If there is any argument that the state has a constitutional duty to maintain public schools, that argument may be destroyed by Amendment 4.
On its face, Amendment 4 — which will appear on the ballot Nov. 6 — is innocuous. All it does is remove language in Amendment 111 of the Constitution that authorized students to “attend schools provided for their own race.”
In 1954, the U.S. Supreme Court ruled — in Brown v. Board of Education — that segregation of public schools was unconstitutional. Before the ruling, Section 256 of Alabama’s constitution required the state to establish and fund a public school system.
In response to Brown, the Legislature passed and the state adopted Amendment 111. The amendment, passed in 1956, purported to change Section 256 by eliminating the right to a public education. The purpose of the amendment — set forth unashamedly in committee notes — was to thwart the Brown decision. The theory was that the state could avoid desegregation by closing down the public school system. It would instead provide vouchers to parents, who could send their children to private, segregated schools.
The portion of the amendment that would be removed Nov. 6 was the whole point of Amendment 111. It eliminated the right to a public education as a means to continue segregation.
While a number of laws seeking to implement Amendment 111’s segregationist intent were ruled unconstitutional in subsequent years, the constitutionality of Amendment 111 itself was not challenged until 1990. A lawsuit challenging the amendment was filed with Montgomery County Circuit Judge Eugene Reese.
To recap: In 1990, the Alabama constitution had two provisions regarding the state’s responsibility for public schools. Section 256 required the Legislature to fund public schools. Amendment 111 purported to amend Section 256 by eliminating the requirement that the state maintain or fund public schools.
In 1991, Judge Reese ruled that Amendment 111 was void because it violated the Equal Protection Clause of the U.S. Constitution. He then ruled that, because Amendment 111 was void, the Section 256 guarantee of a public education was in force.
Reese’s knock-out punch came in a 1993 order: “The system of public education in the State of Alabama shall be funded sufficiently to enable all public schools to fully achieve Constitutional and statutory standards of educational equity and adequacy.”
The state challenged the ruling by seeking an advisory opinion from the state Supreme Court. In 1997, the Supreme Court ruled that Reese’s order was binding on the state.
The implications were enormous. Not only would Reese’s ruling require a massive increase in school funding, it would effectively require tax reform to pay for it. School advocates rejoiced and landowners, expecting to lose their favored tax status, cursed.
All that changed in 2002. The state Supreme Court, considering an appeal of an order pertaining to whether proration of school funding was constitutional under the resurrected Section 256, took the opportunity to reconsider its 1997 decision. The 2002 decision concluded that court proceedings sorting through the specifics of what steps the Legislature had to take to comply with the public-education guarantee went too far. That, the Supreme Court said, was an intrusion into the Legislature’s exclusive domain.
Importantly, the Supreme Court did not address the underlying question of whether Amendment 111 was constitutional, which the state had never appealed. Nonetheless, the decision ended any efforts to reform school funding.
Since then, a federal court dismissed a lawsuit by Lawrence County and other districts claiming that the state’s inequitable funding of school districts was unconstitutional. The plaintiffs in the case did not make the argument that Amendment 111 was unconstitutional. The federal court ruled that the taxation system used to fund schools, while inequitable, did not violate the U.S. Constitution. The court did not address whether Section 256’s guarantee of public schools had survived the passage of Amendment 111.
So now, back to Amendment 4 and the Nov. 6 ballot.
Amendment 4 eliminates the explicitly segregationist language of Amendment 111. Because almost no one likes the racist taint in the Constitution, it is likely to pass.
By removing the segregationist language, however, the amendment effectively kills any argument that Amendment 111 is unconstitutional. Amendment 4 corrects the constitutional infirmity that led Judge Reese to declare Amendment 111 void. It reauthorizes the remainder of Amendment 111 without duplicating its segregationist purpose. By saving Amendment 111, it effectively relegates Section 256’s guarantee of a public education to the trash bin of discarded remnants of the state Constitution.
There is some argument that Judge Reese’s 1991 and 1993 rulings — voiding Amendment 111 and thus resurrecting Section 256 — are still binding on the state. Even if not, the argument that Judge Reese found compelling could still be made.
If Amendment 4 passes, the state can rejoice that the vestiges of racism have been eliminated from the Constitution. Some, though, will mourn the fact that an argument for adequate state funding of schools has been eliminated as well.