(Baton Rouge – July 18, 2011) A Baton Rouge District Court judge has ruled that a 2010 legislative act allowing the state board of education to waive laws for local school boards is unconstitutional.
The so-called “Red Tape Reduction and Local Waiver Empowerment Act,” which was one of Gov. Bobby Jindal’s signature bills last year, violates the state constitution’s “clear separation of powers,” according to today’s ruling by 19th Judicial District Judge R. Michael Caldwell.
The lawsuit challenging the constitutionality of the act was filed by the Louisiana Federation of Teachers. In response to today’s decision, LFT President Steve Monaghan said the union filed the suit “as a matter of strong principle and out of respect for the law.”
“This is a good day for the rule of law,” Monaghan said. “As we argued consistently before every committee that heard the bill, we believe that this act is an unconstitutional delegation of legislative authority that diminishes the public’s understanding and respect for law by equating law to red tape. The legislature simply does not have the right to hand off its responsibility to another branch of government.”
If allowed to stand, the bill would permit local superintendents, with local school board approval, to ask the Board of Elementary and Secondary Education for a waiver of virtually any law or policy governing public education. The bill was amended during the legislative proceedings to allow teachers in affected schools to vote on the change.
BESE is a policy-making body comprising 11 members. Eight are elected, and three are appointed by the governor.
In arguments today, LFT General Counsel Larry Samuel said that the act “gives BESE the right to say what laws local school boards may have to follow.”
But citing legal precedents, Samuel said “Just because the legislature gave that authority to BESE does not mean it is constitutional.”
“They call it the Red Tape Reduction Act,” Samuel said. “To me, it’s the ‘if you don’t like the law you don’t have to follow it act’.”
Arguing on behalf of BESE, Assistant Attorney General Angelique Duhon Freel said that the LFT lawsuit is premature because no school boards have yet requested a waiver.
That argument, Samuel said, is irrelevant. “The fact is they can seek a waiver and be awarded one,” he said. “That makes the law unconstitutional on its face.”
In summing up his decision, Judge Caldwell said the legislature “cannot delegate to the right to BESE to waive or suspend Title 17 (the section of state law dealing with public education).”
Insofar as the act grants this right, it is unconstitutional in my opinion,” the judge said. “Allowing BESE to waive or suspend law is a violation of Article 3, Section 12(b) of the constitution.”
Freel said that the state will appeal Judge Caldwell’s decision to the State Supreme Court.