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Alabama NewsAlabama Politics
Actions by Legislature Require Constant Vigilance
By Gary Palmer
Posted on: January 21, 2005
One of the first bills to be introduced after the Alabama Legislature convenes on February 1st will be a constitutional amendment to remove racist language from Alabama's Constitution.
As you will recall, Amendment 2, which was intended to remove the racist language, was narrowly defeated last year after it was revealed that Represenative Ken Guin (D-Carbon Hill) slipped in an amendment of his own. Guin changed the original version of Amendment 2 to also remove a 1956 amendment that states that there is no fundamental right to an education in Alabama. The discovery of this sleight of hand raised suspicions that the removal of the 1956 amendment language was intended to open the door to court ordered tax increases for public education.
It was concern over the possibility of a court ordered tax increase along with widespread disgust over the effort to sneak this by the voters that led to the defeat of Amendment 2.
Prior to the vote many state politicians and some in the media tried to portray the concern by opponents of Amendment 2 as a cover for racism or some other insidious agenda. But when one considers the epidemic of education funding suits filed against state governments over the last 30 years as well as Alabama's familiarity with court orders dealing with prisons and mental health facilities, concern that the removal of the 1956 amendment could open the door for lawsuits challenging the adequacy of education funding in Alabama is understandable.
States courts became the primary venue target of such lawsuits after efforts to use the federal courts were stopped short by the U.S. Supreme Court's decision in the 1973 case, San Antonio vs. Rodriguez. In that case, the Court ruled that education is not a right guaranteed in the U.S. Constitution and is essentially a state issue. This ruling resulted in a wave of equity funding lawsuits of various forms being filed in state courts.
To date, education funding lawsuits have been filed in all but five states, and in the majority of cases the suits claim a constitutional right to a public education that some liberal judges have used to justify ordering states to redesign their public education systems which often included imposing higher taxes and fees.
Most of these suits have been "equity funding" suits that demand states fund schools equally by taking money from wealthier districts and giving it to poorer ones. Over the last few years the focus of these suits has shifted from "equity in funding" to "adequacy in funding" because equity funding court decrees usually focus on the distribution of existing education funds, whereas adequacy suits focus on forcing the states to spend more.
With these suits in mind it is evident why so many Alabama voters concluded that the threat of a court ordered tax increase was legitimate.
On the other hand, respected legal analysts have argued that because Alabama has perhaps the strongest "separation of powers" provision of any state constitution in the nation, our lower state courts would not be successful in imposing a court-ordered tax increase. In fact, in a 2002 opinion the Alabama Supreme Court dismissed a 1993 State Supreme Court decision that had found state financing of K-12 unconstitutional and had mandated that the Legislature create a new system.
The 2002 Court ruling said that the courts in Alabama have no authority to force an increase in education spending; rather, that responsibility belongs solely to the Legislature. The opinion stated that in Alabama, "…separation of powers is not merely an implicit 'doctrine,' but rather an express command; a command stated with a forcefulness rivaled by few, if any, similar provisions in constitutions of other sovereigns."
Moreover, they argue that Amendment 582, which was approved by the voters in 1996, prohibits any Alabama court from imposing a tax increase on the state without the approval of the State Legislature. The problem with Amendment 582 is that some believe the amendment actually creates a loophole that allows the Legislature to delegate some of its taxing powers to the courts. In addition, it should be pointed out that Amendment 582 has never been tested in court and would be subject to the interpretation of future justices. And while it would most likely be upheld by the justices presently serving on the State Supreme Court, there is no guarantee that future justices would not toss it out.
Indeed, five of the justices on the court at the time of the 2002 ruling are up for reelection in 2006 and this issue could be one of the defining issues of the that election.
The issue of repealing the 1956 amendment is a legitimate debate because it clearly has racist underpinnings. But it should be conducted in full view and with full participation from the public, particularly in view of the likelihood of court interference with how Alabama runs its public schools.
While there may be disagreement about the threat level of judicial meddling posed by removing the 1956 amendment, one thing that is certain is that the public has little confidence that the State Legislature will be above board and honest. The effort to try to sneak in a change to Amendment 2 served to reinforce this lack of confidence, but it also reinforced the notion that when it comes to actions of the Legislature, constant vigilance is required.
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