance to judicially mandated reform? In striking down the "entire system," the Court went way beyond the relief plaintiffs had requested. One would think that if judicial usurpation would ever be at issue, then this would be the case.

These "puzzles" readily dissolve when the case is placed in its immediate political context. Simply put, the Court's ruling entered a climate already quite favorable to reform. By 1989, finance inequities and other educational problems had been on the political agenda for six years. Several opinion polls had marked the public's increasing receptivity to educational reform, and various educational interest groups had mobilized to support the Council's lawsuit and higher educational spending. However, the governor and the legislature were deadlocked over taxes and competing educational reform programs. The Court's decision broke this logjam and provided

2. For example, in 1979 the state adopted House Bill 44, Kentucky's own version of California's Proposition 13. House Bill 44 limited permissible annual increases in property tax revenues to 4% annually (Rose v. Council for Better Education 1989, 196).




"cover" for elected officials to endorse tax increases (Miller 1994, 68; Dove 1991).3

But noticing these sorts of factors (a shift in public opinion; interest group pressure; executive-legislative deadlock as an occasion for judicial cover on the tax issue) only gives rise to more interesting questions: How, exactly, did this favorable political climate emerge? What role did litigation and court victories play in bringing it about? Were legal mobilization and judicial support merely an incidental side show in broader historical and political processes that would have produced the same results in any event, or were they central in bringing about change and shaping outcomes?

Overview of the Substantive Argument

In what follows, I argue that certain reformers were responsible for creating a particular kind of political environment conducive to a particular kind of educational reform, and that they did so over a period of years through political action that went hand in hand with their use of law and courts.

A Particular Kind of Political Environment

In this reform project, various political activities preceded and under- girded legal mobilization. In turn, litigation and judicial support expanded the scope of the conflict, shaped the terms of public debate, and framed subsequent policy processes and outcomes. Prior to the Kentucky Supreme Court's 1989 decision, reformers' efforts had produced a politics of school reform with the characteristics of what legal scholar Bruce Ackerman has called "constitutional politics" (1991).4 Ackerman's notion captures something important about the relationship between law and politics in the Ken- tucky reform project. Constitutional politics is marked by "mobilized

3. Were we to take Gerald Rosenberg's approach (1991) to understanding these events, our discussion could end right here. All that one needs to know is that the "constraints" of his constrained court view have (somehow) been overcome. The case study presented below supports Rosenberg's claim that litigation and court victories are generally not sufficient conditions for significant liberal reform. It also supports his claim that courts can play some role in

advancing reform when certain conditions are met. However, contrary to Rosenberg's view, I shall argue that litigation and court victories were in fact necessary conditions for success of this reform effort. Litigation and court victories played a crucial role in shaping the terms of debate and creating a favorable political environment in the first place. Rosenberg's perspective would not allow us to understand the dynamic interaction between legal and political mobilization. Nor would it uncover the dynamic interplay of legal and political mobilization, on one hand, and judicial decisions and rhetoric, on the other.

4. Ackerman distinguishes "constitutional politics" from "normal politics" in order to characterize periods of profound constitutional crisis and change in American constitutional

development. Here, I am simply applying certain elements of his formulation to one conflict in one state in one important policy area. The reader will have to judge whether the application makes sense, in light of the case study (Ackerman 1991).




deliberation" and interbranch conflict. Actors engaged in constitutional politics conduct themselves in ways that demonstrate an awareness that something very important is at stake-that they are "making history" and that the situation calls for efforts to rise above narrow self-interests and "politics as usual."

The Kentucky reform conflict had something of this quality, and both the political and legal components of reformers' project were vital to the creation of this sort of politics and the success of reform. Without the political groundwork, the lawsuit and the constitutional claim could not have resulted in the constitutionalization of the politics of school reform. With- out the lawsuit and the constitutional claim, the political efforts may well have come to very little, or nothing.

A Particular Kind of Educational Reform

Through what they said and did in both law and politics, the Kentucky reformers projected a broad vision of educational reform onto the political agenda. Both their rhetoric and practices of reform were firmly grounded in the common school tradition and its aspirations for public education in a democratic polity. In other words, this vision and its associated modem policy frame structured reformers' political and legal rhetoric and action, and thus provided a high degree of coherence between the legal and political components of their effort. Below, I try to develop this notion of "coherence" and argue that it may have an underappreciated but important relationship to success in litigation-involved reform efforts.

The common school frame may be compared to other broad outlooks on public education in the United States, such as "meritocratic views" that focus on rewarding individual achievement, "human capital" theories that emphasize economic benefits to "society," or "compensatory views" that seek to use schooling to make up for disadvantages (Jencks 1988; D. Paris 1995). The common school tradition emphasizes education for common citizenship and social integration and downplays the economic purposes and functions of schooling. "The idea of schooling for all," as Katznelson and Weir put it, "originally meant more than equal access. It signified a school experience common to all children" (1985, 208). David C. Paris has described the core premises of the common school tradition as follows:

the founding ideal of American public education was to provide a common, equal education to all. That education would, first, ensure the basic literacy essential for the political, economic and social life of all citizens. But it would do more than simply develop basic skills. It would help forge a social bond by providing common moral and political understandings to otherwise different individuals and groups. What Hor- ace Mann called "the great balance wheel of the social machinery"




would make differences in status and background secondary to the fundamental equality of citizens. (1995, 62)

The modem common school policy frame typically focuses on pedagogical style, the content of the curriculum, and the culture (or "sense of mission") in and around schools. It places a rhetorical emphasis on "commonality," on what is shared by all students (e.g., "what all children should know and be able to do"; "all children can learn and nearly all at high levels"), whatever their differences (D. Paris 1995, 77; Sizer 1984; Goodlad 1984; see also Toch 1991).

Reformers in Kentucky embraced this vision and acted in ways consistent with it in both law and politics. Eventually, their common school vision was reflected, reinforced, and legitimized by the courts and embodied in a multitude of policy reforms enacted as the Kentucky Education Reform Act. Before turning to the details of this case of legal mobilization and reform politics, I first locate my approach in literature and highlight my claims about the broader theoretical significance of this research.

II. THEORETICAL DISCUSSION

Twenty-five years ago, Stuart Scheingold set out to assess "the part that lawyers and litigation could play in altering the course of public policy" in favor of redistributive goals. Getting the answer right, he argued, depended on "abandon[ing] the conventional legal perspective and replac[ing] it with a political approach to law and change." The conventional legal perspective ("the myth of rights") saw law, litigation, and courts as things apart from and above society and politics. Here, the assumption was "that litigation can evoke a declaration of rights; that it can, further, be used to assure realization of these rights; and, finally, that realization is tantamount to meaningful change." This myth of rights, then, was "premised on a direct linking of litigation, rights, and remedies with social change" (1974, 4-5). The political approach ("the politics of rights"), by contrast, saw "judicially asserted rights" not as "accomplished social facts or moral imperatives," but merely as "authoritatively articulated goals of public policy" and "political resources of unknown value." Given the cultural resonance of rights claims in U.S. politics, litigation and court decisions might play a role in fostering broader political mobilization and legitimating claimants' grievances. For Scheingold, this analysis "underscore[d] the crucial importance of thinking about legal tactics in combination with other modes of political action" (1974, 131-47, 211).

Scheingold's conceptual outline nicely defined a web of problems that have continued to command the attention of many scholars (e.g., Handler 1978; Olson 1981, 1984; Milner 1986; Tushnet 1987; Bumiller 1988;




Rosenberg 1991; McCann 1986, 1994; Silverstein 1996; McCann and Sil- verstein 1998; Harris 1998). Observers who disagree about many things have tended to agree with Scheingold's central claim: In the absence of some form of broader political mobilization and/or support from other actors in addition to courts, litigation and judicial interventions alone are unlikely to produce the particular changes left-liberal reformers want.5 From this

point of agreement about the primacy of politics, the important substantive debates have typically been joined over whether (and if so precisely how and under what conditions) rights claims, litigation, and court decisions can aid and abet reformers' "extrajudicial strategies and tactics" or produce other

helpful "indirect effects."

For many reasons, reform litigation might be ineffective or counter-

productive. The ideational constraints of liberal legal doctrine limit what can be claimed or, perhaps, even imagined, in the first place (Scheingold 1974; McCann 1994). Legal doctrine and institutional processes often "re- frame" disputes in narrow and confining ways and may sometime force particular understandings of problems or problematic identities on claimants (Mather and Yngvesson 1980-81; Bumiller 1988). Given their training, lawyers may believe in the myth of rights and its misconception of the rela-

tionship between law and politics. Given their social power, such lawyers may come to dominate reform efforts and divert them away from effective

political strategies (Scheingold 1974; Handler 1978; Rosenberg 1991). Even when this is not the case, in some contexts it may be difficult to integrate litigation with other forms of political mobilization (Milner 1986).

Finally, of course, courts often lack the democratic legitimacy, the raw

power, or the technical capacity to bring about desired changes (Scheingold 1974; Handler 1978; Rosenberg 1991). Rosenberg, in particular, has been rather adamant in denying the plausibility of the sorts of claims usually made for linking court decisions to a "politics of rights." Moreover, a good deal of research concerned not so much with left-liberal reform as with courts and public policy has documented what can go awry when courts take the lead in backing institutional and policy reform (e.g., Horowitz 1977; Melnick 1983, 1994; Rabkin 1989). Aside from detailed treatments of the role of courts in policy processes, these other studies also show that the courts' legitimacy problem is not unrelated to perceptions about the reformers who appeal to them. In other words, other public officials and broader

5. This is not to say, as it is sometimes wrongly said of Rosenberg's argument, that "courts don't matter." Even in the absence of political mobilization by reformers or support from other actors, or even in the absence of any conscious intent to produce policy change, litigation and court decisions have important consequences for politics and policy (Horowitz 1977; Zemans 1983; Lawrence 1990; Melnick 1994; Epp 1998). The point here is a narrower (and obviously oversimplified) one about whether litigation-involved reform efforts succeed in bringing about the particular changes desired by left-liberal reformers.




publics often view reform litigation as a purely instrumental, if not cynical, end run around (more) legitimate democratic processes.

We have, then, a host of theoretical propositions backed by empirical research on the problems and dilemmas that can arise when reformers turn to law and courts. How, when, and why can these potential difficulties be overcome? How can reform projects involving litigation "counter" the

"counterproductivity" lurking at every turn in such efforts? In this article, my aim is to contribute to an emerging literature that, while it remains cautious and skeptical about the prospects for change through litigation, nevertheless addresses these questions in new ways (Olson 1984; Milner

1986; McCann 1994; Silverstein 1996). My approach both draws on this recent interpretive work on legal mobilization and argues for the amplifica- tion and modification of some of its concepts and claims.6

My approach draws on this recent work in several ways. First, as a research strategy, it adopts the standpoint of would-be reformers and examines the interplay of law and politics from their perspective. This standpoint shift also puts a spotlight on the attorney-client (or constituent) relation-

ship and its central questions of "representation" and "participation" within reform efforts.7 Second, like much recent work, my approach endorses the value of distinguishing between two types of interpretive statements-the researcher's statements about the actual role of law and courts in reform conflicts, on one hand, and the researcher's statements about reformers' consciousness and strategic thinking about the role of law and courts, on the other. Finally, my approach treats law as both a strategic resource and a force potentially constitutive of meaning (whether for good or ill), both within reform groups and in broader political contexts. In other words, this

approach recognizes that meaning and use are inevitably intertwined in

6. Michael McCann's recent work in particular provides a rich source of insights about the complex and subtle ways law and courts can matter in reform conflicts. McCann's interpretive alternative to Rosenberg's positivist, court-centered approach involves two central moves. First, it advocates "decentering" the analysis by shifting the focus away from courts and other official institutions to nonstate sites and to the consciousness, motivations, and inten- tions of citizens who mobilize the law. Second, it conceptualizes law in "constitutive" as well as "instrumental" terms (McCann 1992, 1994). McCann relies on Frances Zemans's definition of legal mobilization as "the translation of a desire or want into a demand framed as an assertion of rights." I have borrowed the phrase "countering counterproductivity" from Helena Silverstein's book (1996, 106), although I develop a somewhat different notion than she does about how this can take place.

7. Although often treated as a problem of legal ethics in "public interest litigation," recent legal mobilization views take up the lawyer-client relationship as a problem of practical politics. In his work on the NAACP's pre-Brown strategy, Mark Tushnet made this point about the lawyer-client relationship. Tushnet argued that the NAACP's pre-Brown success had much to do with reform-oriented lawyers participation in dense networks of community support and the existence of "flesh-and-blood clients." Both community involvement and flesh-and-blood clients at least to some extent "disciplined" the power that lawyers inevitably had and gave life and shape to their advocacy (Tushnet 1987, 148-152, 199-200 n.35; see also Olson 1984; McCann 1994, 60-61, 90-91; McCann and Silverstein 1998).




practice, and it tries to understand how meaning emerges in and through strategic action (see, especially, Silverstein 1996, 9-14).8

The application of this theoretical orientation to the case study below gives rise to two general propositions about the role of legal mobilization and courts in reform politics and about how we study this topic. I discuss these two points here and then return to them in the conclusion.

Legal and Political Mobilization

The first point is about how we understand "legal mobilization" itself as well as its relationship to political mobilization. I suggest that existing approaches tend to neglect the specific content and character of legal translation, defined here as including both legal framing and legal construction. There- fore, these approaches can neither fully comprehend nor grasp the potential significance of the degree of coherence (or "fit") between the legal and political dimensions of reform projects. I do not claim that either of these notions are "new" in any sense. Discussions of legal translation and related treatments of legal narrative are legion (e.g., Mather and Yngvesson 1980-81; White 1990; Minow 1990; Ewick and Silbey 1995; Brooks 1996; Mather 1997), and considerable work has focused on the articulation between legal mobilization and rights discourse, on one hand, and broader political mobilization and conflict, on the other (Milner 1986, 1989; McCann 1994; see also Hunt 1993, 239). However, I do claim that generally we can be more precise about both legal translation and the degree of coherence between the

legal and political dimensions of a reform project, and that there may be good reasons for doing so. I claim that, properly understood, this "degree of coherence" may have an underappreciated but important bearing on the overall success or failure of litigation-involved reform projects.

