Senator Mike Groene
AGO 19-14
No. 19-014
Nebraska Attorney General Opinion
State of Nebraska office of the Attorney General
November 21, 2019
SUBJECT:
Constitutionality of Legislation Distributing Future Tax
Equity and Educational Opportunities Support Act State Aid
Funding Adjustments Proportionately Across All School
Districts
REQUESTED
BY: Senator Mike Groene Nebraska State Legislature
WRITTEN
BY: Douglas J. Peterson, Attorney General, Leslie S. Donley,
Assistant Attorney General
You
have requested an opinion from this office with respect to
the constitutionality of proposed legislation which would
amend the Tax Equity and Educational Opportunities Support
Act, Neb. Rev. Stat. §§ 79-1001 to 79-1033 (2014,
Cum. Supp. 2018, Supp. 2019) ("TEEOSA"). You
indicate in your request letter that when the Legislature
believes it necessary to annually adjust the TEEOSA formula,
individual formula variables are
"tweaked."
1 You indicate that this process adjusts the
formula to generate the total amount of state aid the
Legislature will fund.
PROPOSED
LEGISLATION
As we
understand it, your proposed legislation would amend the
TEEOSA formula to provide for "distributions of any
future TEEOSA state aid funding adjustments made by the
Legislature proportionally across all school districts."
The legislation "would alter the TEEOSA formula to
increase the amount of state aid to all school
districts," resulting in "property tax relief
through a lowered local property tax request." One key
component of your proposed legislation is "providing]
equitable state funding to all school districts, with the
greater of a per student foundation aid or 33.3% of a school
district's formula needs."
2 You indicate that specific
provisions may be added to TEEOSA to address how the formula
works in the event of a legislative adjustment, i.e., the
formula will be left intact, while the total amount of the
adjustment is divided proportionally across the school
districts. By way of example, you indicate that the
preliminary calculation of state aid is $1.5 billion.
However, the Legislature determines that $1.425 billion is
"adequate to fund the free instruction in Nebraska's
common schools . ..." A new statute would be added to
TEEOSA to divide the difference—$75 million [or 5
percent of $1.5 billion]— proportionally across all
districts by reducing each district's preliminarily
calculated state aid by 5 percent. In addition, to ensure
that funding is adequate, a new section would be added to
allow local school boards, by a supermajority vote, an annual
budget exception to their statutory levy and revenue limits
to recoup up to 75 percent of any reductions in their state
aid due to legislative action.
You
have asked for our opinion as to the following questions:
I. Do these proposed provisions added to Nebraska's
public school funding formula . .. adhere to "[t]he
Legislature shall provide for the free instruction in our
common schools" provision of Neb. Const, art. VII,
§ 1?
II. Furthermore, do the proposed provisions comply with the
equal protection clauses under Neb. Const, art. I, § 3
and U.S. Const. Amend. XIV, §1?
Our
response to each of your inquiries is set out below.
DISCUSSION
I.
Free Instruction Clause
Restated,
your proposal would reduce every school district's state
aid funding by an amount equal to the percentage of any
legislative adjustment to the preliminary calculated amount
of state aid funding, A school district will be able to
recover 75% of the reduction by a supermajority vote of its
governing body. While you have not expressly articulated in
what manner your proposed legislation might contravene the
free instruction clause, it appears to us your concerns
relate to the adequacy of the funding in those
instances when the Legislature adjusts the preliminary
calculated amount of state aid.
The
free instruction clause provides, in pertinent part, that
[t]he Legislature shall provide for the free instruction in
the common schools of this state of all persons between the
ages of five and twenty-one years.
Neb. Const, art. VII, § 1.
Beginning
with Affholder v. State, 51 Neb. 91, 70 N.W. 544
(1897),
3 the Nebraska Supreme Court has on several
occasions considered the subject of "free
instruction" in Nebraska's common schools. In
Affholder, the plaintiffs sued the local school
board to require the school district to furnish textbooks to
the children attending the school in accordance with an 1891
act. The school board argued that the act in question
violated the "same subject" rule in Neb. Const,
art. III, § 11 [now art. III, § 14], since the
title of the act referenced "textbooks," but
another section of the act required the provision of all
"school supplies." Id. at 92, 70 N.W. at
545. The court considered whether...
