State Ex Rel. Miller v. Board of Education

Fromme, J.,

dissenting. The majority have quietly and effectively removed any vestige of authority from local school boards. The constitutional provision (Art. 6, Sec. 5) which states that local public schools “shall be maintained, developed and operated by locally elected boards” is now emasculated. This emasculation is accomplished by the court by the simple declaration contained in Syllabus f6 making Art. 6, Sec. 2 (a) self-executing and by the further holding that “general supervision” of public schools by the state board includes the right to require local school boards to adopt rules to govern the conduct of teachers, students and employees. Heretofore these have been considered matters to be left to the local school board or to the legislature. This is no longer true.

The constitutional provision which directs the legislature to provide for a state board of education with general supervision over public schools is not, in my opinion, a self-executing provision for the intention expressed therein contemplates subsequent legislation to give it effect.

The state of Kansas serves an area containing both urban centers and rural areas. The background and needs of the students and teachers in our individual local schools are varied. The problems arising in the areas of internal control and operation of these educational facilities are best solved by local school boards. The rule with which this court is presently concerned was promulgated by the state board of education and on the surface the rule is innocuous, but it does pertain to matters of local control and operation. The rule, with this court’s present decision, has become the vehicle for placing control of local schools in the hands of the state board. When we approve the state board’s rule making authority in this case the board is assured of the power to control local schools. The local school board in the present case was directed by the state board to adopt rules of conduct for its teach*494ers, students and employees. It was further directed to provide specific procedures for enforcing the rules and to have legal counsel approve the same. When this is accomplished these rules are required to be filed with the state board.

Once “general supervision” by the state board, as mentioned in the constitution, is recognized by this court to include areas pertaining to local management and operation the camel has his head in the tent. The local board’s authority to operate its schools will slowly but surely be crowded into a comer by the state board. The local board’s right of control then becomes permissive, dependent upon how far the state board desires to enter the area of local control. If the state board can require promulgation of rules of local concern, they can require such to be uniform in this state. If such rules are to be made uniform in this state the state board will have to dictate their contents and will do so.

The legislature has already launched itself into the area of general supervision of public schools. As mentioned in the majority opinion the legislature in K. S. A. 72-7513 has authorized the state board of education to adopt guidelines or rules in certain defined areas of “general supervision”. These areas include libraries, text books, courses of study, accreditation of schools, certification of teachers, employees and school nurses. All of these areas of general supervision recognized by the legislature are of statewide interest where uniformity directly affects the overall general quality of education in the state. None are related directly to internal matters of local operation. If the state board is not attempting to dictate matters of local conduct, as it now contends, and if it will be satisfied with such rules of conduct as the local boards see fit to adopt under K. A. R. 91-15-1, why then is the state board not satisfied to rely on K. S. A. 72-7513 (b) as authority for adoption of the present rule. The state board does not do so. Instead it argues, and this court accepts the premise, that the constitutional provision under which the state board is created is self-executing in the area of general supervision of the schools. I cannot agree.

Kansas has a few cases discussing self-executing constitutional provisions. In Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P. 2d 456, the court found the right to work amendment (Art. 15, Sec. 12) to be self-executing. In Higgins it was said:

“It is a settled rule of constitutional construction that prohibitive and restrictive constitutional provisions are self-executing and may be enforced by the courts independent of any legislative action, unless it appears from the *495language of the provision that the enactment of legislation is a requisite to give it effect. . . .” (p. 18)

In accord, see 16 C. J. S. Constitutional Law, § 49, p. 147. The provision of Art. 6, Sec. 2(c) with which we are presently concerned is not a prohibitive or restrictive constitutional provision and in that sense is not self-executing.

In State, ex rel., v. Deck, 106 Kan. 518, 188 Pac. 238, the court discussed self-executing clauses in the context of the recall amendment to the constitution (Art. 4, Sec. 3-5). The general rule is stated as follows: "... A self-executing provision of the constitution is simply a provision which needs no supplementary legislation to make it effective. ...’’(106 Kan. at 521.) The court found certain details of the amendment were self-executing but that the provisions for calling a recall election were not, and in that detail it was said the amendment “must await supplementary legislation to give it potency”. The case clearly recognizes that a constitutional provision may be partially self-executing and partially not self-executing, but it is not controlling authority in the present case. (To the same effect, see 16 C. J. S., Constitutional Law, § 48, p. 143 and 16 Am. Jur. 2d, Constitutional Law, § 94, p. 280.)