By definition, legal mobilization involves "the translation of a desire or want into a demand framed as an assertion of rights" (McCann 1994). We can define legal translation as including both "legal framing" and "legal

8. Generally, strategic or "instrumental" views of law treat law as a resource that can be used like a tool or weapon, whereas "constitutive" views see law as "an important part of our culturally-conditioned ways of making sense of the world" (McCann 1995). Scholars endorsing the constitutive position on law take a variety of stances on what, exactly, "constitutive" means. For some it seems to mean that law can be a powerful ideological force operating behind people's backs, as it were, while for others there is more room for human agency and inherently meaningful (as opposed to instrumental) choice and action. This tension between "opportunity and constraint" in legal discourse and institutional settings is a central feature of McCann's framework (1994, 7-9). My approach puts even more emphasis on agency, choice, and "opportunity" than does McCann's view. For general discussions of the distinction between instrumental and constitutive views of law, see Gordon 1984, Brigham 1987, and Sarat and Keams 1993. The basic distinction is useful in that it tracks real differences in the way law and its relationship to politics and culture have been understood. However, there is no logical incompatibility between the two basic views and no reason a researcher cannot try to uncover both aspects of law in practice at once (see also Mather 1997; McCann 1998).




construction." Legal framing focuses on how reformers translate their moral values and political goals into more or less plausible legal claims and arguments. Legal construction focuses on the representation of "facts" reformers offer to support legal claims.9 This definition recognizes that the "materials" for legal translation can include reformers' responses to the stuff of contem-

porary cultural and policy debates, as well as their use of authoritative legal sources. If law is potentially constitutive-if it has the capacity, say, to

shape identities, understandings of problems, or the organization of politics-then it makes sense to render accounts of legal translation attentive to the specific content and rhetorical character of legal claims and arguments.

More specificity and detail about legal translation are needed, I suggest, in order to correct a tendency in "decentered" approaches to legal mobilization to engage in rather loose talk about "rights discourse" in general or "official legal norms and conventions," at least when it comes to litigation and judicial forums. This move to decentered analysis has usefully called our attention to "the ways that law shapes and is reshaped by relationships of citizens apart from direct involvement by courts or other state institutions"

(McCann 1998, 326). As noted above (see note 8), law is seen as "constitutive" here, and as such, it is a source of both "opportunity and constraint" for actors in political struggles. However, the tendency has been to assume that "opportunity" is associated with "reconceptualization" and "meaning- making activity" in nonstate sites among citizens, and that "constraint" is associated with official legal forums and official legal actors (McCann 1994; Silverstein 1996). Thus, there is little attention to legal translation options and the choices reformers make about translation within litigation. Ulti-

mately, our concern is not merely with legal translation or even legal change, but with the political significance of these things, both within reform groups and in broader political contexts.

The idea of the degree of coherence (or "fit") between legal and political dimensions of a reform effort comes into play when reformers who turn to law and courts also engage in some form of broader, "extrajudicial" political activity, as is now often the case.10 It assumes that researchers can offer

plausible ways to mark the difference between the "legal" and "political"

9. This distinction between legal framing and legal construction does not really hold up in practice. One cannot make a legal claim without referencing law and facts simultaneously, and many "facts" are already imbued with meaning traceable to legal categories. Still, separat- ing them for analytical purposes directs attention to options and choices for both legal framing and factual presentations, and to the "mutual construction" involved as both proceed together (Levi 1948; Scheppele 1988, chap. 5).

10. Indeed, at least some evidence indicates that the past generation's academic critique of "the myth of rights" is becoming the current common wisdom among reform-oriented lawyers and activists. Lawyers and activists now tend to be quite "realistic" about their practices and about law and courts as institutions. Of course, their projects may fail, for a variety of reasons. But research shows that such failures may have less and less to do with the fact that lawyers or other reformers are captivated by the set of propositions Scheingold called "the myth of rights" (Olson 1984; McCann and Silverstein 1998; Southworth 1998).




components of an effort, however controversial such distinctions might be, and it further assumes that it makes sense to say that these legal and political prongs might or might not "fit" or "work" well together. Not surpris- ingly, students of legal mobilization have conceptualized the relationship between litigation activity and extrajudicial strategies in either descriptive terms, denoting what else is done (e.g., lobbying, protesting), or in strategic or functional terms, signaling what litigation can accomplish for reformers

(e.g., agenda setting, fostering political mobilization, gaining bargaining lev-

erage). The suggestion here-one that follows readily from a constitutive view of law-is that we should also pay more attention to the question of ideational content and ideological coherence across the legal and political components of reform projects. Further, in reform politics, practices and actions also "speak" and "create." Thus, a focus on "coherence" should also include an effort to uncover "doing" as well as "saying," action as well as rhetoric, along both the legal and political dimensions of a reform project.

The case study presented below offers one illustration of what it means for the legal and political components of a reform project to fit well to-

gether, although this coherence was only partially a matter of conscious

design. Again, this case study suggests that "coherence" might be better understood and that it may have an important but underappreciated relation-

ship to overall success or failure in litigation-involved efforts.

Courts as Institutions in a Legal Mobilization Framework

The second broad point I explore in this article concerns the nature and status of courts as institutions in an interpretive legal mobilization framework. As McCann has noted, interpretive work on legal mobilization is closely related to "historical-institutionalism" in the subfield of public law within political science (McCann 1995; see Smith 1988; Gillman 1993, 1996-97; Clayton and Gillman, eds., 1999).1 I will suggest that studies of legal mobilization might better incorporate insights from historical-institutionalist work on judicial decision making, including careful attention to the historical, political-institutional settings in which courts do their work and to the content of judicial opinions.

Again, my sense is that the salutary move to "decentered" analysis might divert attention from actual processes of institutional change, and that these processes can sometimes include the helpful, independent role

11. Both strands of research are sympathetic toward interpretivism, whatever peace they make with traditional social science. Both strands are concerned with meaning and action "in context(s)," and thus with patterns of institutional development, embedded rationalities of action, and "path dependencies" (see also Pierson 1993; Ethington and McDonagh 1995; Orren and Skowronek 1996). Both strands also treat law as potentially constitutive and courts as particular kinds of institutions with their own histories and relationships to other institutions.




that courts as institutions can play in reform projects. This is not to endorse

anything like what Rosenberg called "the dynamic court view" (1991). Rather, it is simply to acknowledge, as many scholars have shown, that courts can sometimes act as a crucial "forum for political argument" and the creative transformation of disputes (Mather 1995), and to claim, further, that whether courts do so or not depends on the "opportunities for decision"

(broadly understood) presented to them by reformers and on their own perspectives and interests in a given historical and institutional setting. While

keeping the primary focus on would-be reformers, this approach seeks a more detailed account linking legal mobilization to political-institutional settings and responses.12

In the case study that follows, we shall see that both the state trial court and the state's highest court did act as important forums for political and moral argument and did indeed place an independent, positive stamp upon reformers' project. I now turn to this case study.

III. CASE STUDY: SCHOOL FINANCE LITIGATION AND EDUCATION REFORM IN KENTUCKY, 1984-95

Methods and Organization

The methods used here are narrative and interpretive. In Ewick and

Silbey's terms, I am interested in narrative as an "object of inquiry"-that is, in examining "how stories are produced through social action" and the "processes by which people conduct and communicate understandings of the world"-and the role of legal and political mobilization in these

processes. But a narrative, with its "selective appropriation" and "temporal ordering" of past events and its dramatic structure, is also offered "as product"-that is, as the researcher's constructed story about one case of legal mobilization and the politics of reform (Ewick and Silbey 1995, 200-204).

I conducted 13 open-ended, interactive interviews, both in person and

by telephone. These interviews lasted between one and three hours. I focused primarily but not exclusively on reformers. I consulted primary source materials obtained from reformers, including their private files and the

12. As Gillman and Clayton have recently noted, "there are nearly as many ways to think about institutions as there are practitioners of institutional analysis" (Gillman and Clay- ton 1999, 6). My purpose is not to undertake an analysis of courts or judicial decision making in their own right, but to treat legal doctrine, courts in themselves, and courts in relation to other political institutions as central to the setting or "context" of legal mobilization, and to do so with more care about doctrine and independent action by courts than we often find in "decentered" mobilization approaches. I have borrowed the phrase "opportunities for decision" from Susan Lawrence's The Poor in Court (1990, 3), an exemplary effort to reckon up the relationship between legal mobilization and judicial agendas and decision making. See also Epp (1998).




public documents they produced. I also consulted various secondary sources about Kentucky's history, culture, and politics, and about education reform and education policy in the state. I reviewed the coverage of reformers' efforts and education policy in the state's largest newspaper, and did a more selective review of coverage in the second largest one.13 Finally, of course, I tried to pay close attention to the standard legal materials, such as trial

transcripts and documents, legal briefs, judicial opinions, and the reform statute.

The school finance reform effort in Kentucky involved not only the Council for Better Education (the plaintiff group), but also a "citizen's or-

ganization" called the Prichard Committee for Academic Excellence (Prich- ard Committee), which formed in 1983 to lobby for substantive educational reforms. At the outset of the litigation-focused project in 1984, these two

groups declined to work together. However, by 1987, they joined forces, with each participating in the other's activities.

I organize an account of this conflict under the following major head-

ings: (A) Historical and Political-Institutional Context; (B) Legal/Political Mobilization and the Common School Vision (1983-87); (C) Trial Court Decisions and a Constitutional Politics of Education Reform (1988); (D) The Supreme Court's Decision: Kentucky's Brown v. Board of Education (1989); and (E) A Summary of the Legislative Response: Policy Outcomes and Impact (1989-95).14 What follows is an account of legal mobilization and policy reform. Aside from noting changes in the absolute level and relative distribution of resources for education, I do not address many im-

portant questions about policy implementation.

A. Historical and Political-Institutional Context

Kentucky is a poor, predominantly rural state. As of 1990, the state's per-capita income was $15,000, and 27% of its children lived in poverty. The majority of its 3.7 million people lived in rural areas or towns with

13. The largest newspaper is the Courier-Journal of Louisville, and the second largest one is the Herald-Leader of Lexington. In the text below, I cite articles in these papers by initials (C. J. for Courier Journal and H. L. for Herald-Leader) and date of publication. Newspaper articles cited are presented as part of the reference list at the end this piece.

14. There is a well-done treatment of this litigation (Dove 1991). More recently, another article addressing the politics of education reform in Kentucky has appeared (Hunter 1999). I do not disagree with the description of the controversy and the flow of events in either of these two pieces. However, neither addresses the literature in political science on law and reform politics. Moreover, my account highlights several themes that these articles overlook, including the relevance of the state's political history and institutional developments; the transformation of the lawsuit over time from one based on the Serrano case from Califor- nia to one focused on "adequacy," with adequacy elaborated according to common school ideology; and the content and rhetorical character of the state high court's opinion in the case.




populations of 25,000 or less. African Americans made up approximately 7% of the state's population, the lowest percentage in the south, and most lived in Kentucky's two largest cities, Louisville (population 269,000) and

Lexington (population 225,366). The county school districts encompassing Louisville and Lexington-Jefferson County and Fayette County, respec- tively-are two of the wealthiest in the state. Hence, racial discrimination was not an issue in this school finance controversy (Miller 1994, 10-11, 72; Dove 1991, 83-84).

Kentucky's political culture has been characterized as "highly tradition-

alistic," marked by low levels of political participation and general deference to a small set of politically active elites (Miller 1994, 3). People are "suspicious of change," suspicious of politics, and "above all suspicious of taxes of all kinds, for all purposes" (Pearce 1987, 3, 7-8). Although the state is di- vided by sharply different geographical regions, these local divisions do not

preclude what one scholar has called "state patriotism" (Landy 1984). "Ken- tuckians" generally do think and talk about themselves "as Kentuckians."

They have a sense of state citizenship that we would not find in many other states.

Three more specific historical-institutional factors shaped the terrain of school reform in the 1980s.

1. Party Politics and Stable Bifactionalism

From the 1930s through the 1960s, two fairly stable factions within the Democratic Party, each with a distinctive ideological orientation, main- tained their identity and vied for control of state government. One faction, headed up by A. B. ("Happy") Chandler, generally took a right-populist stance against government and taxes. The other faction, initially run by Earle Clements, was known as "the Administration faction." It embraced the moderate reformism of the New Deal and mirrored the New Deal Coali- tion (Landy 1984).

Two prominent leaders of the Administration faction played central roles in school reform in the 1980s. Bert T. Combs, who had sat on the court of appeals (then the state's highest court) from 1951 to 1955, eventu-

ally won election as governor in 1959. His administration was marked primarily by a difficult but successful fight to enact a 3% sales tax and by a 62% increase in state spending for education (Pearce 1987, 64-65,120-21). In the early 1970s, Combs retired from politics and joined the state's largest law firm. He had "an outstanding personal reputation for probity and hon-

esty." Although little known outside the state, Combs was virtually a "household name" in Kentucky (Landy 1984, 201, 206). In 1984, after being pressed by reformers to do so, Combs agreed to serve as lead counsel for

plaintiffs in the school finance case (Combs 1991).




Edward F. Prichard Jr. was another important player in the Administra- tion faction. After a stint as law clerk to Justice Felix Frankfurter in the late 1930s, Prichard served in various New Deal agencies and then returned to

Kentucky to launch his political career. However, in 1948, he was caught stuffing ballot boxes and spent five months in federal prison before a pardon came from President Truman. In the late 1950s, Prichard became good friends with Combs and eased into a behind-the-scenes role as the Adminis- tration faction's main strategist and speech writer. In the early 1980s, Prich- ard founded a citizen's organization dedicated to educational reform, and it became known simply as "the Prichard Committee" (Dove 1991, 10; Schlesinger 1985).

2. Political Institutions and Institutional Developments

Kentucky's late-nineteenth-century constitution reflects a general mis- trust of government. It "is a narrow, rambling document designed to curb

government rather than guide it, a collection of restrictive statutes rather than an outline of principles" (Pearce 1987, 15). Given Kentucky's pa- tronage-driven politics, governors have traditionally overshadowed and dominated the other branches. However, since the late 1970s, the legislature has increasingly sought ways to challenge governors, especially with

respect to the budget process (Miller 1994).15

Kentucky's judicial system was restructured through constitutional amendment in 1975. This amendment established an intermediate appellate court to handle routine appeals, thereby allowing the high court to control its docket. The 1975 amendment also made judicial elections nonpartisan, and since then "electoral accountability" has been more form than substance. Over the past 15 years, the Supreme Court has decided several separation-of-powers cases brought on by the legislature's new assertiveness. Generally, it has tended to side with the legislature. What the Court did with Council for Better Education cannot be fully understood apart from this inclination to support the legislature in its conflicts with the executive (Miller 1994, 101, 154-61).16

15. The Kentucky Constitution of 1891 was the state's fourth. Efforts at wholesale revi- sion have failed since 1891, but the constitution has been amended piecemeal 32 times since then. The 1891 constitution originally provided that the state legislature ("the General As- sembly") would sit for only 60 days every two years. It also limited the governor to a single four-year term, and fragmented executive power by establishing several independently elected executive offices. A 1979 amendment to the constitution permitted the biennial 60-day session to be held over a period of four months, increased staff resources for legislators, and provided for an "interim committee system" to operate when the legislature is not in session (Miller 1994).

