A lot has already been written by both sides about proposed constitutional Amendment 2. It will come as no surprise that I oppose the amendment, given my position as Executive Director of the Kentucky Education Association. But the reasons for my opposition are not as predictable as you might imagine.
Certainly, the proposed amendment is dangerous for public schools. If it passes, the legislature will undoubtedly redirect substantial public funds away from Kentucky’s public schools, which will undermine the educational prospects of 90% of the school age population in the state. That is reason enough to oppose it.
But as an attorney, I believe the real danger of the amendment is much bigger than its potential impact on public school funding. The real danger of Amendment 2 is that it releases the legislature from all accountability to the public for whatever education funding policy it might impose. Why do I say that? Because the language of the amendment includes two of the most dangerous words in legal drafting: “may” and “notwithstanding.”
The word “may” gives permission to act but does not require action. That means the legislature could decide, year to year, budget cycle to budget cycle, whether it wants to invoke the power that voters will give them if the amendment passes. Whether public schools are adequately and equitably constitutionally funded or whether public money is redirected to private schools will be entirely up to the whim of the majority of both chambers of the General Assembly. They might fund public schools in compliance with the constitution, they might not. They might fund private schools by some yet undefined process, they might not. And whatever their decision will be, that one word – “may” – means that whichever side feels aggrieved by the decision will have no way to hold the legislature accountable because the legislature won’t be obligated to act at all.
Even more insidious is the word “notwithstanding.” This means “regardless” or “in spite of.” Regular readers of the state budget documents know that it’s one of the General Assembly’s favorite words, because with those four syllables they routinely relieve themselves of legal obligations with which they would otherwise have to comply. Don’t want to give public employees the 5% raises required by statue? Simply “notwithstand” that language in the budget document. Prefer not to fully fund the public pension systems even though the laws on the books require it? Just “notwithstand” that, too. It’s a “do as I say, not as I do” approach to governing that should be much more embarrassing to them than it seems to be.
The legislature ignoring its own statutes is bad enough. But Amendment 2 asks the public to give politicians in Frankfort permission to “notwithstand” seven sections of the Kentucky Constitution; that’s something else entirely. The constitution isn’t the legislature’s creation; it belongs to the people of this state. Its provisions set forth how we, the people, will allow ourselves to be governed. Through that document, the public imposes limits on legislative, executive, and judicial authority to avoid government overreach and to ensure accountability to the people. By asking us to give them permission to “notwithstand” seven sections of the Kentucky Constitution, the General Assembly is asking us to give them permission to ignore our clearly articulated instructions to them whenever they want, in whatever way they want.
We really shouldn’t be surprised by this; the legislature has shown its disdain for the Kentucky Constitution time and again by passing laws they know are unconstitutional and daring stakeholders to challenge them in court. We should all be deeply offended by this overt power play.
By including “notwithstanding” as the last word of the proposed amendment, the legislature is telling us that they don’t want to hear from us anymore and don’t want to answer any questions about what they are doing. Two of the seven sections they want to “notwithstand” – Sections 171 and 184 – limit their ability to impose new taxes and require those decisions to be submitted directly to the voters for approval through a referendum.
Approving Amendment 2 would mean that the legislature’s taxing authority won’t be limited by those constitutional provisions and that they won’t have to ask the people whether we consent to the taxes they could impose. If Amendment 2 passes, legislators would also be able to pass special legislation that would affect some areas of the state but not others (Sections 59 and 60), would no longer be responsible to establish an efficient system of common schools (Section 183), could use public education funds for other purposes (Section 186) and could use public money—taxpayer money—to fund private religious schools (Section 189). Is giving politicians in Frankfort that level of autonomy really what we want?
Amendment 2 is dangerous to all the people of the commonwealth. If this amendment passes, anything the legislature might decide to do—or not do—regarding education funding will be de facto constitutional. Challenging their decisions in court will be extremely difficult if not impossible because their response will essentially be, “You told us that we could.” And unfortunately, they won’t be wrong.
The reality is that the language of Amendment 2 promises everything but guarantees nothing. Even voters who might be inclined to support public funding for private schools should be extremely wary of the implications of this proposal. It matters whether our government answers to us or only answers to itself. I strongly encourage everyone to Vote NO on Amendment 2.
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Written by Mary Ruble, who is executive director of the Kentucky Education Association.
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