Kentucky Parents Should Look to the Courts: Applying Rose and Section 183 to the failure of Jefferson County Buses

Blog Post | 112 KY. L. J. ONLINE | November 22, 2023

Kentucky Parents Should Look to the Courts: Applying Rose and Section 183 to the failure of Jefferson County Buses

By: Benjamin Skeens, Staff Editor, Vol. 112

Jefferson County Public Schools (JCPS) is the largest school system in Kentucky, at just over 96,000 students.[1] To put this into perspective, the JCPS Parent Teacher Association has more members than forty-six Kentucky counties have as residents.[2] Due to the sheer size of the district proportionally, it is fair to say that the problems of JCPS are the problems of Kentucky. Add in Louisville’s specifically complicated racial history around busing, and the plot changes from just a Kentucky story, to a decidedly American one.[3]

Kentucky case law is uniquely fit for analyzing public school issues, thanks to Rose v. Council for Better Education, a 1989 Kentucky Supreme Court case which had the effect of declaring the entire public school system within the state unconstitutional.[4] The challenge was brought to the Court based partially on Section 183 of the Kentucky Constitution, which places a duty upon the General Assembly to “provide for an efficient system of common schools throughout the state.”[5] In Rose, the Kentucky Supreme Court used 9 characteristics to define a “efficient” common school system. The situation in Jefferson County likely violates the spirit of at least five of them.[6] The General Assembly is in danger of violating the following characteristics:

1. “Common schools shall be available to all Kentucky students.

2. Common Schools shall be substantially uniform throughout the state.

3. Common schools shall provide equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances.

4. Common schools shall be monitored by the General Assembly to assure that they are operated with no mismanagement and

5. The General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education.”[7] 

The trouble with the buses in Jefferson County started with good intentions. The district had recently attempted to use a new technology to optimize bus routes throughout the county, but it is reported that the system failed to account for the correct amount of time between stops, leading to some students not getting home until after 7 p.m.[8] The first day of school in the fall of 2023 led to what the superintendent referred to as a “transportation disaster,” with students not getting home until well after 9 p.m. and eventually leading to district wide school cancellations the following two days.[9]

The problem comes with a complicated history. Jefferson County has struggled with how to legally balance integration with the desires of parents for school choice for decades. Because of the policy implications behind JCPS busing, state legislators have used the issue to call for neighborhood school choice, breaking up the JCPS district, and overhauling the school board, among other things.[10]

Putting the political battle aside, the parents of Jefferson County could find relief through the Rose holding. Section 183 is also alive and well for use by defenders of the Kentucky public school system. For example, it was recently a primary impediment to a charter school bill that would have funneled public tax money to pay charter school tuition.[11] Coincidentally, the same group that succeeded in challenging the charter school bill, Council for Better Education, Inc. challenged the state’s public school system in Rose.

The bus failures in Jefferson County show that it might be time for the Council, or another group of like-minded individuals desirous for a better public education system, to use Rose and Section 183 once again. The problems facing the system are beginning to self-propagate. The higher strain placed on bus drivers after the disastrous first day have led to “sick-outs” by bus drivers, further leading to cancelled routes and yet again – children getting home later than they should.[12]

Despite calling for a reharnessing of Rose and Section 183 again, Rose ultimately says it is up to the General Assembly on how to achieve the constitutionally required “efficiency.”[13] This plea extends not only to concerned citizens who wish for better public schools in our Commonwealth, but also to the Legislature; to adequately fund and support public school districts in fulfilling our Constitutional duty. In the end, if the state legislature is content in letting public schools flounder, parents should take to the courts to enforce the constitutional guarantee of Section 183.

[1] JCPS Facts, Jefferson Cnty Pub. Sch., https://www.jefferson.kyschools.us/about/newsroom/jcps-facts (last visited Nov. 18, 2023).

[2] Id.; see also America Counts Staff, Kentucky Population Topped 4.5 Million in 2020, US Census Bureau (Aug. 25, 2021), https://www.census.gov/library/stories/state-by-state/kentucky-population-change-between-census-decade.html.

[3]Allison Ross, JCPS desegregation timeline, Louisville Courier J. (Sept. 3, 2015), https://www.courier-journal.com/story/news/education/2015/09/03/jcps-desegregation-timeline/71637432/.  

[4] Rose v. Council for Better Educ., 790 S.W.2d 186, 216 (Ky. 1989).

[5] Ky. Const. § 183.

[6] See Rose, 790 S.W.2d at 212-3.

[7] Id.

[8]Adriana Diaz & Analisa Novak, “Transportation disaster” closes schools, leaves students stranded in Louisville, Kentucky, CBS News (Aug. 16, 2023), https://www.cbsnews.com/news/louisville-kentucky-school-bus-transportation-disaster-schools-closed/.  

[9] Jennifer Osting & Alex Suckow, JCPS cancels 2 days of school as they work on ‘disaster’ bus situation, WLKY News (Aug. 10, 2023), https://www.wlky.com/article/jcps-cancels-school-thursday-friday-bus-delays-louisville/44781385#

[10] Jason Nemes (@jmnemes), X/Twitter (Aug. 10, 2023, 2:43 PM), https://twitter.com/jmnemes/status/1689709154158403587?s=20.

[11] Commonwealth ex rel. Cameron v. Johnson, 658 S.W.3d 25, 29 (Ky. 2022).

[12] Krista Johnson & Eleanor McCrary, Thousands of JCPS students miss school amid bus driver ‘sickout’, Louisville Courier J. (Nov. 6, 2023), https://www.courier-journal.com/story/news/education/2023/11/06/jcps-bus-driver-sickout-routes-canceled-over-absences/71475291007/.   

[13] Rose v. Council for Better Educ., 790 S.W.2d 186, 212 (Ky. 1989).