16. Some of the relevant separation of powers cases are: Brown v. Barkley (1982); Legisla- tive Research Commission v. Brown (1984); and Armstrong v. Collins (1986).




3. The School and School Finance Systems

For most of the 1980s, Kentucky had 180 school districts. Most of these districts (120) are coextensive with county units; the others are "independent" districts that generally pre-date the county-based organizations. The school finance system that reformers attacked in the mid-1980s can only be described as archaic. Unlike systems in most other states, the Kentucky system distributed the vast majority of state aid for education on a flat-grant basis. In addition, the system was plagued by lax property tax assessment and collection practices, as well as a series of revenue-limitation measures enacted at the state level. As a practical matter, as property values went up, property tax rates had to decline.17

B. Legal/Political Mobilization and the Common School Vision (1983-87)

In this subsection, I describe the arguments and activities of the two

organizations behind the school reform effort, covering the period from 1983 to 1987, when Council for Better Education went to trial. I also provide a brief account of the trial itself as well as the immediate political context for the trial court's decisions in 1988.

1. The Council for Better Education: Three Men, a "Serrano Suit," and the Lawyer-Politician

Rose v. Council for Better Education began with a state-level administra- tor named Arnold Guess. As of late 1983, Guess had spent over 30 years working in the state's school system, and he was at this point the director of the state Department of Education's Bureau of Administration and Finance. Over the previous decade, he had periodically discussed the possibility of a school finance suit with two friends, Ker Alexander and Ted Lavit. Alex- ander was an education professor specializing in school finance policy, and Lavit was a lawyer and solo practitioner. All three had followed the seminal school finance case from California, Serrano v. Priest (1971, subsequent his-

tory omitted), and had thought about a potential case in Kentucky as their own "Serrano case" (Guess Interview; Lavit Interview; Alexander Interview; Dove 1991).

17. In Russman v. Luckett (1965), the state's highest court held that the state constitution required that property be assessed at "100% of fair cash value." In response, in 1966 the legislature passed a revenue-limitation measure, known as "the Rollback Law," pegged to 1965 tax yields. In 1979, the legislature passed House Bill 44, a property tax revolt measure limiting revenue growth for school districts to 4% per year. Higher revenue yield was subject to voter recall. For the history of Kentucky's school finance system, see Rose v. Council for Better Edu- cation (1989, 194).




In 1983, Guess supported the losing candidate in the election for state

superintendent of public instruction. When the victorious candidate made it known that he would be fired, Guess determined to organize a group of school districts to bring a lawsuit. Beginning in early 1984, he targeted local school superintendents, initially focusing on "the bottom half' of the wealth distribution of school districts. Alexander and Lavit helped him with this

project. Also in early 1984, a newly elected governor, Martha Layne Col- lins, proposed a tax increase to finance school reforms. However, the legislature refused to go along, and the governor's education package was voted down. Thus, Guess, Alexander, and Lavit's initial effort to form a group of school districts to pursue litigation took place against the backdrop of what would be the first of several failed efforts at reform (Guess Interview; Miller 1994, 240; H. L. 1/4/84; C. J. 7/10/84).18

By mid-1984, an initial round of meetings and discussions had produced enough interest to form a steering committee of interested local su-

perintendents and school board members. Participating superintendents agreed to seek an allocation of funds from school boards in their districts in order to support the proposed litigation. At the outset, the group's primary reference for strategies and goals was Serrano v. Priest. The operative legal theory of Serrano (first a federal and then a state equal-protection case) and the remedies granted in it focused narrowly on the equalization of local district tax capacity and expenditures per pupil. However, unlike Serrano, this case already had live (potential) plaintiffs with a political and financial stake in the litigation. As a group, the Council would at least to some extent become engaged in political conflict, and it would have to begin to fashion its own local constitutional arguments.19

18. The substance of the governor's education proposals included more standardized testing of students and competency testing for teachers. The ideological orientation toward education was consistent with "the excellence movement" sweeping the nation in the early 1980s. For a statement of this conservative view, see A Nation at Risk, a report issued by the National Commission on Excellence in Education (1983). See also Toch 1991.

19. To be sure, the Council was not at this point and never would be marked by high levels of ongoing participation. As an organization, it existed solely to prosecute the legal action. It met every few months, with approximately 20 to 30 people attending each meeting. Still, a network reaching into many school districts did prove useful for distributing information, keeping the lawyers apprised of developments in other organizations in education, and bringing some pressure to bear in the legislative arena in certain instances (Guess Interview; Moreland Interview).

For the theoretical origins of Serrano, see Coons, Clune, and Sugarman 1970. In the late 1960s, Coons et al. argued that school finance reformers should embrace a minimalist position, which they called "wealth neutrality." Richard Lehne summarized this principle as follows:

the quality of education in individual communities is enhanced when local people support and run their own schools. What must be assured, however, is that their decisions about school operations and school funding are not restrained by the wealth of their locality; in other words the quality of education must not be a function of the wealth of the local community. "Fiscal neutrality" can be achieved by a school funding device called "district power equalizing." Under this scheme, all property tax values in the state




The group's initial meetings and planning sparked opposition and re-

prisals from potential state defendants, including powerful legislators. Repri- sals included state audits of participating local districts, and threats of legal action under the theory that the use of local district funds to support litigation was contrary to law (Alexander Interview; Moreland Interview; Dove 1991, 89).20 Given these difficulties, the group decided to ask Bert T. Combs to serve as lead counsel in the litigation. Combs brought to the case not only the economic resources of the state's largest corporate law firm, but also his great wealth "in the political currency of Kentucky-status, reputation, friends, loyalty" (Alexander Interview). In other words, Combs was a

good politician as well as a good lawyer. The way he handled the case both

helped to build political support and moved the content of the challenge away from the Serrano model and toward a more broadly framed (and highly rhetorical) argument about the "adequacy" of funding and the overall quality of schools.21

Combs began by withholding his support unless additional school districts agreed to join the group. Once he agreed to serve as counsel, Combs advocated a "go-slow approach." In his view, going to court had to be, and had to be perceived to be, a last resort (Louisville Times 12/4/84). In fact, although the case was not actually filed until November 1985, Combs as-

signed an associate (Debra Dawahare) to begin research much earlier.

Combs, Dawahare, Lavit, Alexander, and a few others began drafting memoranda and a complaint in November 1984. In May 1985, the group

are considered part of one pool. Taxes set at a given rate will produce the same number of education dollars for each community in a state, regardless of the property values actually located within its boundaries. (Lehne 1978, 12, emphasis added)

Mr. Guess stated that his initial policy goal was "power equalization, pure and simple" (Guess Interview).

For discussions of various problems with the theory of Serrano ("wealth neutrality" and what the California courts did with it), see Elmore and McLaughlin (1982, especially 42-45) and Clune (1992). Quoting Derrick Bell, Elmore and McLaughlin wrote this:

One of the most thoughtful statements on this issue comes from Derrick Bell, who played an important role in initiating Serrano. "Serrano represents a kind of suit about which I have since come to have serious doubts," he says. "Because of the way the legal issues were defined and because of the role the plaintiffs played in the case, there was no obvious political constituency to press for legislative action after the Court made its decision.". . . Legal doctrines that do not galvanize a political constituency are likely to remain legal doctrines, rather than becoming policy. (1982, 44) 20. Alexander, plaintiffs' main expert witness, informed me that he testified before the

legislature's Joint Interim Committee on Education about school finance issues in July 1984 and that he was not well received: "I told them that the current funding system was unconstitutional. We had a very contentious ... exchange .... Their position was, overwhelmingly, 'the voters won't support a tax increase."'

21. Alexander stated that Guess "knew [Combs] ... I mean on a personal basis, and in Kentucky that means something." Guess stated that he first met Combs in eastern Kentucky in 1954: "That year, I heard him give a speech in Prestonberg in which he said that we ought to be ashamed of the condition of our schoolhouses" (Alexander Interview; Guess Interview). For Combs's own account of his involvement in the case, see Combs 1991. Combs died in a car accident in December 1991.




adopted articles of incorporation and the name Council for Better Educa- tion. Gaining momentum, the Council now numbered 66 school districts (Guess Interview; Dawahare Interview).22

From the outset, all Council participants were mindful of the need to reassure wealthier school districts and the public generally that they themselves were, as they put it, "anti-Robin Hood." The Council advocated an infusion of funds and "leveling up"; it had no desire to take resources away from any district. This stance was principled rather than strategic, although it had strategic implications. Given meager levels of spending for education in the state as a whole, these reformers believed that it would be morally wrong to cause resources (whether state or local) to be taken away from any district. Moreover, Guess and his associates gave life to this view by approaching personnel in every school district in the state in order to ask them to join the group and support the litigation. A few wealthier districts did join, and some individual officials from others agreed to provide behind- the-scenes support. According to Guess, approaching every district allowed the Council to make its case for "fair treatment" for the poor and at the same time to offer reassurance on the redistribution issue. As a result, many potential opponents in the school finance conflict were "neutralized" (Guess Interview).23

In July 1985, the governor called the legislature into a special session for another pass at education reform. Her second effort was a response to

public pressure brought to bear by the Prichard Committee (see next section). Although the legislature adopted some modest reforms, in the end it failed to fund them. Once again, elected officials' fear of voter reactions to a tax increase was the major sticking point.

The Council filed suit in state court on 20 November 1985. Plaintiffs named the governor, various other executive officials, the president pro tem of the state Senate, and the speaker of the House of Representatives as defendants. The complaint alleged that the current school finance system violated the education and equal protection clauses of the state

22. Here, I also rely on my review of the files on the case at Combs's law firm, Wyatt, Tarrant, and Combs (cited below as Combs Files). Lawyers also provided leverage in the conflict over whether local districts could use funds to support the litigation. Ted Lavit found case law that plausibly could be read to support the authority of local school districts to use funds to support the group and its litigation project. The Council filed a request with the state attorney general for a ruling to this effect. The attorney general agreed with the Council's argument, and issued a favorable opinion on 2 July 1985 (Opinion by David Armstrong, Attorney General, OAG 85-100, 2 July 1985 [available on LEXIS]).

23. Dove's article also documents the "anti-Robin Hood" stance of the Council for Bet- ter Education (1991, 89, 115). The Council's early planning memoranda reflect a concern about the strategic implications of this "leveling up" versus "leveling down" problem. By the time of the Supreme Court's decision in the case, talk of leveling of any sort, up or down, had faded into the background of a much broader debate about substantive policy changes and the dollars needed to pay for them (Combs Files).




constitution.24 With the failure of the legislative route to reform in both 1984 and 1985, Combs could answer critics of the litigation with the claim that "he did not urge the school superintendents to file the suit." As he told the press in early 1986, the superintendents "were reluctant to file the case, but thought they had a duty to do so" (C. J. 1/19/86). As the Council's

project got off the ground, another education reform organization was work-

ing to bring about change.

2. The Prichard Committee for Academic Excellence

The Prichard Committee for Academic Excellence had its origins in an

advisory panel appointed by the State Council on Higher Education, a permanent body, in 1980. This permanent body named 28 "prominent citizens" to this advisory panel, and it asked Edward Prichard to serve as chair. Its task was to assess the state of higher education in Kentucky and to make recommendations for change. Bert Combs was also a member of the advi-

sory panel. A man named Robert F. Sexton was hired to coordinate the

panel's activities. Over the next 10 years, Sexton became a central player in

shaping the educational reform agenda in the state (Sexton Interview; C. J. 5/27/80).25

In 1981, the Prichard Committee published a report on higher educa-

tion, calling for higher taxes to fund a set of improvements. Although its activities and recommendations received public attention, elected officials

ignored the report. Sexton stated that he and Prichard drew two main lessons from this experience. First, a lack of public pressure rendered the

group's hard work and reasoned arguments meaningless in Kentucky politics. Any real change would require organization to overcome resistance to

higher taxes. Second, a close study of deficiencies in higher education led the group to notice severe problems with Kentucky's public schools (Sexton Interview; H. L. 6/8/82).

In mid-1982, Prichard announced that his advisory panel would recon- stitute itself as "a voluntary citizens' group." In 1983, the Prichard Commit- tee expanded its membership from 28 to 58 "citizen volunteers," and

24. The complaint was modeled on the complaint in Serrano, and it still reflected the influence of Serrano on reformers' thinking, right down to use of the seven richest and seven poorest school districts for purposes of comparison. As of 1983-84, the complaint noted, the highest-spending district in the state (Anchorage Independent, a K-6 district in a wealthy suburb of Louisville) spent $4,109 per pupil, while the lowest-spending district (McCreary County in eastern Kentucky) spent $1,641. The average-per pupil expenditure among the seven highest-spending districts was $2,726, while the average among the seven lowest was $1,748 (Council for Better Education et al. v. Martha Layne Collins 1985, Complaint, 10-11; Combs Files, copy on file with author).

25. Sexton grew up in Louisville. He did his undergraduate work at Yale in the mid- 1960s, and then went on to receive a Ph.D. in history at the University of Washington in 1970. Through the 1970s, he taught for a few years and then moved into administration at the University of Kentucky.




announced that it would turn its full attention to elementary and secondary education. Sexton then secured foundation support to fund one full-time staff position (his) and to cover the group's expenses. Sexton and his col-

leagues consistently used the term "citizens" and "citizen volunteers" to refer to members who participated in the Committee. This would be a prominent citizens group, however-one made up of former governors (including Combs), corporate executives, lawyers, and doctors. Still, Prichard and Sex- ton consciously sought certain other kinds of "representation." Thus, they included several social service providers; leaders from other civic organizations, such as the League of Women Voters; and members drawn from "different regions of the state." And "strong efforts were made to include women and African Americans." Finally, the Prichard Committee con-

sciously excluded the leaders of established educational interest groups, such as the teachers' union and the school boards association, in order to main- tain "an outsider's perspective" on the existing system (Sexton Interview; C. J. 6/6/82; H. L. 9/8/83).

