Arnold Guess believed that a lawsuit could turn the Kentucky education system around, but he could not convince his bosses. "You don't sue the people you work for," says Kentucky's former associate superintendent for administration and Finance. Guess had worked for the Kentucky Department of Education for 32 years until he was fired in 1983, he explains, for backing the losing candidate for superintendent of public instruction. The dismissal freed Guess to do something about spending inequities he had seen during his career with the state.

"I just thought it was time to do something, to shake some trees," he says. He rounded up 25 school superintendents in Frankfort in 1984. By the time the suit was filed the next year, 66 school superintendents had come aboard. Lawmakers split on the issue. Guess says Kentuckians had "waited too long for the General Assembly to act." He says he was unsure from the start and surprised by the victory that his group won.

The victory came in June 1989 when the Kentucky Supreme Court declared the state's educational system and its funding system unconstitutional and scrapped it. Following the decision, Kentucky legislators undertook the most extensive revision of an education system ever done by a state. The lawsuit led to reforms aimed at closing the gap in spending between poor and rich districts and forcing educators to be more accountable for school children's progress. Jobs of superintendents, local school board members and teachers are on the line in Kentucky. They may be fired if schools deemed unsuccessful by the Kentucky State Board of Education show no sign of improvement. Much of a school's progress will be based on test scores. All the changes now taking shape in Kentucky send the message to other states that a lawsuit under a state constitution can make a difference in public education funding.

Today Illinois educators are preparing to file a similar suit. Twenty-nine districts have joined the Coalition for Educational Rights Under the Constitution, a group that has tapped a heavyweight Chicago law firm and a nationally known school finance expert to lead the battle. The results of a lawsuit are unpredictable, as witnessed in Kentucky where the courts threw out the entire education system along with the funding system that the suit challenged. Still, proponents say they are tired of waiting for the Illinois General Assembly to halt Illinois' growing funding disparity. As in Kentucky, lawsuit proponents say children in poor districts do not receive the same education as children in rich districts. Advocates think it is time to shake Illinois' tree.

G. Alan Hickrod, co-chairman of the steering committee of the Coalition for Educational Rights Under the Constitution, views Kentucky as a catalyst for Illinois litigation. He says the fact that the Kentucky lawsuit has resulted in nearly a 30 percent increase in state funding has not escaped anyone in Illinois. As in the case in Kentucky, he says Illinois litigants would argue that disparities in per pupil spending across the state lead to unequal opportunity. Hickrod predicts that argument logically winds up talking about the differences in test scores between rich and poor districts. The goal is to prove that inequitable funding does not provide an "efficient system" as guaranteed by the Illinois Constitution, he says.

Others say a lawsuit is not likely to accomplish change. James G. Ward, a University of Illinois associate professor of education administration, says that Illinois plaintiffs have one chance in 10 of winning a lawsuit in this state. He says the Kentucky case hinged on a state constitutional clause calling for an "efficient" education system that the Kentucky high court interpreted to mean an equal distribution of resources. The Illinois Constitution also calls for an "efficient" education system, but the 1970 Constitutional Convention delegates rejected language that would have required equal distribution of resources, Ward says. In almost every state (including Kentucky) where the school finance system has been overturned, education is deemed a fundamental right in the state constitution. Education is not a fundamental right in the Illinois Constitution, Ward says. Also, the Illinois Supreme Court tends to view education finance as a responsiblity of the legislature not the courts. Ward favors working through the legislature. (For a detailed discussion of the constitutional issues see the article by Mark Mathewson in Illinois Issues, May 1990, pages 14-16.)

In the legislature, Sen. Arthur Berman (D-2, Chicago), chairman of the Senate Committee on Elementary and Secondary Education, questions the success of a lawsuit, but he concedes it may be the only way to get action. Rep. Gene Hoffman (R-40. Elmhurst), chairman of the House Republican Task Force on School Aid last year, says he supports a lawsuit because it would send a potent message to the Illinois General Assembly.

In the eyes of Kentuckians, legal action sent just the right message to their General Assembly. "If the suit had not come along, there wouldn't have been any change . . .," says Kern

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Alexander, former Western Kentucky University president. Kentucky House Speaker Don Blandford contends that the legislature did act but in piecemeal measures. "I don't think it dawned on us to build a new education system," he says. "When you have something in effect for 100 years, you try to improve it."

Rural Kentucky schools outside the state's Golden Triangle of valuable property and industrial wealth — Lexington, Louisville and Covington — struggled to provide the basics. Spending per pupil ranged from $1,800 to $3,400 statewide and tended to dictate course offerings. Some schools failed to deliver even the basics — biology, advanced math and foreign languages. "It was a division between rural and urban Kentucky," former Gov. Bert Combs says of the school system.

