Rose v. Council for Better Education, Inc.

*220 VANCE, Justice,

dissenting.

I respectfully dissent. I believe the majority opinion is inherently inconsistent in that it says that our system of common schools, to be constitutionally efficient, must provide substantially equal educational opportunity for children throughout the Commonwealth, yet it actually permits the continuation of a system which does not provide substantially equal educational opportunity.

I believe this is so because the opinion expressly holds that individual school districts may continue to levy taxes for school purposes to be used solely within the district. 1 primarily, it is the levy of these taxes by local school districts, which produces greatly disparate revenues in richer counties than in poorer ones, that has caused the great disparity in school funding per child in the various districts throughout the Commonwealth.

Although there are factors other than the amount of money available per child that must be considered when determining the equality of educational opportunity, I submit that this whole case is predicated upon the proposition that children who reside in districts where the amount of funding available per child is disproportionately less than is available in other districts will be denied an educational opportunity which is equal to the educational opportunity afforded in districts with vastly greater resources.

Because the value of taxable property is so much greater in some districts than others, the continued levy of school taxes for use within individual districts, even if levied at a uniform rate throughout the state and property is assessed at 100 percent of its value, will continue to produce much more revenue in richer counties than in poorer ones. It follows that the continuation of such a tax policy will leave us exactly where we are now, and the school system will not provide substantially equal educational opportunity throughout the Commonwealth, but will in fact, result in better educational opportunity for those who reside in the wealthier sections of the state.

The majority seems to envision that the General Assembly can provide a dually funded educational system, one to be funded by the state which will be applied uniformly throughout the state, the second to be funded locally wherein there is no limit to the amount which local districts can enhance the funding in their district above the level of funding provided by the state. This overlooks the fact that the majority has defined an “efficient” common school system as one which uniformly provides an equal educational opportunity throughout the state. As the majority opinion states, “The children of the poor and the children of the rich, the children who live in the poorer districts and the children who reside in the rich districts must be given the same access to an adequate education.” A school system provided by the General Assembly which is funded partially by the state and supplemented by local districts to the extent that it results in any significant difference in funding per child in the richer and poorer districts will not be constitutionally “efficient” under the definition of the term as set forth in the majority opinion.

Although the constitution requires the General Assembly to provide, through appropriate legislation, for an “efficient” system of common schools throughout the Commonwealth, the debates of the delegates to the Constitutional Convention shed very little light upon what the delegates had in mind by the use of the word “efficient.” None of the delegates debated the meaning of the word efficient in the sense that it was used.

There was a general agreement among the delegates that common school education should be a state rather than a local *221 responsibility. There was much discussion concerning the advantages to children of a common school education and the advantage to the state of having an educated populace.

The primary thrust of the debate went to the equality of educational opportunity; that a system of common schools throughout the state should provide alike for the sons of the poor and the sons of the rich; and provide alike for the children who reside in rural areas as well as for those who reside in centers of population. There was much concern that if education in the common schools throughout the state were not made a constitutional responsibility of the Commonwealth, it would simply become or remain a local matter, and the children of the wealthy and those who reside in the cities would be afforded greater educational opportunity than the children of the poor and those who reside in rural areas. The primary concern was that the opportunity be equal for all children throughout the Commonwealth.

It is because of this universal concern expressed by the delegates to the convention that I conclude that the word “efficient” as used by them must include not only its dictionary definition but must also be construed to include the requirement of substantial equality of educational opportunity.

I do not concur with the majority that the present system of common schools has, on the basis of the record before us, been shown to be constitutionally under-funded or inadequate.

While there is a constitutional requirement, I think, as to equality of educational opportunity, I can find no such requirement as to the level of funding. In a sense, of course, any system so inadequately funded that any money put into it is simply a waste of resources is, of necessity, not an efficient system, and to this extent there may be said to be a constitutional mandate as to the minimum level of funding.

During the constitutional debates an amendment was offered to the committee report on education by Mr. Becker, who is quoted in the majority opinion. He offered to amend Section 1 of the committee report to require that the General Assembly provide an adequate and efficient system of common schools throughout the Commonwealth. So far as I can determine from reading the constitutional debates, Mr. Becker was the only member of the delegation who spoke in favor of this amendment. His support was hardly fervent. He simply said that in his opinion it would not be inappropriate to require the system of common schools to be “adequate” as well as “efficient.” The word “adequate” did not make it into the present constitution, however.

