Twice in the past decade, Alabama voters have rejected amendments to remove a constitutional provision that requires the state to set up separate school systems for white and black students. That provision has long been unenforceable, but many say its presence in the state's founding document is an embarrassment.
The issue came up again Wednesday at a meeting of the Constitutional Revision Commission, a state committee tasked with an article-by-article revision of the Constitution. The commission is just beginning to take up Article XIV, which covers education.
But the rewrite will have to go to voters as an amendment, and commission members still aren't sure how to remove the racist wording without killing their amendment's chances with voters.
"The problem is that everyone is anticipating a lawsuit," said former Gov. Albert Brewer, chairman of the commission.
No one on the commission is a fan of the school-segregation wording, which was written into the document in 1901 by a constitutional convention whose members openly acknowledged their hope to establish white supremacy through law.
That wording is in Section 256 of the Constitution. In 1956, not long after the Supreme Court decision striking down school segregation, the state amended Section 256 to add a statement that "nothing in this Constitution shall be construed as creating ... a right to education."
In 2004, voters weighed in on an amendment that rewrote Section 256 entirely, including the racist wording. Opponents said without the "right to education" ban in place, the amendment would open the door to a court order requiring equal funding of schools. Voters rejected the amendment by a margin of fewer than 2,000 votes.
Last year, lawmakers approved an amendment that would take out the segregation wording but leave the "no right to education" wording in. This time, black leaders opposed the bill, arguing it would slam the door on a right to an education. The amendment failed, getting only 40 percent of the vote.
Brewer said commission members were in a "quagmire" in trying to find wording the voters will pass. He said they remain worried about the chance the wording could lead to a lawsuit seeking equal per-student funding in every district. The Alabama Supreme Court dismissed just such a lawsuit in 2002, without a ruling.
"We've had a suit about this, but we never had a resolution," he said.
The Constitutional Revision Commission on Wednesday began discussing a change that would reduce the section to a simple statement that "the legislature shall establish, organize and maintain" a school system.
Commission member Vicki Drummond, who headed the committee rewriting the education article, noted that the wording didn't deny a right to education — or establish one either. She said commissioners should ignore the fate of past amendments and try to write the best possible wording.
"What do we want, and think ought to be, the law?" she said. "Let's not worry about what happened in the past."
Commission members held no vote on the education wording Wednesday, though Brewer said a vote could come as soon as the commission's next meeting July 1.
Capitol & statewide reporter Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.