Request By:
Robert Sherman, Director
Legislative Research Commission
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Jennifer L. Carrico, Assistant Attorney General
Opinion of the Attorney General
SUMMARY
The Legislative Research Commission requests the Attorney General's Opinion on whether the General Assembly may enact legislation authorizing referenda on local school curriculum. Since Section 60 of the Kentucky Constitution permits the General Assembly to authorize referenda on "matters pertaining to common schools," the legislature may enact a statute permitting referenda on school curriculum. However, the General Assembly may not repeal existing legislation in the area of education by implication, and the statute must be constructed carefully so as to meet constitutional requirements ensuring equal protection of citizens and prohibiting special or local legislation. Most importantly, if the General Assembly intends to define "matters pertaining to common schools" with specificity for a single purpose, the General Assembly is embarking on an endeavor with little or no legal precedent.
ANALYSIS
The statute described by the LRC provides criteria by which matters of local school curriculum are placed on the ballot by petition. If the petition criteria are met, the proposed statute requires a referendum on the proposed curriculum in an election. The referendum would be in the form of a question describing the curriculum addition, change or deletion. Voters would respond to the question in the form of a "yes" or "no" answer. If the voters approve the change by referendum, the statute directs the local school board to direct the local school decision-making council to determine the manner in which the curriculum material is presented in the school district. In other words, in certain circumstances, this proposed statute removes authority of local school councils to determine school curriculum and places it squarely in the hands of the electorate.
Public education in Kentucky is the province of the Commonwealth. Board of Trustees, Newport Public Library v. City of Newport, 300 Ky. 125, 187 S.W.2d 806 (1945) ("education is not regarded as a local matter, but as a state governmental duty"); Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473, 35 S.W.2d 311 (1931) ("public education has always been regarded as a matter of state concern"). Section 183 of the Kentucky Constitution places responsibility for public education in the legislature by requiring that the General Assembly "provide for an efficient system of common schools . . . in connection with other branches of public education. " KY. CONST. § 183. According to this provision, Kentucky courts hold that "a board of education in Kentucky is performing a function of the state in operating the public schools as state institutions." City of Louisville v. Board of Education, 154 Ky. 316, 157 S.W. 379 (1913).
According to its Constitutional mandate to provide efficient public schools, the General Assembly adopted comprehensive legislation in 1990 restructuring public education in Kentucky. KY. REV. STAT. ANN. Chapter 158-160 (Baldwin 1998). The purpose of this legislation was to "decentralize decision-making authority" so as to involve all participants in the public school system. Board of Educ. of Boone County v. Bushee, Ky., 889 S.W.2d 809 (1994). To that end, the legislature identified three groups participating in school decisions and delegated to each "its own independent sphere of responsibility." Id. The three groups identified by the legislature are: (1) state government, (2) local school boards and (3) local school councils. Id.
Under this new framework, the General Assembly delegated "authority and responsibility for developing their own curriculums" to local school councils. Id. at 813; See KY. REV. STAT. ANN. Ch. 158.6451. This specific delegation transferred the authority to determine school curriculum from the Kentucky State Board of Education to local school councils. The 1990 legislation provides that the State Board of Education is authorized only to recommend a model curriculum to local school councils. KY. REV. STAT. ANN. Ch. 158.6451(4). The only limitation on local school councils is that the curriculums they adopt meet primary statewide educational goals established by the State Board of Education. Bushee, 889 S.W.2d at 813.
The statute described by the LRC and discussed in this opinion that permits referenda on local school curriculum significantly revises this legislative framework. Specifically, in certain circumstances, the proposed statute withdraws authority to develop local school curriculum from the local school councils and places it squarely in the hands of the electorate. Thus, the proposed statute's impact on the current legislative framework governing public education in Kentucky is substantial.
Initiatives and referenda in Kentucky are strictly prohibited by Section 60 of the Constitution, which states in relevant part: "No law . . . shall be enacted to take effect upon the approval of any other authority other than the General Assembly . . . ." Id. (emphasis added). This comprehensive surrender of the people's direct vote reflects their mandate that the General Assembly exercise the legislative power of the Commonwealth. See e.g. Mueller v. Thompson, 137 N.W. 20, 22 (Wis. 1912) (regarding constitutional provisions nearly identical to Kentucky's, the Wisconsin court stated that "in thus limiting power to make law to the representative bodies the people, by necessary implication, parted with authority to do so directly").