In the course of the Deck opinion, the court quoted from 6 Ruling Case Law, at page 61, as follows:

“ ‘In adopting constitutions the people frequently leave to the legislature the enactment of statutes as to detailed matters, in order to make the provisions fully operative. . . . Where constitutional provisions wholly omit the detailed provisions needed to make them effective, the rule is established that they will not be considered as self-executing. As illustrations may be mentioned constitutional commands directed to the legislature to pass suitable laws providing for religious instruction in schools, and to establish election machinery for enacting legislation by the initiative and referendum. It has likewise been held that a constitutional mandate is not self-executing which provides that property should be uniformly taxed, but that it is otherwise as to a provision that the general assembly should levy a capitation tax equal to the tax on property valued at a designated amount. Among other illustrations of mandatory constitutional provisions which are not self-executing may be mentioned those that direct that the fitness of persons to be appointed to public office shall be ascertained as far as practicable by competitive civil service examinations. Such provisions are merely announcements of a general principle clearly requiring legislation for its enforcement.’” (p. 525)

Sections 1, 2 (a) and 2 (b) of Article 6 are all prefaced by the statement, “The legislature shall provide for” and each section clearly requires legislation for enforcement.

*496In State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, 473 P. 2d 97, in discussing die constitutional ban against lotteries, (Art. 15, Sec. 3) this court recognized that while a constitutional provision “. . . may be self-executing, it is not self-defining. That function is judicial in nature, . . .” (205 Kan. at 825) (See also State v. Nelson, 210 Kan. 439, 502 P. 2d 841.) Thus if the provision is self-executing the definition of this somewhat ambiguous term, general supervision, is left to this court.

Perhaps the most interesting Kansas case for present purposes is Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331. That case deals with the provision of Art. 12, Sec. 2 which states that “Dues from corporations shall be secured by the individual liability of the stockholders to the amount of stock owned by each stockholder, and such other means as shall be provided by law; . . .” (Emphasis supplied.)

The court in Woodworth recognized tiiat if die provision was held to be self-executing, the legislature might adopt procedures to grant a remedy to creditors, but if tiiose legislative procedures were inadequate or conflicting with the constitutional provision, the latter would control. In Woodworth it was said:

“. . . If the legislative enactments are not up to the requirements of the constitution, and if the constitution be self-operative to the ends sought to be reached, this court must carry out the mandate of the organic instrument. . . . Although the legislature might rightfully devise a mode of procedure adapted to the end in view, yet, in the lack of such legislative enactment, the constitution, through its self-operative force, would seize upon and appropriate to its purposes such general forms of action as had been already provided for similar cases, . . .” (61 Kan. 573)

Thus, in die present case, if Art. 6, Sec. 2 is self-operative so as to give the state board general supervision of the public schools, then, while the legislature may act, any legislation must be in harmony with tiiat power of supervision and may not detract from that power or limit it in any way. (See also 16 Am. Jur. 2d, Constitutional Law, § 95, p. 280.)

The Woodworth court found the provision was not self-executing, and deemed it only a direction to the legislature. The court said:

“. . . As a rule, constitutional provisions, unless expressed in negative form or possessed of a negative meaning, are not self-asseitive. They usually assume the form of a command to the legislature, and legislative action becomes necessary to give them effect. The one under consideration, is an instance of the latter land. The constitution does not ordain in terms of the present tense the individual liability of stockholders for the debts of corpora*497tions, but it ordains it in terms of the future tense. It declares that ‘dues from corporations shall be secured ’ etc., not that ‘dues from corporations are secured/ When the constitution declares that a right shall be secured or a thing shall be done, it means that it shall be secured, or shall be done, by the legislature. In such case, the constitution places upon the legislature the obligation to carry out its ordinances by appropriate enactment.” (61 Kan. p. 574)

This “present tense — future tense” distinction is relevant to the constitutional provision now under consideration. Art. 6, Sec. 2 provides that “The legislature shall provide for a state board of education which shall have general supervision of public schools, educational institutions and all the educational interests of the state, . . .” (Emphasis supplied) The amendment does not say there shall be a state board of education which has general supervision. Under the reasoning of the Woodworth case, by its use of the future tense the clause requires the legislature to provide for the board and further requires that the legislature give to the board general supervision of the public schools. As such, the clause is not self-executing. It leaves to the legislature responsibility for establishing guidelines for the board’s exercise of general supervision. That the constitution reserves to the legislature ultimate control of the public schools is made clear from the statement in Art. 6, Sec. 1 that “The legislature shall provide for . . . educational, . . . improvement by establishing and maintaining public schools, . . . which may be organized and changed in such manner as may be provided by law.” Under Art. 6, Sec. 6, the legislature has responsibility for financing the state’s educational interests. Under Sec. 5, the legislature must sanction and may review certain contracts of local boards, though they are to be operated under the state board’s general supervision. The legislature cannot possibly perform these constitutionally mandated duties if the state board of education has a power by virtue of the constitution of general supervision of the public schools independent of legislative guidelines.