This newly reconstituted Prichard Committee settled on two main

projects that would occupy it for the next two years. The first project was the organization of a statewide, electronic town forum on education. The

purpose of the town forum was to induce the governor to support education reform and a tax increase after her first failed effort in 1984. This organizing effort took place over the course of that year, and it produced a groundswell of public support that led to the special legislative session on education in mid-1985. Shortly after the town forum, Edward Prichard died, and Sexton moved into a more public role. The second project involved the production and distribution of a report on Kentucky's public school system entitled A Path to a Larger Life: Creating Kentucky's Educational Future. A cross between a citizen's pamphlet and an academic tract, A Path to a Larger Life reflects a strong commitment to common school ideals. In both its general outline and specific policy proposals, it foreshadowed the package of reforms eventually adopted by the legislature in 1990.26

To produce this report, Sexton orchestrated a remarkable process of

group study and deliberation among Prichard Committee members. In 1983, the Committee organized itself into seven subcommittees, with each responsible for studying and making recommendations in a specific educational policy area. Each subcommittee had approximately 8 to 12 people

26. The town forum took place on 15 November 1984, with attendance estimated at 20,000 (H. L. 9/19/84; C. J. 11/11/84, 11/17/84). In a study of the Prichard Committee, education professor Jacob Adams noted that in "addition to the large number of participants [at the town forum], 6,000 individual comments were recorded, 15,000 written statements were handed in, and 200 letters came directly to the Prichard Committee" (Adams 1993a). A Path to a Larger Life: Creating Kentucky's Educational Future was initially released in 1985. In early 1989, while Council for Better Education was pending before the Kentucky Supreme Court, the report was re-released as a publication of the University of Kentucky Press.




and a coordinator responsible for communications with Sexton and the

larger group. Each met every month for a little over a year. These meetings often took the form of seminars, with conversations focused on the relevance of policy materials to participants' own views and experiences (Sex- ton Interview; Heine Interview).27

If the final product can be taken as indicative, it seems that Sexton and his colleagues were drawn to and made use of what was then but a faint undercurrent in the national education debate. Both the dominant national views and the rush to reform in other states generally embraced the meritocratic, "get tough" outlook of A Nation at Risk. By contrast, Prichard Committee members gravitated toward the common school themes articulated by Theodore Sizer, John Goodlad, and others. Out of the collisions between these broad academic arguments and their own practical experiences, Prichard Committee members fashioned a brief for comprehensive educational reform in Kentucky (see Sizer 1984; Goodlad 1984; and, generally, Toch 1991).

A Path to a Larger Life runs about 120 pages and contains 7 chapters, covering teacher training, curricular reform, school governance, social ser-

vices, measuring educational outcomes, vocational education, and school finance policy. The "talk" in the report is always about Kentucky and what "Kentuckians" share or have in common, and the orientation is always toward the future. Throughout, references to taxes and expenditures are located in a broader common school argument about why more money and more equality in the distribution of resources are needed. The purpose of the

chapter on school finance, the report notes, "is to determine the financial mechanisms necessary to implement the improved educational program rec- ommended by the Prichard Committee" (Prichard Committee 1989, 99). Thus, school finance reform is merely a means to otherwise-justified ends.28

27. The seven subcommittees were (1) teaching and teacher education, (2) high school reform, (3) administration and leadership, (4) vocational education, (5) school effectiveness (effective schools research), (6) children and youth services, and (7) school finance policy. My comments here are also based on a review of the separate files of four out of seven of these subcommittees, for the period 1983-85. The files were extensive, with roughly 200 to 300 documents for each subcommittee, assuming each separate item constitutes a "document." The files consisted of journal articles, policy reports, newspaper and magazine clippings, inter- nal memoranda, agenda sheets, summaries of meetings, drafts of subcommittee policy statements, and the like.

28. Reflecting its broader endorsement of modern common school ideology, the content and rhetorical tone of A Path to a Larger Life emphasized the culture of schooling, pedagogical style, and broad training for common citizenship. For example, a chapter on "goals and curriculum" took issue with the "'work harder' message ... of several of the leading national education reports of recent years." "By itself," the report proclaimed, "more rigor is not enough" (Prichard Committee 1989, 21). As Goodlad and Sizer had each pointed out, communities with successful schools have reasonably focused and agreed-upon goals. The report then articulated a set of model "goals" for "all students." Underlying this statement of goals, it continued, "is the belief that the pursuit of 'excellence' must also include the pursuit of 'equality"' (1989, 24-27). Another chapter on social services in schools ("A New Commitment to Children and Youth") made the case for preschool programs and counseling and support




A Path to a Larger Life is significant in the Kentucky reform effort for three reasons. First, its production involved a political process of group meetings, discussions, and debates. The process helped build a cadre of in- fluential citizens committed to a particular reform agenda. Second, the Prichard Committee made sure that its report received significant media attention. Third, the report's common school rhetoric and policy recommendations entered the litigation directly in various ways. Sexton presented the Prichard Committee's views at trial, and A Path to a Larger Life was

accepted into evidence. Thus, the report was part of the record in the case before the Kentucky Supreme Court (Sexton Interview). More important, within the Council for Better Education and among its team of lawyers, Bert Combs increasingly argued for "more of a focus on the quality of schools .... 'we have to make the case for good schools,' he said, 'as well as ade-

quately financed schools"' (Guess Interview, quoting Combs). As of late 1984, the Prichard Committee leaders had no interest in

supporting the school finance reform lawsuit. Although Combs had asked for Prichard and Sexton's support, Sexton noted that

We just decided that we didn't want to get involved. ... It was a finance equity suit, and we didn't see finance as the central issue. We didn't get involved until 1987 [when] Combs came back and asked me to testify at trial. I testified, and our Committee decided to submit an amicus brief.... In 1984, the legislative prospects were, we thought, good. In 1987, we had a different view of the prospects for reform through legislative action.29

services, such as teenage pregnancy prevention and in-school day care: "National reports claim that the 'nation is at risk,' but these reports have not always, in our view, concentrated on the most relevant reasons for this risk," the report stated. The nation was experiencing "a poverty boom," and children were "getting the brunt of it" (1989, 49-51). The report then offered a litany of arresting national and state-level statistics. The facts of poverty and its consequences "show that the lives and problems of all children, not just our own and our neighbors, affect all Kentuckians" (1989, 53).

In his work on broader ideological frameworks and educational policy questions, political theorist David C. Paris offers an argument for "the presumptive priority" of the aims of the common school over other alternatives. The notion here is that inevitable value conflicts can be to some extent ordered by a core focus on common school themes and values. Of course, there are other important values that schools can and should endorse, but these other values might usefully be thought of as "orbiting around" a core commitment to common school themes and objectives. He states, "The point of a common, public system of education should not be merely academic achievement or the creation of a trained workforce or the creation of markets for educational services. It should be to give all children the intellectual and social skills that will permit them to be responsible citizens" (1995, 194). I have relied upon this work here.

29. Similarly, of the Prichard Committee, Arnold Guess stated, "We knew what they were doing, and we approved of it, but they weren't going to court .... They weren't getting their feet wet. They were just begging and pleading. There had been various studies over the years, and I'd been involved with some of them, but nothing had been done" (Guess Interview).




3. Council for Better Education Goes to Trial

As noted above, the Council for Better Education filed its complaint on 20 November 1985. Legislative leaders then retained a private lawyer named William Scent to handle the case for all state defendants. After the trial court denied Scent's motion to dismiss, the latter part of 1986 and much of 1987 were taken up with preparation and pretrial discovery.

The case went to trial in August 1987 and lasted six trial days. Debra Dawahare, Combs's associate, summed up Combs's trial strategy this way: "Keep it simple, keep it quotable, and don't get bogged down in the techni- calities" (Dawahare Interview; Dove 1991, 95). Similarly, Kern Alexander noted that part of this effort to "keep it simple" involved "bifurcating the issues" between "violation and remedy": "My advice was not to get that remedy problem mixed in while you're determining constitutionality. ... If you drag all these complex formulas before judges, they'll get nervous. It looks far more legislative when you start talking about the complications involved in fashioning a new system." As for "constitutional violation," Al- exander urged the group to argue that the state constitution was a "living document" and to use common school rhetoric to inform their claims about the meaning of the state constitution's education clause (Alexander Interview).

At trial, Combs and his colleagues ended up emphasizing "adequacy" far more than "equalization." For example, in his opening statement, he told the court (and "the news media") that:

Mr. Combs: We will prove, I think, beyond question, that in these 66 school districts which are plaintiffs . . . that the school system is not efficient, is not adequate, is not sufficient, and does deprive the children in those districts of an opportunity to get an adequate education.... Now there will be some talk of uniformity. There will be some talk about inequality, but that is not the thrust of plaintiffs' lawsuit. The thrust of this lawsuit is inadequacy.... I want everybody, particularly the news media, to know that we are not talking about taking money from a district that has money and giving it to [poor districts] .... We are talking about raising the level in the poor districts and whether it would ever be equal to [rich districts] would remain to be seen.... We are not going to be specific ... in suggesting a solution. I doubt that any one man knows the solution. Now I am hoping that Your Honor is the exception. I am hoping you would have a magic formula of some kind that could correct this situation. The Court: Hope springs eternal.30

30. Council for Better Education v. Martha Layne Collins, Trial Transcript, 4 August 1987, day 1, 3-6, in Combs Files (hereinafter Trial Transcript).




Plaintiffs offered the testimony of administrators from poorer school districts and several education policy experts. Sexton, who was qualified as an expert, presented the views of the Prichard Committee. He offered a litany of statistics comparing Kentucky as a whole with other states. Alex- ander testified about the deficiencies of the school finance system and also offered a discourse on the proper interpretation of the state constitution's education clause.31

William Scent, counsel for state defendants, built his case around three basic propositions. First, low spending in poorer districts was in part due to low tax effort. Second, plaintiff districts in particular routinely squandered resources through mismanagement, nepotism, and corruption. Third, the

legislature (his "client") had made good-faith efforts to pass reforms, but it was and remained constrained by overwhelming public opposition to tax increases. To the extent that he offered a general theory of his case, Scent

appealed to separation-of-powers principles to argue against judicial intervention.

Plaintiffs admitted the truth of the first two propositions. Kentucky was unusual in that poorer districts generally did make a lower tax effort than did wealthier districts, and mismanagement and corruption were serious

problems in some districts. However, they countered that low tax efforts were related not only to low levels of education in the first place, but also to a lack of public trust in local schools. In turn, a lack of public concern and attention created the conditions for local officials to get away with misman-

agement and corruption. In early 1988, the parties submitted posttrial memoranda and made

their closing arguments to the court.

4. Legislative.Executive Deadlock

In the 1987 race for governor, Wallace Wilkinson, a relatively unknown multimillionaire who had never before held elective office, scored an upset victory on the strength of a pledge not to raise taxes.32 Wilkinson had a confrontational style, and he quickly alienated most long-time legislators. For their part, most legislators were unwilling to advocate higher taxes unless the governor was willing to do so as well (Moloney Interview; C. J. 12/ 12/87).

31. Trial Transcript, day 1, 35-99, Sexton testimony. Sexton testified that, nationally, Kentucky ranked 50th in adult literacy, 40th in teacher-pupil ratio, 40th in teacher pay, 39th in high school retention, 46th in percentage of high school graduates going on to college, 43rd in per pupil expenditures, and 40th in educational expenditures as a percentage of personal income. For Alexander's testimony, see Trial Transcript, day 2, 127-99, and day 6, 4-26, 52-69.

32. Wilkinson's antitax campaign was the brainchild of a (then) little-known conservative political consultant named James Carville (Miller and Jewell 1990, 67-125).




During the legislature's 1988 regular session, the new governor proposed a package of "accountability-based" education reforms that would re-

quire defining educational goals and designing a system of monetary rewards and regulatory sanctions based on performance. It included little new spending, and no tax increase. Legislators buried the governor's plan in committee, and mutual public accusations and criticisms followed. This legislative- executive deadlock over taxes and education reform continued until the

passage of the Kentucky Education Reform Act in March 1990 (Miller and

Jewell 1990; Moloney Interview; C. J. 1/30/88, 2/5/88, 3/12/88).

C. Trial Court Decisions and a Constitutional Politics of Education Reform (1988)

Over the course of 1988, the trial judge issued three rulings in Council

for Better Education. In his initial ruling, he held that the existing school finance system failed to provide all children with "substantially equal education opportunities," as required by both the education and equal protection clauses of the state constitution. In this subsection, I review these decisions and note their legal and political effects. Reformers' victory at trial both

expanded the scope of the conflict over education and continued to push its substantive focus away from the Serrano model and toward the vision of the common school.

1. The Trial Court's Decisions and Process

In his initial decision (May 1988), Judge Ray Corns embraced reformers' interpretation of the state constitution's education clause: "The terms

'efficient,' 'system,' and 'common schools,"' he wrote, were all "terms of art" with "special constitutional import." "Efficient," for example, meant not

only "economic efficiency," but also "adequate, uniform, and unitary." Edu- cation was a "fundamental right in the Commonwealth," and the current finance system "fail[ed] to provide all of Kentucky's students with substan-

tially equal educational opportunities." Although the legislature had created a system "dependent upon local resources," it had "as a practical matter

hampered [local] districts' taxing power." Not only were there unjustified disparities in resources across districts-a result of a state-aid system distrib-

uting 94% of all state dollars on a flat-grant basis-but Kentucky as a whole

compared unfavorably to other states. Kentucky's school system was "one of the most severely deficient in the nation," the judge wrote. Kentucky's children were "suffering from an extreme case of educational malnutrition"

(Council v. Wilkinson 1988 [May], 11-15).