The people's delegation of practically all legislative powers to the General Assembly in the Kentucky Constitution is unique in that many state constitutions reserve powers of initiative and referendum to the people. For example, Michigan's constitution states that "the people reserve to themselves the power to propose Legislative measures, resolutions and laws; to enact or reject the same at the polls independently of the legislature . . . ." MICH. CONST. art. II, § 9. Similarly, Ohio's constitution provides that "the people reserve to themselves the power to propose to the General Assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote . . . ." OH. CONST. art. II, § 1f. See also S.D. CONST. art. III, § 1 ("the people expressly reserve to themselves the right to propose measures . . . and also the right to require that any laws which the legislature may have enacted shall be submitted to a vote of the electors of the state . . . ."). Thus, when comparing the Kentucky Constitution to other states, it appears that Kentuckians envisioned for themselves a narrow role in the legislative function.
However, the people reserved powers of initiative and referendum in certain areas. These exceptions also are contained in Section 60 of the Constitution. The exceptions include regulating alcoholic beverages; bridges; public roads, buildings or improvements; fencing and stock; the homeless; local matters; and any other matter expressly provided in the Constitution. Id. Relevant to this opinion, one of these limited exceptions authorizes the General Assembly to permit referenda on "matters pertaining to common schools." This specific exception in Section 60 states:
No law, except as relates to . . . matters pertaining to common schools . . . shall be enacted to take effect upon the approval of any other authority other than the General Assembly, unless otherwise expressly provided in this constitution.
KY. CONST. § 60 (emphasis added). This language means that the General Assembly may seek public approval of legislation in the area of public education. Cf. Board of Education of Warren County v. Fiscal Court of Warren County, Ky., 485 S.W.2d 752, 756 (1972) (stating in concurrence that "the legislature could have subjected every decision of the school board to an unlimited referendum by the citizens who elected it, or it could have denied the referendum device entirely"); Sherrard v. Jefferson County Bd. of Educ. v. 294 Ky. 469, 171 S.W.2d 963 (1942) ("common schools" are defined as "public or free schools maintained by the state at public expense").
There is no question that the Kentucky Constitution requires the General Assembly to provide efficient public education. However, to accommodate and encourage inevitable public participation, the Kentucky Constitution also authorizes the legislature to permit referenda on matters pertaining to public schools. In other words, although the General Assembly controls public education in the Commonwealth, it may subject its effort in that area to a direct vote of the electorate. Therefore, since Kentuckians expressly reserved authority to legislate in the area of public schools in the Constitution, the Attorney General concludes that the General Assembly is authorized to enact a statute permitting referenda on public school curriculum.
Although the Constitution authorizes the General Assembly to enact legislation permitting referenda on matters pertaining to public schools, this authority is subject to extremely important limitations. To begin with, the General Assembly must comply with equal protection requirements in Sections 1, 2, and 3 of the Constitution. Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (1989). Also, the General Assembly must construct its statute to ensure it does not amount to local or special legislation under Sections 59 and 60 of the Constitution. 1
Similarly, repealing prior-existing legislation by implication is not favored by Kentucky courts. Preston v. Floyd/Johnson County Pilot's Assn. Et al., 867 S.W.2d 474 (Ky.App. 1993). This means that the General Assembly clearly and specifically must amend or alter the present legislative framework to reflect the new method of determining curriculum. Most importantly, if the General Assembly intends to define "matters pertaining to common schools" with specificity for a single purpose, the General Assembly is embarking on an endeavor with little or no legal precedent.
CONCLUSION
Section 60 of the Kentucky Constitution, which authorizes the General Assembly to permit referenda on "matters pertaining to common schools," authorizes the General Assembly to permit referenda on local school curriculum. However, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. Most importantly, there is no legal precedent to guide the General Assembly in defining "matters pertaining to common schools" specifically for this single purpose.
Footnotes
Footnotes
1 The Kentucky Department of Education argues that the proposed statute is prohibited by language in Section 60 stating: "No law shall be enacted granting powers or privileges in any case where the granting of such powers and privileges shall have been provided for by a general law. " The Department interprets this language to prohibit the General Assembly from granting powers "when such powers have already been addressed by general law ." However, Kentucky case law indicates that this language in Section 60 means that local or special legislation is prohibited where the subject is one of general application. Cf. Tri-City Turf Club, Inc. v. Public Protection and Regulation Cabinet, 806 S.W.2d 394, 397 (Ky. App. 1991); United Dry Forces v. Lewis, 619 S.W.2d 489, 491 (Ky. 1981). Therefore, for the purpose of this opinion, the Department's interpretation of Section 60 is rejected.