The Alabama Constitutional Revision Commission voted 9-7 Thursday to propose a new version of the Constitution's Section 256 – the section that mandates separate schools for "white and colored children."
If approved by the Legislature and the voters, the commission's proposal would change Section 256 to state that Alabama will "maintain a system of public schools," without any reference to segregation. The proposed wording also states that "nothing in this section shall create any judicially enforceable right."
That last phrase is a nod to a long-running debate about school funding – a debate that has already scuttled two past amendments intended to erase segregation from the Constitution.
"It's disappointing that, 50 years later, we're still not able to agree on this," said Carolyn McKinstry, a member of the commission.
State lawmakers appointed the Constitutional Revision Commission in 2011 to conduct an article-by-article revision of the Constitution of 1901, which is by far the longest state constitution in the country.
Reformers also hoped to eliminate the vestiges of racism in the document. In framing the Constitution in 1901, state leaders stated that their goal was to establish white supremacy by law. Those framers set up separate black and white school systems, and funded those schools in part through poll taxes intended to block African-Americans from voting.
That segregationist wording has had no legal force since the days of the civil rights movement, but some state leaders have said they'd like to get rid of the separate-schools passage because it's an embarrassment.
Two past attempts to change Section 256 have failed. Voters narrowly rejected a rewrite in 2004 because of concern from conservatives, who worried that the rewrite would also eliminate a passage that states that education is not a right. Opponents of the 2004 proposal said that without the "no-rights" wording, a long-undecided lawsuit could allow courts to demand equal funding in each of the state's school systems.
Reformers tried to change the passage again last year, this time leaving the "no right" wording intact. The measure was defeated soundly, this time with black leaders urging a "no" vote, on the theory that support for the change would also be a vote for the "no right" wording.
Last week's proposal appears to be an attempt to split the difference. The proposed new wording doesn't state that Alabamians have no right to an education, but it does state that "nothing in this section shall create any judicially enforceable right or obligation." It also includes a reference to Amendment 582, a measure banning state courts from requiring disbursement of state funds without approval of the Legislature.
Commission member Matt Lembke, who proposed the wording, declined comment on the matter Monday. Lembke said he had a policy of not commenting on Constitutional Commission matters outside of the commission's meetings.
McKinstry, who voted against the proposal, said she didn't expect voters to favor this wording any more than they supported last year's amendment. She said many Alabamians do in fact see school funding as inequitable, and may not want to block an equitable-funding lawsuit.
The commission also approved a set of changes to the Constitution's Declaration of Rights, the state equivalent of the Bill of Rights. According to a summary by commission staff, the members voted to add an "equal protection" clause stating that no one shall be denied protection of laws based on race, gender, sex, religion or color.
In past meetings, some members had proposed adding sexual orientation to that list. According to staff member Othni Lathram, commission member and state Rep. Patricia Todd, R-Birmingham, made a motion to add that wording at Thursday's meeting, but the proposal was voted down. Attempts to reach Todd Monday were unsuccessful.
To become part of the Constitution, each of the commission's proposals must pass the Legislature as an amendment and be approved by voters. The Legislature doesn't meet again in regular session until 2014.
Capitol & statewide reporter Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.