The Kansas House on Saturday narrowly defeated a bill that almost certainly would have resulted in a costly – and potentially embarrassing, for the Legislature – lawsuit over who controls the content and standards for public education.

House Bill 2391 was forced onto the House and Senate floors in the final days of the session. Its purpose was to put the brakes on public schools implementing the Common Core standards in reading and math, and to completely block the State Board of Education from adopting the proposed Next Generation Science Standards.

It also would have set up a legislative oversight committee to review those standards and make recommendations to next year’s legislature about whether any of those standards should be allowed to continue.

In some people’s eyes, that would have created a broad and sweeping new power of the legislature to block or usurp the constitutional authority of other branches of government – in this case, the elected Kansas Sate Board of Education.

In the gallery above the Senate chamber, where the bill passed, 24-12, and in the hallways outside, three State Board of Education members told me they had already begun talking among themselves about challenging the bill in court if it became law. The exact nature of such a legal challenge was yet to be determined, but board member Janet Waugh, a Kansas City Democrat, said: “Our next meeting (June 11) should be interesting.”

And in the gallery above the House chamber, where the bill narrowly failed, 55-58, Education Commissioner Diane DeBacker acknowledged some sort of legal action would be necessary.

It takes 63 “yes” votes to pass a bill in the House. Twelve members were absent, but had they been present it’s entirely possible the bill would have been approved. When asked about the bill, in between the Senate and House votes, Gov. Sam Brownback would not indicate whether he would sign it, saying only, “Let’s wait and see what happens in the House.”

DeBacker said she believed the real issue behind the bill was not Common Core, but rather the new science standards, which the State Board is expected to vote on June 11. She also wondered aloud whether the board shouldn’t ignore the law, if it passed, and adopt the science standards anyway, in effect daring the legislature to try to stop them.

Had the law passed, and had the state board stood up to the challenge, it would have set up a dramatic face-off between the legislature and state board over who has constitutional authority to set educational standards. But it’s a contest that has already been litigated in Kansas – several times, in fact – and most legal authorities agree it is virtually certain which side would have won.

Article 6 of the Kansas Constitution gives the legislature authority of “establishing and maintaining public schools,” but it gives the state board authority to supervise how they are operated.

Article 2 gives the legislature what is commonly called “the power of the purse” – the authority to appropriate money. But it does not give the legislature authority to use that power for unconstitutional purposes, such as de-funding another branch of government or blocking that branch from exercising its own constitutional duties.

That issue was litigated in 1973 when the Kansas Supreme Court handed down a landmark decision interpreting Article 6 of the Constitution. The case, State ex rel. vs. Board of Education, commonly known as the Peabody, established that the Constitution gives the state board “self-executing” powers, meaning the board doesn’t need any further legislative authority to exercise the power granted to it by the Constitution:

“The state board of education authority to exercise general supervision of the public schools, educational institutions and educational interests of the state . . . is self-executing in effect,” the Court ruled. “Where a constitutional provision is self-executing the legislature may enact legislation to facilitate or assist in its operation, but whatever legislation is adopted must be in harmony with and not in derogation of the provisions of the constitution.”

The opinion itself does not seem to have been published on the internet, but it is explained in a 1983 attorney general’s opinion. It also is referenced in other Supreme Court cases, including USD 443 vs. State Board of Education (1998). And it’s discussed in the 2001 “History of Kansas Education,” by Sherrill Martinez and Lue Ann Snider of the Kansas State Department of Education

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