districts are creatures of the state, and that when the issue of "appropriate
legislation" is in contention, the state's decision is final, unless violative of another
section of the constitution. The decision does not touch the issue of whether the
state has provided an efficient system, and it certainly does not declare either
directly or inferentially that a local school board cannot sue the state. Furthermore,
appellants ignore the specific grant of power to local school boards to "sue or be
sued" and to do all things necessary to carry out the duties of the local school
boards.
In Hogan v. Glasscock, Ky., 324 S.W.2d 815 (1959) we held that a local school
board had the power to hire an attorney when such employment was necessary for
their protection and the accomplishment of the purposes for which they were
created. The attorneys were employed by the local board to defend an attack on the
board members' method of providing public education. This case clearly reinforces
the statutory duty of local school boards to promote local education and to defend
lawsuits challenging their action, and to do all things which are necessary in the
opinion of the local board to promote public education. KRS 160.160, 160.290(1).
Appellants rely heavily on a case from a sister state to support their position. In East
Jackson Public Schools v. State, 133 Mich.App. 132, 348 N.W.2d 303 (1984), several
local school districts sought to overturn a legislative scheme of school financing,
claiming a violation of the equal protection clause of the Michigan constitution. The
boards did not claim to enforce any constitutional rights regarding public education.
As the Court stated, "Education is not a fundamental right under Michigan
Constitution of 1963." Id at 305. The following language seized on by appellants
addressed the school districts' power to sue. "School districts and other municipal
corporations are creatures of the state. Except as provided by their state, they have
no existence, no function, no rights, and no powers. They are given no power, nor
can any be implied, to defy their creator over the terms of their existence. They
surely have no power to bring suits of such nature on behalf of residents within their
boundaries, or to expend public funds to finance such litigation of, or on behalf of,
private citizens." Id at 306.
Although the language of this opinion is strong and unequivocal, it cites no authority
for its position, and is certainly not persuasive in the case at bar. [FN16]
[FN16. Furthermore, there is ample authority which is contrary to the
Michigan case. See Dupree v. Alma School District No. 30, 279 Ark.
340, 651 S.W.2d 90 (1983); Hornbeck v. Somerset County Board of
Education, 295 Md. 597, 458 A.2d 758 (1983); Board of Education v.
Nyquist, 57 N.Y.2d 27, 453 N.Y.S.2d 643, 439 N.E.2d 359 (1982);
Seattle School District No. 1 of King County v. State, 90 Wash.2d 476,
585 P.2d 71 (1978); Washakie County School District No. 1 v.
Herschler, 606 P.2d 310 (Wyo.1980).]
Unlike Michigan citizens, our citizens are given a fundamental right to education in
our Constitution. Ky. Const. Sec. 183. That fundamental right is reiterated and
expanded in our statutes. KRS 158.010 et seq. Moreover, our General Assembly has
given local districts a perpetual, corporate existence, and has in two statutes,
specifically given local boards virtual unlimited authority to carry out their duty of
promoting local education.
In Reeves v. Jefferson County, Ky., 245 S.W.2d 606 (1951), we declared that KRS
160.160 and KRS 160.290 "place upon the boards of education, not the taxpayers,
the initial responsibility of maintaining legal actions on behalf of the school districts."
Id. at 608. Perforce a lawsuit to declare an education system unconstitutional falls