Six State Legislatures Have Considered Constitutional Amendments to Curb Courts’ Powers — but None of Them Have Been Adopted

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Six State Legislatures Have Considered Constitutional Amendments to Curb Courts’ Powers — but None of Them Have Been Adopted

As confrontations between courts and state legislatures have increased in a number of states in recent years, state legislators in at least six states have proposed amending the state constitution to limit or eliminate the state courts’ authority to mandate increased school funding. The proposed constitutional amendments in each of these six states – Arkansas, Kansas, New Hampshire, Tennessee, West Virginia, and Wyoming – are described in detail below. None of the proposed constitutional amendments in these states have passed.

ARKANSAS

The Arkansas Senate passed a joint resolution in January of 2017 that would make the General Assembly the “sole and exclusive evaluator of whether the system of free public schools satisfies the Arkansas Constitution.”1 The joint resolution died in the Senate in May of 2017. At the time the resolution was introduced, state senators explained that the purpose of the proposed amendment was to “get[] the courts out of our education system.”2

At the same time, the Arkansas Senate passed another joint resolution called the “Public Education Partnership Amendment of 2018.”3 This proposed constitutional amendment aimed to release the education system from state control, returning control (particularly control of funding) to local districts.4 This proposed constitutional amendment also died in May of 2017.5

KANSAS

As of 2017, the Kansas State Legislature had tried thirty-four times to pass a constitutional amendment wresting control of education funding from state courts.6 In 2017, the Kansas Legislative Research Department put together a memorandum outlining each of these proposed amendments.7 None of the proposed amendments has passed thus far.8

The wording of these proposed amendments has varied over time. Some explicitly aim to thwart school funding litigation. For example, in 2005, the Senate proposed an amendment stating that “[n]o court shall order any remedy for a violation of any provision of this article that shall cause the closure, or prevent the operation, of public schools.”9  Other amendments do not target the courts directly but aim to define education financing as the exclusive prerogative of the legislature.10 For example, the Senate’s proposed amendment in 2013 would have added the following: “The financing of the educational interests of the state is exclusively a legislative power under Article 2 of the constitution of the State of Kansas and as such shall be established solely by the legislature.” Some interest groups in Kansas continue to push for a similar constitutional amendment.11

NEW HAMPSHIRE

In January of 2017, the New Hampshire House of Representatives proposed a constitutional amendment that would consolidate New Hampshire State Legislative control over school funding and education standards.12 The amendment proposed giving “authority and full discretion” to the New Hampshire House of Representatives and Senate to “define reasonable standards for elementary and secondary public education, to establish reasonable standards of accountability therefor, and to mitigate local disparities in educational opportunity and fiscal capacity.”13 The proposal was ultimately killed in the House.14 Prior to 2017, the New Hampshire Legislature had previously considered a similar constitutional amendment in 201215 and 2015.16 On both occasions, the proposed amendment did not receive enough votes to reach the public as a ballot initiative.17

TENNESSEE

In 2016, a proposed amendment to Article XI, Section 12 of the Tennessee Constitution would have allowed the General Assembly to “provide for the maintenance, support and eligibility standards of a system of free public schools in such manner as the General Assembly may determine.”18 The proposal came after three suits to increase education funding in the state; its goal was to proactively protect against judges requiring a statewide property tax increase.19 The proposal ultimately died prior to being submitted to voters in the 2018 ballot for gubernatorial elections.20

WYOMING

This year, state legislators in both the Wyoming House21 and Senate22 proposed constitutional amendments to counteract successful school finance litigation.23 The Senate proposal would have amended Article 7, Section 9 of the State Constitution to make the legislature responsible for funding “by taxation or otherwise, as the legislature rationally determines necessary together with income arising from the general school funding . . . ”24 It also would have explicitly stated that “[i]t is the duty of the legislature to equitably allocate funding among the school districts in the state in the manner meeting constitutional requirements.”25 The House proposal would have added the following: “No court of the state of Wyoming shall order, enjoin or otherwise require the imposition of any tax or tax increase, nor require any other provision of funding for public schools beyond those means and amounts prescribed by law to carry into effect the provisions of this section.”26 The Senate initially passed its proposal, but the House declined to take action after receiving the proposal from the Senate. Meanwhile, the House proposal died in a committee session.27


