Foreword: Rights, Remedies, and Rose

In this Foreword to the University of Kentucky’s “Rose at 20” Special Feature, I seek to introduce the three featured articles, as well as to identify two major paradigm shifts in school finance litigation that grew out of the Kentucky Supreme Court’s decision in Rose v. Council for Better Education. The Rose decision is commonly thought of as a bridge between prior education litigation strategies founded primarily on theories of equity or equality and subsequent litigation strategies founded primarily on theories of adequacy. Although the distinction between these two strategies is well-worn, it obscures two important changes to state constitutional doctrine that help define where the post-Rose world began. The plaintiffs in Rose sued on the theory that the educational resources in the plaintiff districts were both inadequate and inequitable, but they won a far-reaching judgment based primarily on the total inadequacy of the entire state education system. The two shifts I identify were integral to this decision and have been emulated by several courts since.

Although the Rose decision is primarily noted for the success of adequacy theory as a strategy for proving constitutional harm, less noticed doctrinal innovations in Rose lay in the court’s treatment of education rights and the remedies warranted for their violation. As to rights, the Kentucky court was among the first to enforce the right to education as a positive individual right. As to remediation, the Kentucky court ushered in the still-dominant judicial view of separation of powers as an independent limit on judicial review at the remedial stage of litigation. These two doctrinal changes distinguished Rose from the litigation that preceded it, and they remain relevant today.