Groene, 112119 NEAGO, AGO 19-14

Docket Nº:AGO 19-14
Case Date:November 21, 2019
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...

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