In June, Judge Corns appointed a five-member "Select Committee" and named Kern Alexander its chair (C. J. 6/7/88).33 This committee conducted five public hearings around the state and submitted a 20-page report to the trial court in September. The Select Committee's initial question was whether to propose specific school finance arrangements or merely to artic- ulate general principles. "We decided," Alexander said, "that we would not propose a specific system with formulas, but that we'd come forward with

general guidelines. In terms of strategy, we felt that if we were too specific, then the argument on appeal would be that the court was legislating" (Al- exander Interview). The report begins by stating general principles for a constitutional finance system. It then takes each of the central terms of section 183 of the Kentucky Constitution-"efficient," "system," and "common school"-and elaborates them largely in terms of each other, along with terms like "adequate," "universal," and "unitary." In turn, "adequacy" is discussed through vague talk of student "needs" and "capacities." There is no discussion of school finance policy until the very end, and even here we find only criticisms of the existing system and a call for a "more equitable" distribution of resources. Throughout, the rhetoric of the document appeals to the common school tradition.34

In October, Judge Corns issued his final ruling. He again held that the constitution's education clause required "substantial uniformity" in the school system. He also adopted his Select Committee's statement of general principles and student capacities to be achieved. After noting that there was no constitutional prohibition on local school-district spending above some "minimally adequate" level, Judge Corns explicitly endorsed reformers' anti-Robin Hood view: "Since no district is over funded," he wrote, "to take funds away from any district in order to give them to another would have disastrous effects on the entire system." Finally, the court was not claiming "authority to tell the General Assembly how the system should be financed;" it was merely striking down the existing finance system (Council v. Wilkinson 1988 [October], 2-3, 6, 12).

33. The other four members of the Select Committee were another policy consultant who had done work for the plaintiffs, a member of the Prichard Committee, the state superintendent of public instruction, and a partner in Combs's law firm active in Republican Party politics (Select Committee Report 1989).

34. This report was presented to the trial judge on 15 September 1988. It is reprinted as Select Committee Report (1989). Common schools, the report notes,

were created as institutions where all children, regardless of economic or social condition, could obtain public instruction free of charge. . . . This enlightened [common school] philosophy generally followed the ideas of eminent thinkers of the time who sought to build a republican government on the foundation of a more literate and homo- geneous mass of people. The objective of unifying the people through education was recognized as a condition precedent to a strong and viable democracy. The . .. common school is clearly defined as one which is free and open to all children, where rich and poor alike can meet and learn. Further, it presumes a system of "practical equality," where a "perfect level" of education is offered to all. (1989, 145-47)




2. Political and Legal Effects

Reformers' trial court victory generated a great deal of media attention and expanded the scope of the conflict in several ways. Both the May and October decisions were front-page news, and reformers were featured promi- nently in these stories. They sought to trumpet Cors's decision as a "landmark." Combs told the press that the decision would have "historic

consequences": "This is the first time that a judge in Kentucky has held that education is a fundamental right.... It is the first time that a Kentucky court has had the intellectual courage to hold that the Kentucky constitution means what it says . . . that the State is obligated ... to provide an efficient system of public schools." Other leaders of the Council for Better Education were careful to emphasize their anti-Robin Hood position. For

example, Arnold Guess stated that "the solution is more revenue." A redistribution of existing resources, he added, would only "redistribute medioc-

rity" (C. J. 6/1/88 [Combs quote], 6/3/88 [Guess quote], 10/15/88; H. L. 10/ 15/88).

Important legislative leaders reacted angrily to the trial court's decision. They were especially concerned that the court would use its advisory panel "to dictate policy to the General Assembly," and said that they would

"boycott" the court's remedial process and begin holding their own hearings on tax and education issues. Thus, because matters of power and turf mean a lot in Kentucky politics, the trial court's decision set legislative leaders off on their own parallel course. By February 1989 (still four months before the

Supreme Court's decision), legislative leaders had developed a package of tax and education proposals that went way beyond anything they had considered before (Joint Statement of Senator Rose and Representative Bland- ford 1988 [on file with author]; H. L. 6/25/88).

Within a month after the trial court's May decision, the governor announced that he would not pursue an appeal in the case. He too thought that the existing school finance system was unconstitutional, but argued that his own "accountability-based" program would provide the necessary remedy without the need for new taxes (H. L. 6/4/88, 6/27/88).

The trial court's intervention also gave rise to a new "education coalition" composed of representatives of established educational interest groups. By January 1989, this coalition too had drafted a report endorsing many of the reforms that the Prichard Committee had been advocating since 1985

(Sexton Interview; C. J. 2/8/89).35

35. This coalition included the state superintendent of public instruction, and representatives of the Kentucky Education Association (the teachers' union); the Kentucky School Boards Association; the Kentucky Association of School Superintendents; the Kentucky As- sociation of School Administrators; the state parent-teacher association; the state Chamber of Commerce; and the Prichard Committee (Sexton Interview).




The trial court's opinions embraced reformers' common school rhetoric and attached it to the state constitution's education clause. This rhetoric would be picked up by the Kentucky Supreme Court. More specifically, the Supreme Court would adopt, with some modifications, the trial court's broad rhetorical statements about the goals of a constitutional system of public education and the "capacities" it should cultivate in students. At first blush, this sort of rhetoric strikes one as virtually meaningless. However, if such rhetoric is endorsed by a high court in the sonorous tones of constitutional interpretation and aspiration, and if it is then taken seriously and acted on in politics, it can channel thought and action in certain directions and not in others. This is what happened after the Court handed down its decision in Rose v. Council for Better Education.

D. The Supreme Court's Decision: Kentucky's Brown v. Board of Education (1989)

After the trial court's final order, the Kentucky Supreme Court granted state defendants' motion for direct review. The Court rendered its decision in June 1989. While the appeal was pending, the governor and legislative leaders continued to fight bitterly over tax and education issues (C. J. 1/14/ 89, 2/25/89, 5/4/89, 5/17/89, 5/26/89). Thus, the Court's decision came down in a context of mobilized attention to education issues and interbranch conflict. The Court would take the opportunity to strike down the entire public school system. Its bold stroke was significant both for its strategic implications with respect to the separation of powers, and for its passion- ate rhetorical appeal to the common school tradition. The Court's opinion completed the "constitutionalization" of the politics of education reform.

1. A Brief Word on the Legal Briefs

The brief for appellants (state defendants) hinged on two central constitutional concerns. First, what did the education clause (section 183) of the state constitution mean? Should the Court read that clause as a mandate that the legislature provide some "minimally adequate" level of resources for education, or some "minimally adequate" educational system as a whole? Second, how much deference should the Court give to legislative judgments about the meaning of section 183? Interestingly, Mr. Scent's brief contains a good deal of legal authority for his preferred answers to these questions. On the first issue, Scent turned to the 1890-91 debates over the Kentucky Constitution and found that several education clause amend- ments that included words like "adequate" and "uniform" were proposed but voted down. On the second issue, Scent cited several cases in which Ken- tucky's highest court had read section 183 as a grant of plenary power to the




legislature over "common schools" (Rose v. Council 1989, Brief for Appel- lants, 88-90). Even though Scent lost his case, the Kentucky Supreme Court opinion was, in an odd way, quite deferential to legislative power.36

Reformers' brief put great weight on the facts. "The evidence at trial," the brief begins, "established beyond question that Kentucky's public school

system remains one of the worst in the nation." The brief framed the central constitutional issue as a question about "what 'efficient' means." While this was technically a question of "first impression," it claimed, Kentucky's constitutional history supported its view. But here the best reformers could do was find a few quotes from the 1890-91 debates trumpeting the virtues of common schools and extract some language, generally taken out of context, from a few cases and statutes. Reformers relied heavily on one local case and cases from other states (Rose v. Council 1989, Brief for Appellees, 1, 39).37

The point here is not only that there was, as there usually is, authority for a decision either way. It is also that, if we are talking about "lawyer's law," local authority decidedly favored appellants. By June 1989, however, everything about the political context favored the reformers.

36. In its decision, the Kentucky Supreme Court cited some sweeping common school rhetoric from the constitutional debates without even mentioning any of the complications that Scent's brief raised about "constitutional intent." Scent cited several cases to support his claim that the courts should defer to the legislature on the meaning of section 183: Prouse v. Board of Education (1909) ("The whole subject of common school education is confided to the judgment of the General Assembly by the Constitution. It may create such agencies as it deems proper to carry out the provision of the Constitution"); Eliott v. Garner (1910) ("The constitution requires the General Assembly to provide an efficient system of common schools throughout the state; and how it shall best accomplish this object is purely a matter of legislative discretion"); and Commonwealth v. Griffen (1930) ("framers gave lawmakers wide lati- tude. What the system is, or is to be, is left wholly to the discretion of the Legislature") (Rose v. Council 1988, Brief for Appellants, 89).

37. The one local case was Wooley v. Spalding (1956). In Wooley, taxpayers and parents sued county and state school officials after the county board of education closed a high school in one part of the county district. The county board's proffered reason for closing the school was the school's declining enrollment. However, plaintiffs in Wooley were able to show that the board had discriminated against the school by decreasing its resources and that the board was motivated by a desire to favor private Catholic schools located near the disfavored public high school. Reformers cited the following language from Wooley to support their constitutional argument: "The fundamental mandate of the constitution and statutes of Kentucky is that there shall be equality and that all public schools shall be nonpartisan and nonsec- tarian.... Uniformity does not require equal classification but it does demand that there shall be a substantially uniform system and equal school facilities without discrimination as between different sections of a district or county" (emphasis in original). If Kentucky statutes and the education clause of the Kentucky constitution required "substantial uniformity" and "substantial equality" within one county district, plaintiffs argued, why shouldn't this same test apply to the state as a whole? The obvious difficulties with this use of a case addressed to the discrimi- natory actions of a county school board to attack the state's entire finance system need not concern us here.




2. The Court's Opinion in Rose v. Council for Better Education

On 8 June 1989, the Kentucky Supreme Court handed down its decision in Rose v. Council for Better Education. Writing for the Court, Chief Justice Robert Stephens begins with an interesting introductory passage. The chief justice, it seems, aims to mark out the central features of the Court's opinion. The issue to be decided is "whether the Kentucky General Assembly has complied with its constitutional mandate to 'provide an efficient system of common schools throughout the state"' (Rose v. Council 1989, 189). In holding that it had not, Stephens wrote, the justices intended neither to criticize the General Assembly nor "to substitute [their] judicial authority for [its] authority and discretion." But "the framers of our constitution," he continued, "intended that each and every child in the state should receive a proper and adequate education, to be provided by the General Assembly" (1989, 189-90, emphasis in original). Indeed, "the goal of the framers" of the Kentucky Constitution "is elegantly and movingly stated in the landmark case of Brown v. Board of Education." The chief justice then sets out the famous language from Brown about the role of public education in a democratic society. This passage from Brown, Stephens added, would be "the polestar of this opinion"(1989, 190).38

This introduction neatly captures two related themes at the core of the opinion: (1) judicial deference to legislative power, and (2) the "constitutionalization" of broad principles. At the outset, Stephens has staked a claim to judicial modesty, and at first glance, this claim seems strange. What kind of deference could there be in a decision that would go on to strike down every statute having anything to do with education? However, as we shall see, the Court in Rose v. Council in effect did much to clear the path for legislative dominance of the subsequent reform process. Second, by im- mediately linking local "constitutional intent" to the United States Su- preme Court's opinion in Brown, Chief Justice Stephens has signaled the kind of project the Court wishes to undertake and the stature it wishes its opinion to have. In "interpreting" the meaning of the education clause of the commonwealth's constitution, the Court elaborated and constitutional- ized a set of fundamental principles only loosely tethered to the "constitu-

38. Stephens quotes this language from Brown v. Board: Education is perhaps the most important function of state and local government. Com- pulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instru- ment in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity where the state has undertaken to provide it, is a right which must be made available to all on equal terms.




tional" past. It spoke the language of constitutional aspiration, leaving it to others to work out particular meanings in the days, years, and decades ahead.

With respect to the evidence presented at trial, Chief Justice Stephens claimed that "an extensive discussion" was "really not necessary." Appel- lants had not seriously contested the factual accuracy of reformers' evidence. There were significant disparities across districts in financial resources, curricular offerings, student-teacher ratios, and achievement test scores. More- over, plaintiffs had shown that, judged by national standards, "all" Kentucky school districts were "inadequate." Kentucky as a whole, then, had failed to meet the "constitutional standard" (1989, 197-98). The trial court had erred in one respect, however. By retaining jurisdiction, the trial judge had improperly intruded on legislative authority. The courts would not direct the legislature to "enact any specific legislation" or to "raise taxes" (1989, 203).

Chief Justice Stephens then turned to the central question in the case: "What is an 'efficient system of common schools?"' In explicating the meaning of this phrase, the Chief Justice generally followed reformers' brief and the trial court's Select Committee report. A "brief sojourn into the constitutional debates will give some idea," he wrote, "of the depth of dele- gates' intention when Section 183 was drafted and eventually made its way into the organic law of this state." A Delegate Beckner, for example, said of "a system of common schools" that "'[i]t is a system of practical equality in which the children of the rich and poor meet upon a perfect level and the only superiority is that of the mind."' Similarly, another delegate stated, "Common schools make patriots and men who are willing to stand upon common land. The boys of the humble mountain home stand equally high with those of the mansions of the city. There are no distinctions in the common schools, but all stand upon one level" (1989, 204-5, emphasis added by the Court).39

What, then, would be the Court's definition of an efficient system of common schools? The Court, Stephens wrote, would "not make policy" or "substitute [its] judgment for that of the General Assembly." It would "simply take the plain directive of the Constitution, and, armed with its purpose ..., decide what our General Assembly must achieve in complying with its solemn constitutional duty" (1989, 211).40 The crucial passages of the Court's opinion are worth quoting at length:

The system of common schools must be adequately funded to achieve its goals. The system of common schools must be substantially uniform

39. The Court cites Official Report 1890, 3:4460, 4531. This convention lasted approximately eight months. The records of the proceedings are over 6,000 pages long.

40. A note on the Court's use of precedent: When Chief Justice Stephens turned to "legal precedents in Kentucky," he quoted language from four cases without bothering to




throughout the state. Each child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education. Equality is the key word here. The children of the poor and the children of the rich ... must be given the same opportunity and access to an adequate education. ... In no way does this constitutional requirement act as a limitation on the General Assembly's power to create local school entities and to grant to those entities the authority to supplement the state system. Therefore, if the General Assembly de- cides to establish local school entities, it may also empower them to enact local revenue initiatives to supplement the uniform, equal educational effort that the General Assembly must provide ... The essential, and minimal, characteristics of an "efficient" system of common schools, may be summarized as follows:

1.) The establishment, maintenance and funding of common schools in Kentucky is the sole responsibility of the General Assembly.

discuss the facts or issues. He simply set forth language supportive of his current claim that section 183 embodied some substantive standard that was not being met, adding his own restatements and embellishments. The only case Stephens discussed in any detail was Wooley v. Spalding (1956). It is not surprising that the chief justice is less than careful in his treatment of four out of the five cases he cites in a section on local "precedents." His effort here is the usual one-to create the illusion of legal authority for what is arguably a clear departure from prior law. My claim is that the Court's authority really comes from the fit between its rhetoric and what it "does" with respect to the legislature, on one hand, and the immediate, reformer- created political context, on the other. In only one case in the state's history had the state's highest court struck down a state statute because it violated section 183. However, the Court in Rose v. Council for Better Education did not rely on it, and it is instructive to consider why it did not.