As was noted in the majority opinion, this court has always granted a great degree of deference to the discretion of the General Assembly in the manner of operation of the system of common schools. In City of Louisville v. Board of Education, 302 Ky. 647 , 195 S.W.2d 291 (1946) we said:

“Section 183 of the constitution is as broad as it is possible to frame an authority to the legislature to deal with the common schools in any way it should desire.”

In Elliot v. Garner, 140 Ky. 157 , 130 S.W. 997 (1910), we said:

“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.”

Section 183 of the Constitution of Kentucky leaves to the legislative discretion the best method of providing for an efficient system of common schools. Madison County Board of Education v. Smith, 250 Ky. 495 , 63 S.W.2d 620 (1933). Legislative discretion cannot be extended to such limits as to allow the legislature, in its discretion, to fail to meet its constitutional mandate, but I do not believe it is within the province of this court to interfere with legislative discretion as to the level of school funding unless it clearly appears from the record that the level of funding is so low that it cannot reasonably accomplish basic educational necessities. Not all academic failure is the result of under-funding.

*222 I cannot agree with the majority that the constitution requires the General Assembly to monitor the school system to insure that schools are operated with no waste, mismanagement, or political influence. It is not possible for the General Assembly to oversee the day-to-day operation of schools. In my view, the General Assembly has discharged its duty when it has provided by law for a school system which, if properly administered, will result in substantially equal educational opportunity throughout the Commonwealth. The administration of the school system is not a legislative responsibility, and if the system, because of waste, mismanagement, or political influence, fails in its purpose, the failure is not to be charged to the General Assembly.

Above the minimum level of funding that is constitutionally required for a system of common schools to be efficient, there is room for unlimited enhancement of educational opportunity. The range of this enhancement of educational opportunity above the minimum requirements must be left to the General Assembly. The General Assembly is the representative of the people and is the proper branch of government to determine public policy. The question of how much enhancement there should be of educational opportunity above the minimum requirements is a matter of public policy.

Whether the General Assembly will provide a system of common schools of the highest order or one which barely meets the minimum requirements is a burden which must be placed squarely upon the shoulders of the General Assembly, where the constitution places it. It does not rest with the courts, and indeed the doctrine of separation of powers prohibits judicial interference with legislative prerogative. If we do not exercise restraint in this matter, I fear that every theoretical defect in the educational system will be escalated into litigation to determine the constitutional efficiency of the system.

The system of common schools is created by many statutes, none of which have been directly attacked. Since we have not been asked to declare any statute unconstitutional, I fail to see how we can, in effect, declare them all unconstitutional.

The majority has heaped upon the General Assembly a monumental task with little guidance. It is confronted with a necessity to create a new system of common schools without being told specifically what is wrong with the old one. The majority has not declared any specific statute unconstitutional and, in effect, I think has condoned the continuation of a system which, in all likelihood, will not result in equal educational opportunity throughout the Commonwealth.

There is now imposed a requirement that the system be adequately funded, but no specific standards have been established to determine the adequacy of funding. Instead, it is held that the school system must be funded adequately so as to achieve seven goals, each of which is expressed in the most general terms. Those goals are:

“to provide each and every child with at least the seven following 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 academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.”

How will the General Assembly be able to know if the legislation it enacts will provide each and every student throughout *223 the Commonwealth with a sufficient grounding in the arts to enable that student to appreciate his cultural or historical heritage? This goal, like the other seven, is so vague that regardless of what legislation is enacted by the General Assembly the door has been opened for another group or groups of students to sue the General Assembly ad infinitum, claiming that in some respects the General Assembly has failed to provide a system of common schools which achieves the seven goals of an efficient system. I fear it will be the courts rather than the General Assembly, which will end up monitoring the common school system.

I am willing to declare, on the basis of this record, that the system of common schools throughout the state does not meet the constitutional imperative of substantially equal educational opportunity for all children. I would go no further. It is the duty of the General Assembly to abide by its constitutional responsibility, but in my opinion, because of the failure to name all of the members of the General Assembly as parties to this action, and to serve them with process or otherwise secure their appearance, we are powerless at this time and in this litigation to mandate any action on the part of the General Assembly or to place the school system in limbo absent some legislative action.

. The taxes levied by local school districts are local in the sense that they are levied upon property within the district, but this court has held on many occasions that these taxes are in fact state taxes which have been authorized by the General Assembly to fulfill the requirements of § 183 of the Kentucky Constitution. Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967); Board of Education v. City of Louisville, 288 Ky. 656, 157 S.W.2d 337 (1941); Commonwealth v. Louisville National Bank, 220 Ky. 89 , 294 S.W. 815 (1927).