Combs, who represented the group of school districts in the Franklin Circuit Court in 1985, argued that there was a direct relationship between levels of funding and educational opportunity. He says pupils in poorer schools were being denied their right to an "efficient" education as guaranteed by the Kentucky Constitution.

After the Kentucky Supreme Court ruling, a task force made up of legislators and state cabinet members presented its solution to Gov. Wallace Wilkinson in March, and he approved it a month later. Under the plan, the state will pour an additional $950 million into elementary and secondary public schools during the first two years of the reforms, school years 1990-91 and 1991-92. The additional funding will come from changing the state income tax to conform to the 1986 federal tax code changes, a 1 percent corporate income tax increase and a 1 cent sales tax increase.

The increase in state and local spending will push up spending per pupil in poor districts without bringing down the spending levels in rich districts. The new education system also will channel more money to schools with students "at-risk" of failure and with special education students (those who are physically handicapped, mentally retarded or emotionally disturbed). Each district will receive at least 8 percent more in 1990-91 from the state and 5 percent more in 1991-92. No district will receive more than a 25 percent increase over the two school years.

Poor districts will receive more funding through the new formula. The old funding formula failed to equalize district spending because it did not consider the individual needs of districts and because the state did not fully fund the formula, says Ron Maubray, Kentucky associate superintendent of school administration and finance. Most of the state dollars were doled out as flat district grants based on average daily attendance. The formula did not set aside additional money for at-risk students, and only 10 percent of the education budget was spent on equalizing efforts, Maubray says.

Funding under the new program, called Support Education Excellence in Kentucky (SEEK), requires:

• A guarantee of $2,305 per pupil in the 1990-91 school year and $2,420 per pupil for 1991-92. Additional funding will be given for at-risk children (based on the number of free lunch program participants who qualify under federal poverty guidelines). Also, additional money will go toward educating exceptional children and transporting children to school. The Office of Education Accountability of the Legislative Research Commission will review the adequacy of funding.

•    Unlike previous years, a minimum level of local support will be required, beginning at 30 cents per $100 assessed valuation of real and personal property and motor vehicles in the district. Districts may reach the local support minimum through levies on property, utilities (including cable television), an occupational tax and income tax. Districts may raise revenues beyond that amount up to 15 percent. The state rewards those districts taxing beyond the minimum with matching funds. The amount of matching funds is based on the equivalent of 150 percent of the average per pupil assessed value ($225,000 for 1990 through 1992). The state will credit each district with an ideal of $225,000 in assessed value per pupil and make up the difference between the actual amount raised and the amount coming from the ideal assessed property value. Districts already backing each student with $225,000 or more in assessed value would not receive those state matching funds. The local school board may increase its funds up to an additional 30 percent but must submit that increase to a vote in the district. The state does not match the additional 30 percent.

Testing as a way to gauge school children's progress is emphasized in Kentucky's new education system. The newly created Council on School Performance Standards must set the guidelines by which the schools are to be evaluated by December 1, 1991. The Kentucky Education Reform Act states that:

•   Beginning in 1991-92 students in 4th, 8th and 12th grades will be tested in reading, writing, science and social studies to establish a student achievement standard.

•   The first-year scores in each school will be used in 1993-94 and every two years after that to determine if students are performing above or below the standard. The test will eventually be phased out and replaced by a test that will require critical thinking and writing.

•    Based on the percentage increase in test scores, schools may be rewarded with money. School teachers and school administrators may also receive as much as $8,000 in bonus payments.

•    Schools falling below the standards would receive additional state funds to make improvements and would receive help from an appointed "distinguished educator" who may make recommendations to school teachers, principals and the superintendent.

•    A school scoring 5 percent or more below the standard would be declared a "school in crisis," and teachers and certified staff would be placed on probation. The school must develop an improvement plan with assistance from distinguished educators. The state board will set criteria and select the distinguished educators from a pool of "the most oustanding and highly skilled educators," which may include retired teachers. Teachers may nominate themselves but must meet the criteria.

•   If the school fails to improve, the superintendent and local board members are subject to removal upon the recommendation of distinguished educators. The state board appoints new

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board members who select a new superintendent, and local board elections resume after the district meets performance standards.

Much like the Chicago school reform, the Kentucky plan encourages local school councils consisting of teachers, parents and an administrator to adopt policies covering personnel, curriculum, extracurricular programs and instructional materials. By July 1996, most schools must have school councils.