In Trustees of Graded Free Colored Common Schools v. Trustees of Graded Free White Com- mon Schools (1918), a state statute permitted local taxes on corporations but provided that they could be used only to support the white schools. The Court of Appeals (the highest court) held that state law already, and quite appropriately, provided for "the sequestering of all revenues from the property of white people in the support of white schools." To now deny "colored schools" the benefits of taxes on corporations, in addition to confining them to the already "bare revenue arising from the property of colored people" would leave them with "no system at all." This "everlasting ruin of the colored schools," the court held, would "render the poorest and most helpless of our citizenship, those who are and have always been the state's special object of protection and care, a hopeless burden and menacing danger, instead of an efficient and helpful contingent." Thus, the court struck down the statute providing that funds from a permissive corporate tax also had to be dedicated to white schools. Reformers had cited this case in their posttrial brief to the trial judge, with an effort to cleanse it of what they called its "archaic racial distinctions." However, they abandoned reliance on the case in the brief on appeal, and there is no citation to it there. In Rose v. Council for Better Education, the Kentucky Supreme Court relegated it to an inconsequential footnote, which, in its en- tirety, read as follows: "The Court did, in fact, address the constitutionality of a statute under the mandate of Section 183 in Trustees of Graded Free Common Schools v. Trustees of Graded Free White Common Schools [1918]." For reformers on appeal and for the Court itself, it seems, although the case was directly on point, a direct confrontation with it (and the necessary "explaining away" of the "archaic racial distinctions") threatened to undermine the larger fiction that the Court was sifting some historical intent or purpose out of the past. I am merely pointing out that there are reasons to be skeptical about the Court's own assertions about historical intent and purpose. I do not wish to open up the theoretical issues involved in a claim that the Court is not really "following the law," for then I would have to give my own account of what it means to follow the law, and why my view is a correct or plausible one. The issue is important, but not for my purposes.




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 Assem- bly 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 with an adequate education. 9.) An adequate education is one which has as its goal the development of the seven capacities recited previously. (1989, 211-13).41

Because plaintiffs had shown that the current system did not measure

up to these "standards," it was "now up to the General Assembly to re- create, and re-establish a system of common schools." The Court then em-

phatically stated that it really was wiping the slate clean. The "entire system" was "unconstitutional." Any "[s]tatutes relating to education," it held, "may be reenacted as components of a constitutional system if they combine with other component statutes to form an efficient ... system" (1989, 215). However, the Court would "decline to issue any injunctions, restraining or-

ders, writs of prohibition or writs of mandamus." Not only would the Court not retain jurisdiction, it would not even consider its decision final "until 90 days after the adjournment of the General Assembly ..., at its regular session in 1990" (1989, 216).42

41. Earlier in the opinion, the Court had adopted a version of the Select Committee's list of "capacities" that a common school system should foster in all students:

We concur with the trial court that an efficient system of education must have as its goal to provide each and every child with at least the following seven capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of vocational or academic skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market. (1989, 211-12) 42. Four other justices joined Chief Justice Stephens's opinion for the Court. Of these,

two issued concurring opinions. Two justices dissented. However, one of the dissenting jus-




3. Judicial Rhetoric/Judicial Strategy

The rhetorical quality of the Court's opinion endorses reformers' common school vision. In this, it makes liberal and romantic use of the past- "there are no distinctions in the common schools, but all stand upon one level"-in an opinion that faces the future. It finds no targets of blame for the current state of affairs, but only serious problems in education that demand the attention of citizens and public officials. The Court's language appeals to the common good, and to what "all Kentuckians" (should) share in common. Over the next year or so, the Court's rhetoric was amplified as citizens, journalists, interests groups, and public officials made constant use of it in order to argue for and legitimize a certain kind of educational reform program. The Court's decision, as noted, was also quite deferential to legislative power. Not only did it provide cover on the tax issue, but by wiping the slate clean, it altered the existing balance of power in the ongoing fight between the governor and the legislature. Now, in theory, there would have to be some kind of legislative action before the 1990-91 school year, or else the "entire system" would expire. Wiping the slate clean put the spotlight on the legislature, and its leaders were now ready to take control.43

E. A Summary of the Legislative Response: Policy Outcomes and Impact (1989-95)

The Court's bold decision thrust the issue of education reform to the top of the state's public agenda. Public opinion polls revealed the high priority Kentuckians now placed on this issue.44 Furthermore, what had already

tices, Justice Vance, did so because he thought that the Court had not gone far enough to ensure equality in resources across districts. Only one justice, Justice Leibson, would have ruled in favor of appellants.

43. As noted above, plaintiffs had not asked for this sweeping declaration, and although there was evidence about education in general in the case, very little in the record supported the conclusion that every statute touching education should be struck down. As Combs put it right after the decision, "we asked for a thimble full, and we got a bucket full" (quoted in Miller 1994, 167-68).

44. A Bluegrass State Poll conducted between July 13 and 18, 1989, included the following question: "What do you think is the most serious problem or need facing Kentucky?" The largest number of respondents (38%) answered that education was, compared to 19% who said that it was "jobs and economic development." Sixty-seven percent of those polled said that they would be willing "to pay higher taxes if they were convinced the money would be used to improve the schools" (C. J. 8/6/89). Another Bluegrass State Poll conducted between January 18 and 24, 1990, "found that an overwhelming majority of Kentuckians [saw] improv- ing public elementary and high school education as highly important and ranked it above seven other major issues facing the legislature." Of the eight issues covered in this poll, education reform "was the only one called 'extremely important' by a majority of respondents" (C. J. 2/4/90). This period between mid-1989 and mid-1990 marked the only time in recent history when another issue had replaced unemployment, jobs, and the economy as the most important one (Miller 1994, 68-70).




been a constant stream of newspaper coverage increased markedly. Newspa- per articles appeared every day, and on many days four, five, or six articles covered education reform.

In light of the Court's impassioned argument and the public clamor for

reform, the governor and legislative leaders expressed a new resolve to make fundamental policy changes. "Change in the way we approach education in

Kentucky," the governor said, "is no longer a dream. It is the law. The Su-

preme Court ... has given us a great opportunity and an even greater re-

sponsibility." The House speaker noted that the decision required "starting from scratch," while the Senate president stated that "we're beyond politics now" (New York Times 6/9/89; C. J. 6/9/89).

Two weeks after the Court's decision, the governor and legislative leaders agreed to set up the 21-member Task Force on Education Reform, consisting of 16 legislators in leadership positions and 5 executive officials selected by the governor. The task force soon subdivided into three commit-

tees-curriculum, governance, and finance. Each committee retained a policy consultant from outside the state (Steffy 1993; Kentucky Legislative Research Commission 1994; Augenblick Interview; Newman Interview; Willis Interview).

Just as in the Prichard Committee's earlier work on A Path to a Larger Life, overall reform would be driven by a primary focus on curriculum and other issues related to the "point of contact" between teacher and student in the classroom. Once again, school finance issues would come last in order of

priority, and how they would be handled would be tied to the broader purposes and structure of schooling. The need for new revenue and for new school finance arrangements would be justified by reference to substantive educational reforms. Between mid-July 1989 and late February 1990, the Task Force on Education Reform and its three committees held 46 public hearings in the process of crafting the package of reforms passed in March 1990 as the Kentucky Education Reform Act (KERA). The hearings involved the testimony of tens of national and local experts and hundreds of interest group representatives and citizens. Although the legislative process of getting to KERA continued to be marked by conflict between the gover- nor and the legislature, particularly over the form that a massive tax hike would take, reformers needed only to keep watch as elected officials took up the mantle of reform.45

KERA became the leading national example of what education policy specialists were soon calling "systemic reform" (Odden 1992; Adams

1993b). In a word, KERA sought to change everything at once-from

45. In addition to sources cited in the text, this summary discussion is based on my review of records from the Task Forces on Education Reform's 46 meetings and interviews with key participants in this process. The Kentucky Education Reform Act was passed as House Bill no. 940, General Assembly, Commonwealth of Kentucky, Regular sess. (1990). The act is codified in Ky. Rev. Stat. Ann. § 156.000 et seq.




teaching methods and what is taught, to how student achievement is defined and evaluated, to school governance at all levels, to the school finance system. KERA is an enormously complicated piece of legislation. Its reforms touch virtually every aspect of education, and of course, much that matters is left to administrative discretion and policy implementation at various levels of the system.

In many ways, KERA embodies the (new) common school ideology reflected in the reform project and the Court opinions. Part 1 of the statute addresses questions of curriculum. It lists "seven capacities" that a common school education should foster, states that schools "shall expect a high level of achievement of all students," and then lists six "learning goals." A separate body attached to the State Department of Education is charged with the responsibility to render these goals "in measurable terms." Further, the State Board of Education is charged with implementing a "performance- based assessment and accountability system" providing for monetary rewards for success and regulatory sanctions for failure. The central common school features of the assessment and accountability system are that (1) the school (and not the student, teacher, or district) is the relevant unit for the distribution of rewards and sanctions, and (2) each school competes not with other schools but with itself. Rewards and sanctions hinge on a school's rate of improvement measured against a baseline of its own prior performance. The creation of this particular incentive structure at the school level dem- onstrates the drive toward a common base of knowledge for "all students."46

Part 2 of KERA addresses an array of "goverance" issues. These reforms sought to restructure the state education bureaucracy to enable it to

implement KERA's other provisions and to address problems of mismanagement and nepotism in many local districts. Accordingly, the Act took power away from local school boards and lodged it in school-based councils composed of parents, teachers, and the school principal.47

Finally, in part 3, KERA set up a new school finance system-Support Educational Excellence in Kentucky, or SEEK.48 SEEK's policy mechanisms

46. The six learning goals and seven capacities are restatements of the goals and capacities set forth in the high court's opinion in Council for Better Education (House Bill 940, 1990, § 2 and 3). Other significant changes in the "curriculum" part of the bill had to do with professional development, school-level organization and governance, and school-based social service provision (House Bill 940, 1990, § 2-11; see also Steffy 1993).

47. Among the many governance changes, KERA replaced the elected state superintendent of public instruction with an appointed commissioner of education. The new commissioner took over on 1 January 1991. KERA also provided that effective 30 June 1991, "all employment positions in the Department of Education shall be abolished and the employment of all employees in the positions shall be terminated." The new commissioner would have a free hand to reorganize the department as he saw fit (House Bill 940, 1990, § 33-44). For an interesting overview of administrative decentralization and site-based management in the school reform effort in Chicago, see Handler 1996.

48. This new finance system has three basic components: (1) a "foundation plan," with a required local tax rate and state aid to close any gap between the base amount of required per- pupil revenues and local yield; (2) a "wealth equalized" component (tier 1) that allows each




reflected common school values in two ways. First, SEEK's operation has reflected the idea that "a rising tide lifts all boats." All districts in the state have received significant increases in revenues per pupil. Second, and more

important, a central feature of SEEK is that although it allows "local lee-

way" for a few wealthier districts to spend more than others, it ties the

degree of this local leeway to a common base amount. Thus, all districts have a material interest in the absolute level of the common base. Under

SEEK, there has been an infusion of funds from both the state and local levels and a narrowing of the gap between rich and poor districts (Augen- blick Interview; Willis Interview).49

The reformers themselves are entirely satisfied with the financial im-

pact of KERA. Asked whether he and his colleagues were troubled by any features of the new finance system, Ker Alexander responded, "Our recom- mendation was more stringent than KERA. In KERA, the districts are virtu-

ally all equalized, but not completely. There is a small tier that isn't

[equalized]. So we got about 90% of what we were looking for in a finance

system" (Alexander Interview). Similarly, Jack Moreland, the president of the Council for Better Education and the superintendent of schools in a

relatively poor district, stated that his group is very happy with the new finance system. In Moreland's district, "where poor white children from

public housing and modest cottages make up most of the student population

district the option of increasing revenues per pupil up to 15% higher than the base. For this component, the state provides aid so that each district can act as if its own tax base were 150% of the state average tax base. Finally, (3) a local district may levy taxes on its own base, without any help from the state, so as to generate revenues per pupil exceeding the base amount plus tier 1 by no more than 30%. Thus, 30% higher than the base plus tier 1 constitutes a maximum cap on local leeway (House Bill 940, 1990, § 93-115; Steffy 1993; Adams 1993b; Kentucky Legislative Research Commission 1994).

49. A note on the financial impact of KERA (SEEK): Between 1989/90, the last year before KERA, and 1995/96, total state and local spending for education increased from just over $2 billion to $3.1 billion, or over 50%. Over this same period, out of a total increase in state and local revenues of $1.143 billion, increased state aid represented $767.3 million, and increased local revenues accounted for $375.9 million. Total state aid increased by 49.1%, while local effort increased by 84.6%. Between 1989/90 and 1994/95, average state and local revenues per pupil rose from $3,049 to $4,628. When federal aid is included, average per-pupil revenues rose from $3,410 to $5,154 (Kentucky Legislative Research Commission 1996, 98, 100-102; Goetz and Debertin 1994). Also, the gap between the highest-spending districts and the lowest-spending districts narrowed considerably. The Office of Educational Accountabil- ity (set up under KERA and located within the Legislative Research Commission) presents data on relative inequality by "wealth quintiles." The quintiles divide the state's districts into five groups, with each containing roughly 20% of the state's students (not districts), ranked from poorest (group 1) to richest (group 5) in terms of local property wealth per pupil. The average total state and local revenue per pupil among the districts in the lowest-wealth quintile rose from $2,590 in 1989/90, to $4,563 in 1994/95. Over the same period, the average total state and local revenue per pupil in the highest-wealth quintile rose from $4,376 to $5,363. By 1994/95, then, the lowest-wealth districts were beyond the point where the highest-wealth districts had been in 1989/90. Finally, taking all expenditures into account, Ken- tucky's national rank in average per-pupil expenditures has gone from 41st in 1989/90 to 21st in 1994/95 (Legislative Research Commission 1996, 99; Kentucky Department of Education 1995; Goetz and Debertin 1994; Reed 1998; Hunter 1999).




and 70 percent of the students are eligible for school lunches," total state and local revenues increased from $2.9 million in 1989/90, to $4.6 million in 1993/94. For this district, the new money meant new computer equipment and two new preschools, among other things (Moreland Inter- view; Applebaum 1996).50

Since the passage of KERA, there has been much political conflict in Kentucky over the law's curricular reforms, "outcome-based education," and to a lesser extent, changes in school governance structures. As implementation proceeded, curriculum and assessment issues become increasingly controversial (Sexton Interview; Adams-Rogers Interview; Harp 1994). This is not at all surprising. The proponents of these reforms embarked upon a quest for a political "consensus" mirroring the "common" civic and intellectual aims posited by the new common school itself, but of course, they could not achieve it. Indeed, with respect to the content of what is taught and how learning is conceptualized, reformers won their momentary consensus in part through the use of general common school rhetoric that left con- crete meanings to be worked out on the ground in the future.

