Amendment 4 states, “Nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense…”
It hasn’t always been this way.
The story of the struggle of public schools for adequate and equitable funding for all children in Alabama is told in the history of our fundamental law, the 1901 Constitution. In 1901, Article VIV, Section 256, of the Constitution established public education as a state responsibility and right for all children, even though in racially segregated schools. It said, “The state Legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof…”
That was the law until 1956. In reaction to the Brown v. Board of Education Supreme Court decision requiring integration of public schools, Amendment 111 eliminated the right to a public education and the state’s responsibility to fund public schools. Public education became a policy and depended on available resources and the willingness and the ability of the student.
The amendment read, “It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this constitution shall be construed as creating or recognizing any right to education or training at public expense ….”
The amendment also allowed the Legislature to fund private schools.
This was the law until 1996. In the Ace v. Hunt case involving equity and adequacy of funding for public schools, a circuit court ruled that Amendment 111 was unconstitutional in that it was racially motivated and was in violation of the U.S. Constitution. The court ruling was not appealed to a higher court.
In 2002, the Supreme Court, at its own initiative, and long after its appellate jurisdiction had ended, ruled that the separation of powers doctrine precluded the court from ordering the Legislature to address the equity and adequacy funding issues and dismissed the 1996 case. However, the Supreme Court did not rule on the constitutionality of the education article. Thus, the 1996 ruling that the 1956 education article is unconstitutional is the current statement on the legal and constitutional standing of public education in Alabama — public education is a right and the state has a responsibility to fund public education (1996).
Ignoring the 1996 ruling, this year’s Amendment 4 contains the 1956 racially motivated policy that public education is not a right, the state has no obligation to fund public schools and the Legislature may fund private schools.
Thus, Amendment 4 is, at best, a legally and constitutionally flawed amendment, and, at worst, reaffirms the 1956 racially motivated policy on public schools. To reaffirm racially motivated public education policy is worse for the state than retaining remnants of racial language that Amendment 4 would remove.
If Amendment 4 is defeated, the Legislature can propose a new amendment deleting both the racial language and racially motivated policies, including deleting the provisions that public education is not a right of Alabama children or a responsibility of the state. Should Amendment 4 be approved, the standing of public education in Alabama is further confused, the wrong message is sent in our efforts to promote and develop the state, and the amendment will immediately be challenged in the courts at the state’s expense. All of this can be avoided by voting no on Amendment 4.
Gerald W. Johnson is Emeritus Professor of political science at Auburn University.