The reason for giving general supervisory authority to the state board is apparent. The legislature is functionally unsuited to exercise the day-to-day decision making necessary in the supervision of a statewide system of public schools and for this reason a state board of education is logically needed. However, Art. 6, taken as a whole, clearly vests in the legislature the authority to determine by statute the scope of the state board’s general supervision.

*498In 16 Am. Jur. 2d, Consitutional Law, § 98, p. 283, it is stated:

“Since a constitutional provision which depends upon legislative action for its effectiveness is ipso facto not self-executing, it follows that in determining whether a provision is self-executing, the question in every case is whether the language of a constitutional provision is addressed to the courts or to the legislature. . . .”

In 16 C. J. S., Constitutional Law, §54 (d), p. 162, it is said:

“A grant of powers to an officer is usually self-executing. ... A constitutional provision granting the legislature authority to confer specified powers on a commission does not of itself give the commission any powers. . . .”

In the present case the constitutional provision is addressed to the legislature and it pertains ti> powers of a board or commission. Two things stand out clearly in my mind. First, the authority of the state board of education mentioned in the constitution is limited to general supervision of the public schools and any authority encompassed by such reference is not intended to be self-executing. Second, the term “general supervision of publio schools” must now, under the court’s present decision, be defined and limited by this court, not by the legislature.

The majority of this court now decide the authority of general supervision includes the authority to require all local school boards to adopt rules of local conduct to govern their students, teachers and employees, to require the adoption of specific procedures for enforcement of such rules and to require approval of said rules by legal counsel. After reading the court’s decision, I am unable to determine what authority remains in the hands of the legislature and what self-executing constitutional authority resides in the state board of education. This problem will continue to plague not only this court but the legislature as well.

The legislature had previously set forth in K. S. A. 72-8901, et seq., rules of conduct pertaining to students. Does the legislature now have that authority or does it now reside in the state board of education? The legislature has previously outlined specific procedures for the enforcement of rules governing student conduct and authorizing suspension or expulsion. (K. S. A. 72-8902.) Does the legislature now have that authority or does it now reside in the state board of education?

If the state board has this authority to require the local boards to adopt additional rules of conduct to govern students and to provide specific procedures for their enforcement under its self-executing *499constitutional grant it has the ultimate authority in this area. It may be exercised independently of any legislative action.

In Blaine v. Board of Education, 210 Kan. 560, 502 P. 2d 693, this court said:

“Article 6, § 5 of the Constitution of the State of Kansas provides that local public schools shall be maintained, developed and operated by locally elected boards.
“In compliance with the Kansas constitutional mandate the legislature has established a system of local public schools which are placed under the supervision of locally elected boards of education.
“The legislature has authorized boards of education to suspend or expel any student guilty of violating published regulations adopted by the board, and has provided a due process hearing for students suspended or expelled. (K. S. A. 1971 Supp. 72-8901 et seq.)” (Syl. ff 1, 2 and 3.)

The thrust of our present decision raises serious doubts as to the efficacy of our holding in Blaine and will create grave difficulties for the local boards in the future. By holding that the general supervisory power granted iii the constitution is self-executing, and by not being able to define the term precisely, we make it necessary in the future for this court to pass upon the constitutionality of each legislative act and each rule of the state board relating to control and operation of the public schools to determine if they are encompassed in the term “general supervision”.

The ink is hardly dry on our opinion in Brickell v. Board of Education, 211 Kan. 905, 508 P. 2d 996, where this court said:

“Education is the title of Article 6 of our constitution which specifically delegates responsibility for all aspects of the subject to the legislature. . . (p. 913.)

We now have decided the legislature no longer has this full responsibility. Brickell hereafter must be read as holding our constitution delegates responsibility to the legislature for all aspects of the subject, except those which this court may hereafer determine to be in the area of general supervision of public schools. This latter area, under the courts present decision, is now reserved exclusively to the state board of education under the newly declared self-executing provisions of our constitution.

The people of this state had no intention of giving up all control of their local schools to the state board of education when they approved the new constitutional article on education. An intention is clearly expressed in the constitution to have the legislators provide the guidelines for general supervision of the schools. In my opinion the constitutional provision is not self-executing and I would affirm the district court’s judgment.