Nevertheless, the common school vision, pursued through both law and politics, mobilized attention to education and structured a situation in which actors struggled over some issues, like curriculum and evaluation, and not others, like school finance policy. Reformers' common school vision framed the politics of school reform in Kentucky and brought about sweeping policy changes that few would have thought possible, given the degree of hostility toward government and taxation in the state's political culture.

A Success Story?

The Kentucky reform effort, then, is indeed a success story. The criteria for success in this account are fairly straightforward. In this case, legal and political mobilization were mutually reinforcing, converging toward a particular vision of educational reform. This effort shaped the terms of public debate and set the state's political agenda. It produced legal victories transforming state constitutional doctrine. In turn, legal and political mobilization and court victories combined to bring about various policy changes under the umbrella of KERA. And, finally, among these policy reforms was

50. After only a year or two of operation, other district-level personnel expressed satis- faction about the infusion of new resources. In Powell County, a district "on the Western edge of Appalachia," a local tax increase brought about an additional $1.3 million increase in state aid. "A year after [KERA], many students in Powell County are finishing their first year in a school with a librarian, counselor, full-time art classes, aides assigned to assist potential drop- outs, and watertight roofs-all luxuries for a county where property taxes generate just $116,000 per year" (Harp 1991). In Rockcastle County, another poor district in Appalachia, per-pupil spending rose from $2,836 in 1989/90, to $3,737 in 1991/92. Local administrators told a reporter that they "felt like tycoons" (Stanfield 1991).




a new school finance system that has increased the absolute level of resources for education and significantly reduced the degree of relative resource inequality across school districts.

One might object that this picture of "success" is radically incom-

plete.51 One might make two sorts of claims along these lines. First, as any of the reformers studied in this article would readily agree, the ultimate goal of an education reform effort is to change consciousness, behaviors, and routine practices at the school district, school, and classroom levels. If these

changes are of the right sort, then they should produce better educational

experiences and outcomes. Both steps in this chain are problematic and would need to be carefully investigated before we could make an unequivo- cal claim for "success." We have good reason to suspect that changes in

practices closer to the ground are likely to be uneven and incomplete at best. And, even if achieved, these changes may or may not in fact produce "better educational experiences and outcomes" for children.52 Finally, with the kind of sweeping law-driven policy reform that occurred in Kentucky, reform may be "merely symbolic," all "myth and ceremony" that comforts the comfortable but leaves things unchanged for the less privileged (see Handler 1996). Second, assuming for the sake of argument that KERA produced changes in practices and that these changes led to different outcomes, there would still be the normative question whether this particular vision of education reform is a worthy or attractive one. For example, one might rea-

sonably wonder whether the Kentucky educational system is really more

"egalitarian" or "democratic" or in any way responsive to the interests of the

have-nots, as opposed to simply being a more "rationalized" mechanism for

securing the interests of elites. Aside from a brief review of KERA's financial impact, my account of

the Kentucky conflict has not sought to address either of these kinds of issues. The Kentucky reform measure is multifaceted and complex. It in-

51. I thank the anonymous reviewers for Law and Social Inquiry for their thoughtful comments on this point. As Michael McCann has noted, there are many valid ways to concep- tualize "effects," and assessing the "success" or "failure" of legal mobilization "is always a very complex matter" (McCann 1998, 326; see also Handler 1978, 35-36, 191-92). A fully devel-

oped argument for "success" must specify the relevant criteria, provide measures and evidence for outcomes, and defend the claim that a causal connection exists between the reform effort or court decision and the purported "effects." I have sought to make such a case for success (as defined in the preceding paragraph) through a detailed narrative account.

52. Here, we would have to specify and defend the relevant criteria and measures for

improved educational experiences and outcomes. Most analyses focus on "student achievement" measured in various ways, most commonly by standardized achievement tests. There are many other "outcome measures" as well. But, as Martha Minow has pointed out, "schools are not just means to ends, but places where great numbers of people spend their days." Mi- now also suggests that the systemic features of a public school system (including the absolute level and relative distribution of resources) may well shape understandings among historically disadvantaged groups about how dominant groups or society in general views them. Thus, easily measurable outcomes are but one indicator of whether "real reform" has taken place (Minow 1991, 399).




cludes elements of centralization (e.g., curricular reforms, testing, and accountability) and decentralization (e.g., school-site councils composed of

parents, teachers, and administrators). It was brought about by "outside, bottom-up" pressures, but many of its reforms were imposed on schools from the "top down." It contained a host of educational policy components, and one might carefully study the design, implementation, and consequences of any one of these. A review of the research on KERA's implementation, I think, shows, among other things, significantly changed teaching practices, functioning local school site councils, significant improvements in the provision of various social services and supplemental educational programs (e.g., preschool for 16,000 "at risk" children), and modest gains in student achievement.53 In any event, what was achieved should be evaluated against what was possible in the first place. With respect to financial impact at least, we can confidently conclude that the Kentucky effort succeeded beyond all reasonable expectations.54 The body of research on Kentucky does not systematically address broader normative political questions about "democratization" or "citizen empowerment."55 Nothing in my account pur- ports to speak to such ultimate normative issues, one way or the other.

But my central point in this article need not turn on these difficult normative and empirical questions about success and failure, provided that the reader is willing to grant that the Kentucky project succeeded in at least some important ways. My central point is about modifying our conceptual- izations of "legal mobilization" itself so as to include a more detailed focus on the complex mix of reformer ideologies, legal translation, and the ideological as well as strategic interaction between legal and political components of reform projects. The conclusion now turs to these themes.

53. The Kentucky Institute for Education Research, based in Frankfort, publishes annual reviews collecting work on KERA. Another good source using multiple indicators and a wealth of data on education reform is the Education Week/Pew Charitable Trusts annual report, Quality Counts. These reports contain composite measures under the categories standards and assessment, quality of teaching, school climate, resources, and student achievement. Kentucky compares favorably to other states on most measures (see Quality Counts 1997, 1999). The statistic on the number of "at risk" children now participating in preschool programs is from Quality Counts (1999, 147, 193). A useful, brief review of the literature on the implementation of KERA can be found in Hunter 1999.

54. Doug Reed's research on the financial impact of school finance decisions in eight states (five favorable decisions: Connecticut, Kentucky, New Jersey, Tennessee, and Texas; and three unfavorable decisions: Illinois, North Carolina, and Oklahoma) shows that the results in Kentucky compare quite favorably with other states, both in terms of changes in the absolute level of resources and resource inequality (Reed 1998).

55. For an instructive discussion of these issues in the context of school reform in Chi- cago, see Handler 1996.




IV. CONCLUSIONS

What lessons can we draw from this case study? What does it tell us about legal mobilization, its relationship to reform politics, and how we

study this topic?

Legal and Political Mobilization

Above, I suggested that legal mobilization perspectives could be more attentive to certain details of legal and political mobilization, especially le-

gal translation and the degree of coherence or fit between the legal and

political components of a reform effort. A constitutive view of law, it seems to me, means that we must examine more closely the ideological content of what would-be reformers say and do in the "law space," as well as its political significance, both within reform groups and in broader political contexts.

In the Kentucky reform project, litigation began with a few individuals who made use of a leading school finance case from another state. To their

credit, they understood that flesh-and-blood clients (officials representing local school districts) and political support would be crucial ingredients of

success, even in court. Perhaps because he had been a successful politician, Mr. Combs knew that initiating reform litigation is a little like engaging in civil disobedience. It should be, and should be widely perceived to be, a

well-justified last resort. With respect to legal translation, the case began as a "Serrano suit"

focused on relative tax capacity and educational expenditures but was trans- formed into an "adequacy" suit. The law review literature on school finance

litigation makes much of the distinction between "equity" and "adequacy" framing in school finance cases (e.g., Clune 1992; Underwood 1995). But the important "translation" point-one that only a mobilization approach can comprehend-is that reformers elaborated upon and rendered "ade-

quacy" in terms of the rhetoric and modem policy frame of the common school. This common school frame structured the Council for Better Educa- tion's arguments about legal meaning, its presentation of evidence, and its

public rhetoric. Perhaps the most significant manifestation of common school ideology within the litigation was the Council's anti-Robin Hood

stance, a stance perfectly consistent with the common school vision itself. Leaders of the Council not only voiced this position in court and in public; they also acted on it. For example, when Mr. Guess approached every school district in the state to seek support for the legal challenge, he made the common school vision more real by acting in accordance with it.

The common school frame involves not only a certain sort of talk or rhetoric about the purposes and functions of public schools, but also a more




detailed ordering of priorities within education policy. Aside from the effort to present finance policy as a means to otherwise justified ends, the reformers' case in court was long on rhetoric and short on policy details. Given the increasingly favorable political climate as the conflict evolved, this vague- ness was a virtue.

The creation of this favorable political context depended, as it often does, on the existence of a broader political effort outside court. But I think there is much more to this story than the mere fact of political mobilization and support. The success of this effort in changing the political climate and bringing about results, I would argue, also had much to do with the high degree of coherence or fit between the legal and political components of the reform project as a whole. The legal mobilization approach allowed us to trace the convergence between the values and activities of the Council for Better Education, on one hand, and the Prichard Committee for Academic Excellence, on the other. It was the Prichard Committee that plowed the political fields and worked out the common school reform agenda in more detail. Moreover, when Prichard Committee members did the hard work of organizing town forums, developing a network of supporters in local school districts across the state, and arriving at their reform program through long hours of study and debate, they made their vision more real by practicing precisely what they were preaching about "education." After its effort to bring about reform through normal political channels failed, the Prichard Committee decided to support the Council's legal challenge to the state's school finance system. This opened up a two-way street between political advocacy and litigation, with the common school frame increasingly ani- mating both prongs of the reform effort.

The claim here is that there was something important or causally significant about the fact that "everything was working in one direction," both strategically and ideologically, from reformers' side of things. Admittedly, in this article I have not been all that specific about this concept of "coherence" or all that precise about how and why it might be related to overall success or failure. Rather, this claim about "coherence"-based as it is on one case of fairly moderate reform marked by a number of context-specific idiosyncrasies-is offered as tentative and suggestive.

It seems that coherence might work in two general ways to counter the futility or counterproductivity that often comes with left-liberal reformers' reliance on law and courts.

One kind of proposition linking coherence to overall success would focus on reform organizations themselves. Coherence between the legal and political prongs of an effort would play a role in motivating group members, mobilizing constituents, and "disciplining" the thinking and activities of participating lawyers. Just these kinds of connections are explored and documented in McCann's Rights at Work (1994). McCann investigates not only




the strategic interaction of law and politics, but also the "meaningfulness" or "resonance" of the content of antidiscrimination rights claims for unions and individual women in the workplace. Rights discourse, he shows, provided "a compelling normative language" for union members, activists, and

attorneys engaged in pay equity struggles (1994, 48, 60-61). The line of

causality here retains Scheingold's emphasis on the primacy of politics, but it adds a valuable focus on the ideological content of legal claims and what

they mean in and for social movement or reform organizations. The case

study presented above both supports the importance of this sort of inquiry and calls our attention to the possibility of positive "reconceptualizations" of legal meaning within litigation and in judicial responses.56

But another kind of proposition potentially linking coherence to overall success has, I think, received scant attention. This proposition concerns the projection and reception of litigation-involved reform efforts in broader

political contexts. As noted above, the "counterproductivity" problem in reform litigation is really a web of interrelated problems. It is reasonable to think that what we usually view as difficulties inherent in the institutional characteristics of courts (legitimacy and capacity) are related to the common perception among other public officials and interested citizens that reformers are cynically appealing to courts as an end run around democratic

politics. A focus on "coherence" as I have described it in the Kentucky case

calls for a researcher's observations and judgments not only about reformers'

"extrajudicial strategies and tactics," but also about the content of their ar-

guments and the "quality" of their practices and actions, in different kinds of institutional settings. Indeed, many of the dilemmas of legal mobilization arise from the disjunctions and tensions between courts and other differ-

ently constituted institutional channels for politics. When the legal and political components of a reform project fit together or cohere well, and when rhetoric is backed by consistent action along both dimensions, then perhaps reformers are more likely to demonstrate their good faith about democratic

politics as well as their deep commitment to the vision they seek to have embodied in law. At least in the Kentucky case, it seems, just this sort of

"good faith" and "commitment" had persuasive power in politics.57

56. For McCann, the resonance of legal claims and arguments for would-be reformers is

closely tied to his endorsement of legal pluralism and the notion that legal norms and con-

cepts can be given new meanings in contexts outside official state forums. As noted above, for

McCann, the malleability of legal arguments and the complex ways such arguments can be constructed out of and linked up to political struggles-the "opportunity" side of the tension between opportunity and constraint in legal discourse-tends to be associated with nonstate actors in nonstate sites.

57. In this paragraph, I have borrowed some language from Robert Cover's "Nomos and Narrative" essay, although my subject is at best only a distant cousin of his discussions of

"jurisgenesis," and of "commitment" as a constitutive element of the creation of legal mean-

ings outside official state institutions. But then again, perhaps we do not have to be at margins of state law or at the brink of a violent clash between the state and insular or redemptive




If these suggestions are plausible, then future research might pay more detailed and precise attention to "legal translation" and "coherence" in order to examine the meaning of these dimensions of reform activity in other contexts, and to explore their relationship to "success."