Some of the more innovative measures of the plan will affect children in kindergarten through third grade and those in preschool:

•    To enable younger students to learn at their own pace, kindergarten through grade three will be eliminated. To enter the fourth grade, students must complete the program successfully, but standards have yet to be established to determine "success."

•    Family resource centers will be set up near elementary schools where at least 20 percent of the students are from families whose standard of living is at or below the federal poverty level. The centers could provide health, welfare and school services for both the students and families. Similar youth services centers will be set up near schools serving students age 12 and older.

•    By 1991-92 preschool education programs will be provided for 4-year-olds, particularly those at risk of educational failure. Handicapped 3-, 4- and 5-year-olds will receive free preschool education and related services.

Kentucky legislators and policymakers are optimistic about the changes. "I think it'll bring a new day for education in Kentucky," Combs says. Kentucky Supt. of Public Instruction John Brock says the new laws recognize teachers as professionals, but they also force school teachers and administrators to be accountable for the progress of at-risk students. "No one held them accountable for learning," he says. "We're saying that's not what we want. You can't just teach the good kids."

The "good" kids sailed through first grade and on to second, but up to 20 percent or more of their classmates failed, Brock says. Their failure, he says, pointed to a system that did not account for the different skill levels that each student brought to school. Brock praises the elimination of kindergarten through third grades because he sees it as a way to build skill and confidence in all school children. "As a result, we hope youngsters will learn not just by rote memory but also be able to understand how to use it [the knowledge]."

Illinois legislators are cautious about the changes Kentucky has made. Sen. John Maitland (R-44, Bloomington) says test scores should not be the only measuring stick for good and bad schools: "You can't just say because your scores increase . 10 percent and another [school] increases 5 percent that 'You're doing a terrible job.' " He says schools should be held accountable but treated on an individual basis. Rep. Hoffman agrees: "How well a school is doing depends on who walks through the door." He says the key to Kentucky's success will be determined by the performance goals set by policymakers. Illinois State Supt. C. Robert Leininger suggests that performance goals should also consider improvement in dropout rates and pupil/teacher ratios. Fewer dropouts mean lower test scores because more at-risk students are staying in the system, he says. Leininger says he favors the elimination of kindergarten through third grades because it encourages children who have difficulty in learning to go at their own pace. "I like the idea of not labeling kids," he says. "You have got to start teaching the whole child and not just good kids. [In Illinois] we've segregated the kids with special difficulty."

Leininger says Illinois currently does many of the things required by the Kentucky plan. The Illinois State Board of Education has already taken steps to improve the assessment of Illinois schools. The board adopted nine regulatory principles in April calling for, among other things, closer examination of school improvement plans. The 1985 education reforms require schools to adopt state learning goals for their students. They base their progress on test scores and must develop improvement plans. In the past, the board checked to see if the plans were on file, teachers were certified and required programs were available. Now the board will compare what the schools have planned to do to improve with what they actually accomplish, says Lee Milner, spokesman for the Illinois State Board of Education.

The Illinois Manufacturers' Association (IMA) would support taking the Kentucky plan one step further, says Tom Reid, vice president of the IMA educational and environmental program. The IMA would support withholding money from districts not showing improvement, Reid says. "Withholding money isn't spiteful," he says. "As a last resort you hold feet to the fire until they act. If the local communities don't take action to improve their local schools, why should the rest of the taxpayers care enough to send money to that district?" Reid adds that businesses should be able to rate school districts to let the schools know if they are preparing students well enough for the work world.

Litigation may not be the best way to bring change, but it may be the only way in some states, says John Augenblick, a Denver education consultant who advised the Kentucky task force authoring education reforms. "There's a sense that some legislators need a fire under them, and litigation is the best way," he says.

Since 1973, high courts in 14 states have struck down state school finance laws. There were three in 1989: Montana in February, Kentucky in June and Texas in October. In Montana, the lawsuit increased local and state dollars backing each student. In Texas the Senate and House narrowly reached a compromise plan last month to avoid a court takeover of school funding. Just as Texas reached its compromise the New Jersey high court ruled June 5 against its state education finance system. An Illinois lawsuit is unlikely to bring the major reforms seen in Kentucky, Augenblick says. ' 'Kentucky has some of the worst poverty in the nation," he says. "I don't think about Illinois having schools where roofs are falling in and where textbooks are 30 or 40 years old.'' But he does see a correlation between Illinois and the Texas and Montana cases. "What I see in Illinois is enormous variations in spending and tax rates," he says. "That's the traditional case of the sort Texas and Montana represented. That tends to be a fiscal answer."

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