The Kansas State Department of Education is questioning whether state lawmakers usurped the agency's authority under the Kansas Constitution by passing a law known as the "Coalition of Innovative Districts Act."
That law sets up a separate board that has authority to grant exemptions for as many as 29 school districts from having to comply with most state laws and regulations governing public schools.
To qualify for an exemption, the districts have to submit a plan showing how they intend to use innovative measures to improve student achievement.
The agency is now seeking an attorney general's opinion about whether that law violates Article 6 of the Kansas Constitution, which gives the State Board of Education authority over, "general supervision of public schools, educational institutions and all the educational interests of the state," except functions delegated to the Board of Regents.
KSDE Request for AG Opinion ( .PDF )
The state board is the governing body over the Department of Education. The board hires the commissioner, who has day-to-day responsibility for managing the department.
"It's risky for us to do this," Education Commissioner Diane DeBacker said today, acknowledging that if Attorney General Derek Schmidt sides with the Legislature on the issue, it could lead to more legislative action in areas that have traditionally been reserved for the state board.
According to Lawrence School Superintendent Rick Doll, there has been no discussion among local district officials or the Lawrence school board about applying for innovative district status.
Innovative schools law
House Bill 2319 was the idea of Sen. Steve Abrams, an Arkansas City Republican who chairs the Senate Education Committee.
It sets up a process whereby school districts can operate as a "public innovative district," which would be exempt from most state laws and regulations by submitting a plan to improve student achievement.
It passed the Legislature in early April and was signed into law by Gov. Sam Brownback on April 22.
The law also sets up a separate board called the Coalition of Innovative Districts to review and approve the applications. At first, the board would consist of the governor and the chairs of the House and Senate Education Committees. Those would be Brownback, Abrams, and Rep. Kasha Kelley, who is also an Arkansas City Republican.
If the coalition board approves the application, it would then go to the State Board of Education which would be required to review and approve it within 90 days, as long as it meets the requirements set out in the bill.
But agency officials say it's not entirely clear which laws and regulations would be waived under the bill. That's because all innovative districts would still have to comply with the Quality Performance Accreditation Act, part of which says that in order to be accredited a district must comply with all other laws and regulations.
Karen Godfrey, president of the Kansas National Educaton Association, the state's largest teachers union, said there is concern that some districts may try to use the law to exempt themselves from collective bargaining requirements, although she said she has not heard of any districts considering that yet.
"The ability of teachers to talk to their districts about working conditions is very important to our members," Godfrey said.
The current language about education was adopted in a constitutional amendment that Kansas voters approved in 1966. Since then, many observers say, there has been an almost constant tug-of-war between the state board and the Legislature over who has the ultimate power to set education policy in the state.
in 1973, the Kansas Supreme Court ruled that the powers of the state board are "self-executing," meaning that the board does not need any further authority from the Legislature to carry out its functions.
Three times since then — in 1974, 1986 and 1990 — the Legislature has proposed constitutional amendments to rein in the state board's power, but voters in the state rejected all three.
The tension came to a head again this year because of the innovative districts law, as well as a failed attempt by the Legislature to block the state board from adopting the Next Generation Science Standards, action the board finalized this week.
In the letter requesting an attorney general's opinion, the agency argues that the law usurps the state board's authority under the constitution by granting the coalition board and individual districts authority to decide which laws and regulations they will comply with.