Nothing in this discussion so far speaks to the issue of reformers' consciousness about these matters, or to the question whether and in what sense they "made choices" about them. In the Kentucky case, two separate groups worked for a time on independent projects. Even after they formed an alliance in 1987, it seems that more was done through intuitions and

practical judgments about what would work, and much less through overall

planning or conscious design, than one might gather from my constructed narrative account of these events.

In any event, this question of reformers' consciousness about legal translation and coherence is related to the notion of law's "constitutive"

capacity and to the broader tension between opportunity and constraint in how legal mobilization approaches view law. In Rights at Work, for example, McCann notes that a central task of his approach is "to analyze the constitutive role of legal rights both as a strategic resource and as a constraint for collective efforts to transform relationships among social groups" (1994, 7). A few pages later, he states:

the pluralistic character of law provides reform activists with some measure of choice regarding both the institutional sites and substantive legal resources that might be mobilized to fight policy battles and ad- vance movement goals. This by no means is intended to refute the general thrust of critics who emphasize the conservative character of institutionalized legal practices in most official state forums. Indeed, legal mobilization theory is rooted in the assumption that law is a primary medium of social control and domination. (1994, 9)

Whether this "assumption that law is a primary medium of social control and domination" is warranted or not, the case study presented above suggests that (1) we can be more precise and detailed about legal translation and its articulation with a broader political project, and (2) in many contexts, a fairly wide range of options may exist for talking one way rather than another through "institutionalized legal practices in ... official state forums," whether reformers self-consciously make choices about translation and coherence or not. Uncovering reformers' consciousness and whether they actually make choices about legal translation and coherence should be a task of this kind of research.58

communities in order to recognize the potential role of "commitments" of a different sort in the creation of legal meaning and the transformation of law and policy (Cover 1983).

58. McCann also distinguishes between "intrinsic" and "extrinsic" constraints (1994, 305). Put in these terms, the point I would like to make is not there are always a wide range of




Further, the Kentucky case suggest that something important is indeed at stake in the current notion that "law" is potentially "constitutive," however elusive this notion seems to be. We saw that the language and terms used in the legal arena did become the language of politics, especially after the courts rendered their decisions. Throughout, legal claims and aspira- tional rhetoric shaped the terms of debate and helped to structure the organization of politics. But it should be emphasized that what counted as "law" and "legal discourse" was quite fluid and that the "creation" of legal meaning was always bound up with strategic ("instrumental") concerns and actions. The source of legal meaning here was not so much congealed norms and values encoded in law and given from the past. Rather, it seems that

"meaning-making" had more to do with action in politics guided by a particular ideological vision of education reform and the use of law and courts as part of this broader project.

Courts As Institutions

Above, I suggested that interpretive studies of legal mobilization might better incorporate insights from historical-institutionalist work on judicial decision making, including careful attention to the historical, political-institutional settings in which courts do their work and to the content of

judicial opinions. What role did courts as institutions play in the Kentucky reform conflict? First, I contend that success in court was a necessary but

probably not sufficient condition for the overall success of this project. The courts constituted the primary official "institutional space" within which reformers' vision could be heard, reworked, and amplified. The courts were the place where the broad and broadly rhetorical moral argument could be made and projected into politics (Mather 1995). Thus, the courts played an

independent, positive role in this conflict. Second, although my account does not allow me to say much about the motivations of judges, I can say that any strategic calculations they might have made about potential resistance to judicial intervention (assuming that such calculations could figure into judicial decision making) would have been unlikely to deter them in this case. By the time the courts reached their decision points, reformers had generated a good deal of political support among citizens and other interest groups. Thus, as time went on, judges inclined to think in strategic terms would have had less and less to fear in terms of opposition from other institutions or citizens. Third, the rhetoric of judicial opinions (and not just the decisions or results) mattered a lot in their own right. The evidence for

options for legal translation within litigation and courts, but only that there may be in some situations. If this is so, then a focus on legal translation, with its requirement of a more careful and disciplined treatment of legal materials, provides a way to gain more insight into intrinsic opportunities and constraints than we find in recent "decentered" perspectives.




this last claim is simply the use of the courts' rhetoric by others in public debates and in the legislative process. The case is, I admit, a circumstantial one.

These observations point toward the need to bridge legal mobilization perspectives with recent historical-institutionalist work focused (mainly) on appellate courts (e.g., Gillman 1993; Clayton and Gillman 1999). They also suggest a linkage with a different, "realist-informed" strand of research in political science on courts and public policy (e.g., Horowitz 1977; Melnick 1983, 1994; Rabkin 1989). This second strand of work addresses policy implementation and impact through careful case studies. It tends to be skeptical about both the democratic legitimacy of judicial intervention and the technical capacity of courts in social policy conflicts. The suggestion here is simply that "decentered" legal mobilization perspectives might benefit from some "recentering" on courts. This recentering would focus especially on the content and character of judicial arguments and rhetoric, as in historical-institutionalist research, and include close descriptions of policy processes, as in realist-informed work on courts and public policy. This sort of recentering would facilitate explorations of the linkage between legal and political mobilization, on one hand, and the role that courts can and cannot play in reform conflicts, on the other. What is noteworthy about the Ken- tucky case is that reformers' broader political activities meant that the courts never had to take any sort of remedial plunge. To its credit, the Ken- tucky Supreme Court realized that the time was right for a bold stroke and broad rhetorical argument (something courts can sometimes do well), combined with a "nonremedy" that would leave it to others to do the legislating and implementing (things courts seldom do well). The Kentucky case is one in which bold judicial intervention had a salutary effect, but the result depended upon reformers' sustained and ideologically coherent effort to mobilize political support and the supreme court's own sophisticated sense of its limits and the need, in an odd way, to defer to legislative authority.

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CASES

Armstrong v. Collins, 709 S.W.2d 437 (1986). Brown v. Barkley, 628 S.W.2d 616 (1982). Brown v. Board of Education, 347 U.S. 483 (1989). Commonwealth v. Griffen,105 S.W.2d 1063 (1930). Council for Better Education, et al. v. Martha Layne Collins, Civil Action No. 85-C1-1759

(1985), Commonwealth of Kentucky, Franklin Circuit Court. Complaint (copy on file with author).

Council for Better Education, et al. v. Wallace Wilkinson, Governor, et al., Civil Action No. 85-CI-1759 (1988), Franklin Circuit Court, Division I. Findings of Fact, Con- clusions of Law, and Judgment (Judge Ray Corns) (unpublished opinions; copies on file with author).

Elliott v. Garner, 130 S.W. 998 (1910). Legislative Research Commission v. Brown, 664 S.W.2d 907 (1984). Prouse v. Board of Education, 120 S.W. 307 (1909). Rose v. Council for Better Education, 790 S.W.2d 186 (1989). Rose v. Council for Better Education, Inc., Case No. 88-SC-804-TG (1988), Supreme

Court of Kentucky. Briefs for Appellants and Appellees (copies on file with author).




Russman v. Luckett, 391 S.W.2d 694 (1965). San Antonio v. Rodriguez, 411 U.S. 1 (1973). Serrano v. Priest, 487 P.2d 1241 (1971). Trustees of Graded Free Common Schools v. Trustees of Graded Free White Common Schools,

203 S.W. 520 (1918). Wooley v. Spalding, 295 S.W.2d 563 (1956).

LOCAL NEWSPAPER ARTICLES CITED (listed in chronological order)

Louisville Courier-Journal. May 27, 1980, p. 1, Group Asks What the Future Holds for Education.

Louisville Courier-Journal. June 6, 1982. Education Panel Intends To Keep Going. Lexington Herald-Leader. June 8, 1982. Building from the Blueprint: Watching out for

Excellence (Editorial). Lexington Herald-Leader. September 8, 1983. Prichard Committee changing Its Focus.

Lexington Herald-Leader. January 4, 1984. Laying the Foundation for Education Reform (Editorial).

Louisville Courier-Journal. July 10, 1984. Prichard Panel Lists Preliminary Proposals for Reforming Schools, p. 1.

Lexington Herald-Leader. September 19, 1984. Collins Endorses Education Forums. Louisville Courier Journal. November 11, 1984. Forums' Planners Want Mass Movement

for Better Schools. Louisville Courier-Journal. November 17, 1984. Educational Forums Are Considered

Successful. Louisville Times. December 4, 1984. Chance that School Leaders Will File Equity Suit

Increases, A5. Louisville Courier-Journal. January 19, 1986. Combs Calls School Finance Suit the Best

Way to Settle Issue, B8. Louisville Courier-Journal. December 12, 1987. Legislators Intensify Sparring with Wil-

kinson, B1. Louisville Courier-Journal. January 30, 1988. Wilkinson's Opposition Means Chances for

New Taxes Almost Nil, Lawmakers Say, 7B. Louisville Courier-Journal. February 5, 1988. Unveiling of Wilkinson's Education Plan

Delayed, B5. Louisville Courier-Journal. March 12, 1988. Budget Bill Snags on Conflict among Com-

mittee Members, 1A. Louisville Courier-Journal, June 1, 1988. School-Finance System Struck Down, Opening

Way for Vast Changes, Al. Louisville Courier-Journal. June 3, 1988. Legislators Will Appeal School-Finance Court

Ruling, Al. Louisville Courier-Journal. June 3, 1988. Metro-area Districts Reflect Kentucky's Have,

Have-Not System, Al. Louisville Courier-Journal. June 7, 1988. Alexander to Lead Panel of Financing for

Schools, B1. Lexington Herald-Leader, June 25, 1988. Legislators to Boycott Judge's Committee, Al.

Lexington Herald-Leader. June 4, 1988. Wilkinson Lauds Ruling on Funding Schools.

Lexington Herald-Leader. June 27, 1988.Wilkinson Says Lawmakers Critical of School

Ruling Have Wrong Attitude.




Louisville Courier-Journal, October 15, 1988. Judge Orders State to Find More Money for Schools, Al.

Lexington Herald-Leader. October 15, 1988. Judge Orders Boost in School Funding, Al. Louisville Courier-Journal, January 14, 1989. Wilkinson Announces Warren Plant, Baits

Education Foes, 1A. Louisville Courier-Journal. February 8, 1989. Wilkinson Meets With Educators, Says He's

Open to Their Ideas. Louisville Courier-Journal. February 25, 1989. Tax Increase for Education Lacks Support,

Governor Says, 1A. Louisville Courier-Journal. May 4, 1989. Governor to Take His Time with Review of

Education Package from Democrats, 3B. Louisville Courier-Journal. May 17, 1989. School Coalition Still Seeks Comprehensive

Legislation, 1B. Louisville Courier-Journal. May 26, 1989. Governor Expands on School Plan, But Not on

Paying for It, 1A. New York Times. June 9, 1989. Kentucky High Court Says State Must Redesign Its

School System, A17 (AP Wire Service). Louisville Courier-Journal. June 9, 1989. News, 1A. Louisville Courier-Journal. August 6, 1989. Most Say They'd Support Higher Taxes for

Schools, Al. Louisville Courier-Journal, February 4, 1990. Bluegrass State Poll: Public Ranks School

Reform As Top Issue.

INTERVIEWS

Adams-Rodgers, Lois. 18 July 1996. Ms. Adams-Rogers is deputy commissioner, Ken- tucky Department of Education. In the past, she has served as chief of staff to Thomas Boysen, commissioner of education, and as the superintendent of schools in Jessamine County, Kentucky.

Alexander, Kern. 2 June 1995 and 22 June 1995. Mr. Alexander is currently president of Murray State University. He was professor of education at the University of Florida from 1968 through 1985. Mr. Alexander served as the Council for Better Educa- tion's main expert consultant and witness.

Augenblick, John. 16 May 1995. Mr. Augenblick is currently a partner in the consulting firm of Augenblick, Van De Water, and Myers. Between 1976 and 1983, Augen- blick worked with the Education Commission of the States. In 1989, he was retained as the policy consultant to the Kentucky Task Force on Education Reform's Committee on School Finance.

Dawahare, Debra. 15 March 1995. Ms. Dawahare is currently a partner in the law firm of Wyatt, Tarrant, and Combs, Lexington and Louisville, Kentucky. As an associate in the firm, she served as counsel for the Council for Better Education.

Guess. Arnold. 7 August 1995. Mr. Guess was the director of the Bureau of Administra- tion and Finance, Kentucky Department of Education. Over a long career in public education, he worked at various jobs at both local and state levels. He was the main organizer of the group that became the Council for Better Education.

Hawpe, David. 19 July 1996. Mr. Hawpe is editor and vice-president of the Courier- Journal, Louisville, Kentucky.

Heine, Cindy. 7 June 1996. Ms. Heine is the deputy executive director of the Prichard Committee for Academic Excellence, Lexington, Kentucky. She began working with the Prichard Committee as a volunteer. She was the Fayette County organizer




for the committee's statewide town forum in November 1984, and between 1983 and 1985, she served on its subcommittee on children and youth services.

Lavit, Ted. 30 March 1995. A solo practitioner and self-described "country lawyer" based in Lebanon, Kentucky, Mr. Lavit helped organize and served as counsel to the Council for Better Education.

Moloney, Michael. 12 July 1995. Mr. Moloney served in the state Senate between 1971 and 1996. From 1980 on, he was chair of the Senate's Appropriations and Revenue Committee. In 1989-90, Mr. Moloney was co-chair of the Task Force on Education Reform's Committee on School Finance.

Moreland, Jack. 19 June 1995. Mr. Moreland is superintendent of schools, Dayton Inde- pendent School District (Campbell County, Kentucky). For most of the school finance conflict, Mr. Moreland was president of the Council for Better Education.

Newman, Frank. 16 June 1995. Mr. Newman is president of the Education Commission of the States. In 1989-90, Mr. Newman served as a consultant to Kentucky legislators and chaired planning meetings to establish the Task Force on Education Reform.

Sexton, Robert. 7 June 1995, 14 June 1995, and 7 June 1996. Mr. Sexton is executive director of the Prichard Committee for Academic Excellence, Lexington, Kentucky.

Willis, Tom. 26 June 1995. Mr. Willis is associate commissioner for District Support Services, Kentucky Department of Education. Between 1986 and 1994, he was the assistant director of the Kentucky Legislative Research Commission. Mr. Willis was the central local advisor to legislative leaders on school finance issues.



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