Topeka ? Members of the Kansas State Board of Education said Tuesday they believe a new state law that allows some districts to be exempt from many state laws and regulations is unconstitutional because it circumvents their authority to supervise public education.

At the same time, though, they also said they plan to work with the first two school districts that have submitted plans for improving student outcomes by exempting themselves from many state laws and regulations that govern public schools.

“My concern personally is, we all know public education is under attack,” said board member Carolyn Campbell, D-Topeka, whose district includes Lawrence. “And it is very sad when we have people (in the Kansas Legislature) not focusing on our children and our educators.”

Board member Jim McNiece, R-Wichita, said he also looked forward to working with the districts.

“But on the other hand, I’m also a steward for the state of Kansas, and I need to be thinking, do we want to do this because what’s the next board going to have to deal with,” McNiece said.

Those comments came after the superintendents of the Concordia and McPherson school districts asked the board for its blessing on their plans for new initiatives under the Public Innovative School districts Act, which lawmakers passed last year.

Initially, it allowed up to 29 school districts – or 10 percent of the total – to be designated as “innovative” districts and become exempt from many state laws and regulations governing public schools, if they can submit a plan that shows how doing so would help them improve student achievement.

On Sunday, though, the Legislature passed a school finance bill that includes language expanding the program by allowing even more districts to take part.

The law also sets up a commission outside the State Board of Education to decide which districts can receive that designation. The first two applications were approved by a committee composed of Gov. Sam Brownback and the chairs of the House and Senate Education Committee. Thereafter, the committee will consist of representatives from the districts that have already been designated.

Nothing in the law gives the state board authority to approve or disapprove of the plans, but the two superintendents said they wanted to work with the state board anyway.

“I think it is a difficult position that you are in when another body may challenge the constitutionality of this body,” said McPherson Superintendent Randy Watson. “We’re in the middle of that. … Our hope is to bridge that.”

McPherson’s plan mainly involves using different types of tests other than the state assessments to measure whether students there are meeting or exceeding state academic standards.

McPherson also plans to exempt itself from teacher licensure requirements to attract more career and technical education teachers, as well as exemptions from certain Kansas Board of Regents regulations so that students who take algebra in middle school can have that count as high school credit under the state’s qualified admissions standards.

Concordia’s plan includes establishing a new “career pathway” curriculum that focuses on training in the wind and other alternative energy industries.

When the bill passed last year, the State Department of Education asked for an attorney general’s opinion as to whether the Legislature had constitutional authority to enact the law.

Attorney General Derek Schmidt did not responded to that request, saying he could not comment until after the school finance lawsuit was resolved. After the Kansas Supreme Court issued an opinion in that case March 7, the department asked again for an opinion, but Schmidt so far has not responded to that request either.

Board member Ken Willard, R-Hutchinson, said he didn’t think that should stop the board from giving its blessing to the plans of McPherson and Concordia schools.

“We’re waiting for an attorney general’s opinion that, in my mind, probably may not even come,” Willard said. “He’s under no obligation to respond or issue an opinion, so to hang our hat on that as a reason for not blessing seems to me to be just a convenient way to shut it down.”

But board chairwoman Jana Shaver, R-Independence, said she would ask the board’s own attorney, Mark Ferguson, to give an opinion about the constitutionality of the law.

The board is expected to revisit the issue next month.