to local school districts to set local school tax rates may or may not work an
improvement. Either way, certainly, it is beyond the scope of the relief sought by the
appellees. It is the last thing they would want done, as they have said in no
uncertain terms. Yet it is the only thing of a judicial nature that we have decided in
our Majority Opinion, and it is beyond the parameters of this lawsuit. [FN2]
[FN2. The Response to the Petition for Rehearing filed by the appellee,
Council for Better Education, requests us to add this clarification to the
Majority Opinion: "The record in this case clearly shows that no school
district in Kentucky is overfunded. No district is funded to the level of
the National average. Therefore, to take money from one district and
give it to another would be a step toward a mediocre system
statewide. This would violate Section 183 of the constitution and would
not be approved by this Court." Perhaps, since we are prepared to
enter the political arena, we should be prepared to go this extra mile.]
We were only asked to decide one issue in this lawsuit: whether the General
Assembly has responded adequately to its constitutional responsibility. This is a
political question, pure and simple. We have undertaken to "enter upon policy
determinations for which judicially manageable standards are lacking." Baker v. Carr,
supra, 369 U.S. at 226, 82 S.Ct. at 715. Without such standards, a case is not
justiciable. It is not enough to decide that Kentucky does not have an "efficient
system of common schools throughout the State," as Section 183 of the Constitution
requires, without specifying what statutes are unconstitutional, and why. Yet, the
former is not asked, and the latter is not possible. I repeat, this case is not
justiciable.
II. THE PROBLEMS RELATED TO THE PARTIES
Essentially, the plaintiffs comprise two groups, one consisting of sixty-six local school
districts represented through the Council for Better Education plus seven more
school districts specifically named, and a second consisting of twenty-two public
school students suing as individuals.
Turning first to the school districts, it should be obvious from a legal standpoint that
these school districts have no authority to sue the General Assembly, their creator,
over the circumstances of their existence. As stated in Board of Ed. of Louisville v.
Board of Ed. of Jefferson County, Ky., 458 S.W.2d 6, 8-9, (1970), quoted but
disregarded in the Majority Opinion: "Certainly there are no constitutional guarantees
that local school districts, which are purely creatures of the legislature in their
creation and alteration, must be regarded by the legislature as autonomous fiefdoms
for all purposes, particularly in face of the plenary power vested in the legislature by
section 183 of the Constitution of Kentucky as regards the common schools of the
state. Id. at 8.
This would seem to be conclusive of the matter. But if a case factually to the point is
needed, East Jackson Public Schools v. State, 133 Mich.App. 132, 348 N.W.2d 303
(1984), should be persuasive. In a suit seeking to declare Michigan's school financing
unconstitutional because it produced unequal per student funding between districts,
the Michigan court held, inter alia, that the school districts did not have standing "to
defy their creator over the terms of their existence... [o]r to expend public funds to
finance such litigation." 348 N.W.2d at 306. We should hold the same. Cases from
other jurisdictions cited to the contrary, and footnoted in our Majority Opinion, are
without exception fundamentally unsound as judicial precedents because they fail to
address this question. They also fail to deal with the inherent limitations upon the
scope of judicial activity and the constitutional limitations mandated by the doctrine
of separation of powers.
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