One Last Shot at Getting Our Constitution’s Education Article Right

Perhaps the third time will be the charm.

Alabama is at it again, trying to write a decent Education Article for our state constitution.

Trying to get it to pass in the legislature, and ultimately to be approved by the voters in the 2014 election.

[For background on the rewrite and who is doing it, check out this post.]

The first part of the Education Article is Section 256. Here’s the language that was approved at the August 8 meeting of the Constitutional Revision Commission (the “Commission”) to replace that section:

The legislature shall establish, organize and maintain a system of public schools throughout the state for the benefit of children thereof, provided nothing in this Section shall create any judicially enforceable right or obligation and nothing in this Section shall in any way affect the provisions of Amendment 582. 

Wait. Run that second part by me again: “provided nothing in this Section shall create any judicially enforceable right or obligation and nothing in this Section shall in any way affect the provisions of Amendment 582.”

So the first part of the sentence affirms the state legislature’s obligation to “establish, organize and maintain a system of public schools“, but the second part declares that there is actually no obligation and you can’t sue to force an obligation.

Consider me confused. What was the point of the rewrite again?

I have had the privilege of sitting at the table with a group of well-informed folks from various education organizations discussing this for the better part of this year. Most of the discussion has centered on the minimum amount of words needed to be included in the Education Article to establish the right to a public education in the state of Alabama. This informal working group has attended the public hearings and has made a recommendation to the Subcommittee whose job it was to make a recommendation to the full Commission for consideration.

Fair to say that what was approved wasn’t what the group suggested.

Amendment 582

So what’s this Amendment 582 stuff, you ask? The full language is at the link, but what it basically says is that no state court can force the “disbursement of state funds” unless both houses of the state legislature pass it with a majority vote. In simpler terms: No court interference in state funding.

So why this language? Provided nothing in this Section shall create any judicially enforceable right or obligation. 

Amendment 582 already says it. Some folks believe the language needs to be there to shield Alabama from an equity funding lawsuit.

If we are funding education adequately and equitably, what are we afraid of? Why the fear of a lawsuit? Am I missing something?

Separation of Powers?

Forget about the fear of a lawsuit for a minute. How can the legislative branch pass a law saying the judicial branch can’t even take a look at what the legislature does? I thought that whole “separation of powers” thing was to keep us balanced (as in “checks and balances”, 10th grade history-style).

Legislature makes the law.

Judicial branch interprets the law.

Why preclude one from checking the other?

Does This Language Have a Chance of Making It Past the Voters?

Alabama’s voters have rejected two previous attempts to rewrite the segregationist language that currently exists in the Education Article, presumably because the new language was deemed no better than what was already in the state Constitution and was viewed to be more harmful by some groups of citizens.

So what are the chances this language will be approved by the voters?

If the language approved by the Commission makes it through the legislature (remember, 2014 is an election year and it is likely that the majority party will want as little controversy as possible), it is highly unlikely that the voters will approve the change, given the history of voters in this state.

With all legislators on the ballot next year, this will likely become the focus of an all-out war. The battle could be long and painful, with our children’s futures on the front lines. Education policy and education reform battles have been extremely polarizing across the country for the past few years, and it may prove to be a hotbed for discourse here in Alabama as well.

Imagine that. Public education front and center in Alabama. In an election year.

Imagine what might get done.

What Governor Brewer Said

While I typically don’t share long quoted passages, I leave you with Commission Chair Governor Albert Brewer’s remarks at the July meeting of the Commission. If you’d like to read the full transcript of the discussion, start on page 75 of this document. [Very interesting. Extremely impressed with the full transcripts of their meetings.]

“Are we going to affirm public education in our Constitution? If we want to have such an expression, then where have we been for the last several months, two years, in fact, while this issue has been debated in the public square even to the Alabama Supreme Court which refused to rule on it giving us no guidance at all?

And now it’s suggested that we take time to study the issue further. And frankly, we are so close to being complete in our work as a Commission that it seems that that would only have the effect of making it impossible for us to address the issue of what is our expression or recommendation for an expression on public education.

We’ve seen all sorts of  proposals and everybody has an objection to some of them, and surely somewhere there is language that expresses our support or commitment to the cause of public education without making it a constitutional right that brings a lot of other issues to the table which I understand is the concern that’s impeding our progress in that point now.

I’m interested in finding solutions, not objections if we can and I think you are, too, all of you in that regard.”

Are you interested in finding a solution?

What You Can Do

Some are asking those on the Commission that voted to approve the language in August to place the motion back on the table for reconsideration and remove the language that nullifies the state’s obligation to provide a public education. The stuff about not having a real obligation or the right to have the judiciary weigh in.

Whether or not you agree with what the Commission approved likely depends on where you stand on whose responsibility it is to ensure schools are funded adequately and equitably across the entire state. But whether or not you agree, the whole idea behind setting up the Commission was to allow input by ordinary citizens (that’s us).

Do you believe this is the right language for our Constitution? Contact the Commission. Let them know where you stand.

The Commission meets against later this month (date to be announced). Could be an interesting showdown.

This is your opportunity to speak up. Use it.