Representative Bill Dunn of Knoxville has proposed an amendment to the Tennessee Constitution that purports to remove the requirement that the General Assembly adequately fund public schools in the state.
However, an Attorney General’s opinion published on March 29 notes:
“… the proposed amendments to the public schools clause of the Tennessee Constitution do not substantively change that clause.”
The opinion was issued in response to a query from Rep. Dunn regarding the amendatory language and the state constitution’s equal protection clause. Here’s some relevant discussion from the opinion:
The amendatory language proposed in HJR 493, if adopted, would do nothing to change the fact that any legislation enacted in furtherance of the public schools clause must comply with the equal protection guarantees of the Tennessee Constitution.
But the opinion also says:
It is, therefore, redundant to add that the General Assembly “as the elected representatives of the people” shall provide for free public schools. The General Assembly cannot provide for public schools in any capacity other than as representatives of the people. Similarly, it is superfluous to add that the General Assembly shall provide for free public schools “in such manner as the General Assembly shall determine.” It is already implicit in the current version of article XI, § 12, that the General Assembly determines the manner in which to provide for the required system of free public education.
If the new language is “redundant” and does not “substantively” change the Constitution, then it would not prevent local districts currently seeking relief due to alleged inadequate funding from finding that relief through the courts.
But, that’s not what Bill Dunn thinks.
In his advocacy for the amendment, he noted that courts in Kansas and Washington had used clauses similar to Tennessee’s Article XI, Section 12 to require those states to provide additional funding for their public schools.
When the Kansas Supreme Court ruled that schools there required additional funds to meet the state’s Constitutional mandate, the reply went like this:
“A political bullying tactic” and “an assault on Kansas families, taxpayers and elected appropriators” is how the president of the Senate, Susan Wagle, a Republican, responded to that ruling, which was based on requirements in the state Constitution. Mr. Brownback spoke darkly of an “activist Kansas Supreme Court.”
In his remarks, Dunn warned Tennessee lawmakers of future activist courts that may require the General Assembly to actually follow the Tennessee Constitution.
Of course, he also fudged the numbers and claimed that the Small Schools lawsuits and the resulting BEP did little to improve education outcomes in the state.
So, here’s the bottom line: Either the Attorney General is right, and the amendment proposed by HJR 493 does nothing OR, Rep. Bill Dunn is right, and the proposed amendment would prevent the Supreme Court from finding in favor of districts seeking to force the General Assembly to fund a system of free public schools.
Either way, the resolution should be rejected.
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