Montana Constitution’s school terms fail the test

In 2030, Montanans will decide whether to hold a new state constitutional convention. This column is the fourth in a series designed to provoke discussion in advance of this important decision. Previous columns examined the poor drafting of the constitution’s university and environmental provisions. Poorly drafted constitutional language encourages lawyers and judges to “interpret” it in ways that take power away from the people and their elected representatives.

This column outlines a few of the many defects in the document’s provisions governing K-12 public education. They appear in Article X.

Article X, Section 6 bans aid to “sectarian” institutions. The term “sectarian” traditionally is a code word mandating religious discrimination. At the 1972 convention, the delegates were warned not to insert it. But they did so anyway, and the U.S. Supreme Court has ruled that Section 6 violates the U.S. Constitution’s First Amendment. So that section is now a nullity.

Article X, Section 1(1) states: “It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.”

That sounds great—until you realize that the two sentences conflict with each other. “Equality of opportunity” might be fine for many students. But it takes more to meet the “full educational potential” of a gifted or special-needs student. For example, the only way to meet the “full educational potential” of many students is to adopt a school choice program that includes both public and private providers.

Another problem is measuring “equality of opportunity.” The Montana Supreme Court has focused on equality of funding. But in the real world, funding levels are relatively unimportant to educational quality. Despite denial from special interests, a massive amount of empirical evidence—including from liberal researchers—shows that beyond a certain level spent everywhere, funding doesn’t correlate much with educational quality. A recent Mountain States Policy Center study reached the same conclusion.

Non-funding factors, such as leadership quality, goals, and teaching methods, are far more important.

Article X, Section 1(2) says, “The legislature shall provide a basic system of free quality public elementary and secondary schools.” This sentence invites a host of questions: What does “basic” mean? What does “quality” mean? Presumably, it means good rather than bad quality. But how much good quality is constitutionally sufficient?

The courts have no way of objectively enforcing language like this, so it simply does not belong in a constitution. It would be sufficient to require the legislature to provide for educational opportunity and give it the power to do so.

Still another problem in Article X is that it creates three kinds of entities to oversee public schools, but it is unclear which does what. Section 8 reads, “The supervision and control of schools in each school district shall be vested in a board of trustees . . . ” Does that give school trustees power to overrule legislative decisions in the same way as the state supreme court has given the regents power to overrule legislative decisions for state university campuses? The constitution doesn’t say.

But the constitution does include Section 9(1), which partly contradicts Section 8. It assigns the state board of education responsibility for long-range planning and for coordinating and evaluating school policies and programs. As if that weren’t enough, Section 9(3) gives the state board of public education “general supervision over the public school system.”

What a mess!

Because of restrictions the Montana Supreme Court has placed on the amendment process, only a new convention can propose a way out of this chaos.