  1. Ark. S.J. Res. 5, An Amendment to the Arkansas Constitution Providing That the General Assembly Shall Be the Sole and Exclusive Evaluator of Whether the System of Free Public Schools Satisfies the Arkansas Constitution (Jan. 30 2017) (emphasis added), http://www.arkleg.state.ar.us/assembly/2017/2017R/Pages/BillInformation.aspx?measureno=SJR5.
  2. Ibby Caputo, Proposed Constitutional Amendments Seek to Reshape Education Oversight, Arkansas Blog, Feb. 2, 2017, https://www.arktimes.com/ArkansasBlog/archives/2017/02/02/proposed-constitutional-amendments-seek-to-reshape-education-oversight.
  3. Ark. S.J. Res. 3, The Public Education Partnership Amendment of 2018 (Jan. 26, 2017), http://www.arkleg.state.ar.us/assembly/2017/2017R/Pages/BillInformation.aspx?measureno=SJR3.
  4. Ibby Caputo, Proposed Constitutional Amendments Seek to Reshape Education Oversight, Arkansas Blog, Feb. 2, 2017, https://www.arktimes.com/ArkansasBlog/archives/2017/02/02/proposed-constitutional-amendments-seek-to-reshape-education-oversight.
  5. Ark. S.J. Res. 3, The Public Education Partnership Amendment of 2018 (Jan. 26, 2017), http://www.arkleg.state.ar.us/assembly/2017/2017R/Pages/BillInformation.aspx?measureno=SJR3.
  6. Kansas Association of School Boards, History of Proposed Education Amendments to the Kansas Constitution, https://kasb.org/1110-2/.
  7. Kansas Legislative Research Department, Proposed Amendments to Article 6 of the Kansas Constitution, https://kasb.org/wp-content/uploads/2016/12/KLRDMemoAmendmentsArt6110917.pdf.
  8. Id.
  9. Ky. S. Con. Res. 1604 (2005), https://kasb.org/wp-content/uploads/2016/12/KLRDMemoAmendmentsArt6110917.pdf.
  10. Ky. S. Con. Res. 1608 (2013) (emphasis added), https://kasb.org/wp-content/uploads/2016/12/KLRDMemoAmendmentsArt6110917.pdf.
  11. See, e.g., Jonathan Shorman, New Group Gears Up to Change Kansas Constitution, End Lawsuits Over School Funding, The Wichita Eagle, Mar. 22 2018, http://www.kansas.com/news/politics-government/article206450259.html.
  12. N.H. H.R. Con. Res. 7, Providing That the General Court Shall Have the Authority to Define Standards of Accountability, Mitigate Local Disparities in Educational Opportunity (Jan. 18 2017), https://www.lfda.org/bills/cacr-7-2017.
  13. N.H. H.R. Con. Res. 7, Providing That the General Court Shall Have the Authority to Define Standards of Accountability, Mitigate Local Disparities in Educational Opportunity (Jan. 18 2017) (emphasis added), https://www.lfda.org/bills/cacr-7-2017.
  14. Live Free or Die Alliance, School Funding: Constitutional Amendment, https://www.lfda.org/issues/school-funding-constitutional-amendment.
  15. N.H. H.R. Con. Res. 12, Providing That the General Court Shall Have the Authority to Define Standards for Public Education (2012), https://www.lfda.org/bills/cacr-12-2012.
  16. N.H. S. Con. Res. 3, Providing That the General Court Shall Define Standards and Funding for Public Education (2015), https://www.lfda.org/bills/cacr-3-2015.
  17. Live Free or Die Alliance, School Funding: Constitutional Amendment, https://www.lfda.org/issues/school-funding-constitutional-amendment.
  18. Tenn. H.R.J. Res. 493 (2016) (emphasis added), https://legiscan.com/TN/bill/HJR0493/2015.
  19. Jason Gonzales, Resolution Seeks to Change State Constitution Over Education Funding, The Tennessean, Mar. 7, 2016, https://www.tennessean.com/story/news/education/2016/03/07/resolution-seeks-change-state-constitution-over-education-funding/81264082/.
  20. Tenn. H.R.J. Res. 493 (2016), https://legiscan.com/TN/bill/HJR0493/2015; Andy Scher, Tennessee Lawmakers Push for Sole Discretion Over Public School Funding, Times Free Press, Mar. 16, 2016, http://www.timesfreepress.com/news/politics/state/story/2016/mar/15/tennessee-lawmakers-push-sole-discretion-over-public-school-funding/355412/.
  21. Wyo. S.J. Res. 4 (2018), http://legisweb.state.wy.us/2018/Introduced/SJ0004.pdf.
  22. Wyo. H.R.J. Res. 9 (2018), http://legisweb.state.wy.us/2018/Introduced/HJ0009.pdf.
  23. Doug Randall, Wyoming School Funding Constitutional Amendment Dies, KGAB, Mar. 6, 2018, http://kgab.com/wyoming-school-funding-constitutional-amendment-misses-deadline/.
  24. Wyo. H.R.J. Res. 9 (2018) (emphasis added), http://legisweb.state.wy.us/2018/Introduced/HJ0009.pdf.
  25. Wyo. H.R.J. Res. 9 (2018), http://legisweb.state.wy.us/2018/Introduced/HJ0009.pdf.
  26. Wyo. S.J. Res. 4 (2018), http://legisweb.state.wy.us/2018/Introduced/SJ0004.pdf.
  27. Doug Randall, Wyoming School Funding Constitutional Amendment Dies, KGAB, Mar. 6, 2018, http://kgab.com/wyoming-school-funding-constitutional-amendment-misses-deadline/.

(This article was researched and written by Ashley Dalton, a legal intern at the Center for Educational Equity at Teachers College.)

 

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