As advertised, Amendment 4 is a revision that will remove racist language from the state constitution.

Some legal scholars, however, believe the amendment proposed on the Nov. 6 ballot relieves the state Legislature of a constitutional duty to maintain public schools.

Sen. Arthur Orr, R-Decatur, sponsored Amendment 4. He expressed frustration Thursday that opponents did not voice their concerns last year when the bill was in committee.

He said he thinks the argument that Amendment 4 destroys an existing right to a public education is “a stretch. I didn’t intend to wade into this conflict.”

“The bigger picture,” Orr said, “is what kind of message does it send if the amendment is voted down over what I would call arguments between lawyers. It would be a travesty if it gets voted down and the state ends up taking a second black eye.”

Amendment 4 re-authorizes portions of a 1956 constitutional provision designed to thwart desegregation efforts. Under Amendment 4, “nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense.”

Jim Blacksher, a Birmingham lawyer who has litigated the issue of equitable funding for schools, called Amendment 4 “an evil Trojan horse.”

Amendment 4 makes changes to Amendment 111 of the Constitution, enacted in 1956. One court has ruled Amendment 111 is unconstitutional. If Amendment 4 passes, according to Blacksher and others, it would make Amendment 111 constitutional. Amendment 111 purports to end the state’s duty to maintain public schools. Amendment 4 includes the same language.

In 1954, the U.S. Supreme Court ruled — in Brown v. Board of Education — that segregated public schools violated the U.S. Constitution. In Alabama, legislative committees immediately began the task of trying to get around the decision.

The problem they faced was Section 256 of the state constitution, enacted in 1901, which required the Legislature to “establish, organize and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of 7 and 21 years.”

The Legislature had a constitutional duty to maintain public schools, but the Brown decision required those schools to be desegregated.

The solution they came up with was Amendment 111.

Amendment 111 eliminates the Legislature’s duty to maintain public schools. It then sets up a system by which the Legislature can provide public assistance to private schools and tuition vouchers to citizens. It then specifies, in the portion not included in Amendment 4, that parents can elect to send their children to “schools provided for their own race.”

The sole purpose of Amendment 111 was to circumvent the desegregation requirement of Brown v. Board of Education. Committee notes make clear that the elimination of the right to an education was the first step in a plan to distribute tax dollars so children could attend private, segregated schools.

“They knew they couldn’t have segregated schools unless they took away the right to a public education, so that’s what they did,” said Martha Morgan, a professor emerita at the University of Alabama Law School.

In part because of its purpose, Montgomery County Circuit Judge Eugene Reese ruled in 1990 that Amendment 111 was unconstitutional and void. Because it was void, he ruled that the Section 256 guarantee of a public education was good law. He also ruled that the Legislature was maintaining an education system that fell short of the Section 256 requirements.

While the Supreme Court initially ruled the Reese decision was binding on the state, in 2002 it ruled that the court system exceeded its powers when it tried to tell the state how to meet its education mandate. The state never appealed Reese’s decision that Amendment 111 was unconstitutional, and the Supreme Court did not address whether there was a constitutional right to a public education.

In light of this history, the question remains: Does the Legislature have a constitutional duty to “maintain a liberal system of public schools throughout the state”?

Morgan, one of the lawyers involved in the Reese lawsuit, answers that question in the affirmative. She said the Reese decision is binding on the state.

Both the Reese decision and the segregationist purpose, she said, mean Amendment 111 is unconstitutional. Therefore, she said, the public education guarantee in Section 256 is controlling.

Morgan opposes Amendment 4 because it would resurrect Amendment 111 and eliminate the Legislature’s constitutional duty to provide a public education.

“What’s wrong with Amendment 4 is it’s not taking away the paragraph that took away the right to a public education,” Morgan said. “Amendment 4 re-enacts a segregationist law and makes it part of the Constitution again.”

Morgan said Amendment 4 could have been written in a way that would not affect the question of whether there is a constitutional right to a public education. Instead, she said, it answers that question in the negative.

A proposed amendment in 2004 also would have repealed the racist language in Amendment 111, but it added a requirement that the state adequately fund the education system. The 2004 amendment failed. One of its most vocal opponents was former Chief Justice Roy Moore, who argued the amendment would increase taxes.

“Economic developers look at this,” Orr said. “I’ve been told to my face that (the 2004 vote) has been used against us. It’s a serious issue that goes past the borders of our state.”

Alabama Law Institute director Othni Lathram issued Orr an opinion stating Amendment 4 would make no changes in the “rights, funding, implementing or structure of public education in Alabama as it currently stands.”

Asked if Amendment 4 would weaken the argument that Section 256 requires the state to maintain public schools, Lathram demurred.

“I don’t know the answer to that,” Lathram said.

Opponents like Blacksher and Morgan say they favor the elimination of racist language from the constitution. What they oppose is a result that limits the state’s obligation to help the poorest school systems.

Howard Walthall, a professor at Cumberland School of Law and a volunteer with the Constitutional Revision Commission, said the commission did not come up with Amendment 4, but he supports it.

“Sen. Orr decided to get started with this before the commission really got going,” Walthall said.

If Amendment 111 is unconstitutional now, he said, it will still be unconstitutional after Amendment 4 removes the explicitly racist language.

“I don’t think it changes the playing field,” he said.

In 2004, Walthall proposed an amendment — changed by the Legislature before it reached the ballot — that removed racial language from both Amendment 111 and Section 256. By changing both, he avoided any argument that the amendment affected the ongoing question of whether the state has a constitutional duty to maintain public schools.

“Amendment 4 on balance does not remove racial discrimination from the Alabama Constitution,” Blacksher said. “It restores a tool of massive resistance to school desegregation by reinforcing Amendment 111’s destruction of the Legislature’s duty to provide public schools.”

Aside from Alabama, Wyoming is the only state whose constitution does not expressly require the maintenance of public schools.

The Constitutional Revision Commission will consider the entire Education Article of the Constitution, including Amendment 111, in 2013.

Monday

A closer look at Amendment 1, which deals with Forever Wild, and Amendment 11, which will directly affect Lawrence County.