Alabama has the nation's longest state constitution and – in some ways – one of the worst. While the Judicial Article that was adopted in the early 1970's is a model for other court systems, the rest of the document concentrates power in Montgomery, contains racist language, and is just too darn long.
Unfortunately, the Constitution Revision Commission members who worked to revise the Education article may be about to make things worse.
First, let's review why the Education article is even being discussed. It's because of Article 24, Section 256:
To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective to such period and to such extent as the legislature may provide.
That same article/section specifically says that no student has the right to education or training at public expense.
There's disagreement between members about the wording of the proposed Education article. The racist language was a no brainer to remove, but the question of funding and “rights” tied the committee in knots. The language seems minor, but could have huge implications for public schools in the state.
Approved wording for the Education Article (XIV, Section 256) revision that says:
The Legislature shallestablish, organize and maintain a system of public schools throughout the state for the benefit of children there-of.
Then Commissioner Matt Lembke offered the following amendment which was approved in a 9-7 vote:
Nothing in this section shall create any judicially enforceable right or obligation, nor shall it in any way limit the effect of Amendment 582 to this Constitution. (Amendment 582 states, No order of a state court, which requires isbursement of state funds, shall be binding on the state or any state official until the order has been approved by a simple majority of both houses of the Legislature.)
The ACCR's December 2013 newsletter (not online yet) explains the controversy:
As you know, there were some problems with the wording the Commission chose to replace Section 256 of the Education
Five if the Commissioners who voted against an amendment added to the generally approved words proposed by two subcommittees of the Commission, have submitted a Dissenting Opinion to the Commission Chair, Governor Albert Brewer, to be included in the report that will be given to the Legislature to consider for legislation. Those five Commissioners are: Jim Pratt, Patricia Todd,Carolyn McKinstry, Phillip Brown and Quinton Ross. The other two commissioners who voted against the amendment were Gov. Brewer and Senate President Pro Tem Del Marsh (by his proxy, Ryan Cantrell).
But Governor Brewer chose to NOT include the dissenting opinion as part of the Constitution Revision Commission report because it had not been part of the official meetings. So the dissenting report will be provided to each legislator,by personal letter accompanying the Commission report.
Here are the words of the Dissenting Report:
We, respectfully submit this dissenting report to you, concerning Section 256 of the Education Article. We offer the following rationale for including a dissenting report.
The Education Article subcommittee, chaired by Commissioner Vicki Drummond, recommended the following language for Section 256 of the Education Article to the Constitution Revision Commission:
The Legislature shall establish, organize and maintain a system of public schools throughout the state for the benefit of children thereof.
After lengthy discussion at the next Commission meeting and following several suggestions by various Commissioners concerning qualifying language and a concern that something that needed to be added to address higher education, Governor Brewer, as Chair of the Commission, asked Commissioners to indicate whether they were in agreement that the State of Alabama should provide a system of public education for the children of the state. All Commissioners present indicated their support for that proposition. Hence, the matter of qualifying language was referred to a second committee, chaired by Commissioner Pratt.
The second committee included Commissioner Drummond, some of the members of her committee, as well as additional members of the Commission who were asked to join the effort to evaluate the language suggested by the Drummond committee.
After a great deal of consideration and discussion, the Pratt Committee concluded the language offered by the Drumnond Committee was the best proposal and recommended it to the Commission. That language was adopted by the Commission, however, an amendment was offered by Commissioner Matt Lembke, which added the language:
Provided that nothing in this section shall create any judicially enforceable right or obligation.
The amendment passed by a very narrow margin.
We, the members of the Commission offering this dissenting opinion, believe the amendment offered by Commissioner Lembke undermines the work of two separate committees who both reached the same conclusion.
We also believe the Le
mbke amendment undermines the basic proposition supported by all members of the Commission, that is, a right to a public education.
By foreclosing judicial enforcement of the right, the proposed amendment violates the doctrine of separation of powers. The Commissioner offering the amendment stated it was necessary because of his belief that Legislature could be better trusted to do their constitutional duty providing the public education; however, in our system of democracy, all three branches of government are co-equal and deserve the same presumption that they will abide by the Constitution. Hence, the amendment disrupts the basic checks and balances of our democracy.
Further, there are practical and political considerations. No other state has a constitution in which the education article is restrained from enactment such as the wording in the amendment. No other article in the Alabama Constitution contains wording that restricts the article from being judicially enforced.
Those who have stated publicaly or privately their belief the amendment is necessary in order for the revision of Section 256 to pass the Legislature, are ignoring that in 2012 voters rejected Amendment 4 which revised the Education Article, because the opposition felt it removed the right to an education. The added amendment would lead to opposition by the same groups that defeated the amendment in 2012.
Hence, with the amendment added to the language recommended by two separate Commission committees, it is likely to lead to no change in Section 256 which would leave the State of Alabama as one of the few states not requiring the State to provide a public education to the children of this state and with racist language that will continue to embarrass the state for years to come. Such a result undermines the work of the Commission in proposing a non-discriminatory constitution for this state.
Hence we ask that a dissenting report be included supporting the conclusion reached by the Drummond and Pratt Committees to include the rationale stated herein.
Jim Pratt, Carolyn McKinstry, Phillip Brown, Rep. Patricia Todd and Senator Quinton Ross