AGO Opinion 97029
Extent of Legislature's Power, Under Article VII, Section 1 of the Nebraska Constitution, to Provide for Free Instruction in the Common Schools
DATE: May 21, 1997
SUBJECT: Extent of Legislature's Power, Under Article VII, Section 1 of the Nebraska Constitution, to Provide for Free Instruction in the Common Schools
REQUESTED BY: Senator Floyd P. Vrtiska
Nebraska State Legislature
WRITTEN BY: Don Stenberg, Attorney General
Lauren L. Hill, Assistant Attorney General
You have requested an opinion from this office regarding
the extent to which the Legislature is limited in exercising its
duties under Article VII, Section 1 of the Nebraska Constitution.
Specifically, the question you have posed is whether "Article VII
or any other section of the Nebraska Constitution limit[s] the
Legislature's power to establish the duties and obligations of
local school boards or to restrict their authority to set budgets
or levy taxes to provide the financial support for those budgets."
As we have not been advised of any legislation prompting your
inquiry, our response is necessarily broad and is not directed to
specific legislation. See Op. Att'y Gen. No. 96-003 (January 11,
1996); Op. Att'y Gen. No. 95-004 (January 18, 1995); and Op. Att'y
Gen. No. 82-214 (March 15, 1982).
Pursuant to the Nebraska Constitution, the "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. Our analysis of this provision
is governed by several canons of constitutional construction which
have been adopted by the Nebraska Supreme Court. First, we are
bound by the cardinal rule that the state Constitution must be
applied and enforced as it is written. State ex rel. Spire v.
Conway, 238 Neb. 766, 472 N.W.2d 403 (1991). Next, the provisions
of the Constitution must be read as a whole. Jaksha v. State, 222
Neb. 690, 385 N.W.2d 922 (1986). Finally, because the Nebraska
Constitution "is not a grant but, rather, a restriction on
legislative power, . . . the Legislature is free to act on any
subject not inhibited by the Constitution." State ex rel. Stenberg
v. Douglas Racing Corp., 246 Neb. 901, 905, 524 N.W.2d 61, 64
(1994); State ex rel. Creighton University v. Smith, 217 Neb. 682,
353 N.W.2d 267 (1984); Cf. Lenstrom v. Thone, 209 Neb. 783, 311
N.W.2d 884 (1981). In so acting, however, the court has
established that "[t]he people of the state, by adopting a
constitution, have put it beyond the power of the [L]egislature to
pass laws in violation thereof." State ex rel. Randall v. Hall,
125 Neb. 236, 243, 249 N.W. 756, 759 (1933); see also State ex rel.
Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995).
In accordance with these guidelines, we now address your
inquiry. The supreme court has specifically determined that the
Article VII, § 1 provision is not self-executing given that
subsequent legislation was clearly necessary to carry the provision
into effect. State ex rel. Shineman v. Bd. of Education, 152 Neb.
644, 42 N.W.2d 168 (1950). Therefore, the court has concluded that
"the method and means to be adopted in order to furnish free
instruction to the children of this state have been left by
[Article VII, § 1] to the Legislature." Id. at 648, 42 N.W.2d at
170; Affholder v. State, 51 Neb. 91, 70 N.W. 544 (1897). The
Legislature has elected to execute Article VII, § 1 by creating a
statewide system of school districts which are governed at the
With regard to the powers and duties of local school
districts, the supreme court has consistently held that "[a] school
district in this state is a creature of statute and possesses no
other powers than those granted by the Legislature." School Dist.
of Seward Educ. Ass'n v. School Dist. of Seward, 188 Neb. 773, 779,
199 N.W.2d 752, 757 (1972) (quoting State ex rel. School Dist. v.
Bd. of Equalization, 166 Neb. 785, 90 N.W.2d 421 (1958); see also
School Dist. of Waterloo v. Hutchinson, 224 Neb. 665, 508 N.W.2d
832 (1993); Banks v. Bd. of Educ. of Chase County, 202 Neb. 717,
277 N.W.2d 76 (1979). Therefore, it is clear that "[t]he
Legislature has plenary power and control over school districts,
including provision for the appointment or election of governing
bodies thereof. Consequently, [the Unicameral] may provide
limitations on any authority to be exercised by a school board."
School Dist. of Seward Educ. Ass'n, 188 Neb. at 779, 199 N.W.2d at
757; Farrell v. School Dist. No. 54, 164 Neb. 852, 84 N.W.2d 126
"[T]he term `free instruction' in right to education
cases [is] pertinent to the issue of constitutionality of school
financing, including collection of fees, tuition, and taxes."
Kolesnick v. Omaha Public School Dist., 251 Neb. 575, 581, ____
N.W.2d ____ (1997). The parameters within which the Legislature
may act under Article VII, § 1 have been delimited in several
supreme court decisions.
In Peterson v. Hancock, 155 Neb. 801, 54 N.W.2d 85
(1952), the court invalidated a legislative enactment which had
sought to establish statutory incentives for consolidation or
reorganization of local districts. The statutes at issue imposed
a "blanket mill tax levy" on all taxable property located in
elementary school districts, which levy was in addition to the
regular school levy. Id. at 804-805, 54 N.W.2d at 88. Although
most of the revenue raised by the blanket mill tax levy came from
elementary school districts enrolling fewer than five students,
only those districts which enrolled at least five students received
revenues from the tax. Id. at 805-806, 54 N.W.2d at 89. In its
review of that statutory finance formula, the Peterson court
acknowledged the Unicameral's broad authority under Article VII,
§ 1, but also determined that when enacting legislation under that
provision, "the Legislature is of course restrained by other
related limitations of the Constitution." Id. at 810, 54 N.W.2d at
91. After analyzing the finance formula, the court concluded that
application of the formula under review (1) produced a commutation
of taxation in some school districts, in violation of Article VIII,
§ 4 of the Nebraska Constitution; and (2) was not levied uniformly,
and, thus, violated Article VIII, § 1 of the Constitution. Id. at
812, 814, 54 N.W.2d at 92-93.
In Gould v. Orr, 244 Neb. 163, 506 N.W.2d 349 (1993), a
family whose children attended the Raymond Central School District,
attempted to challenge the state school finance formula which
existed prior to the 1990 enactment of LB 1059 on the basis that
the formula denied them equal protection of the law, equal
educational opportunities, and the right to uniform and
proportionate taxation. Id. at 164, 506 N.W.2d at 350. While the
dispute was ultimately resolved on procedural grounds, the court
determined that an unequal method of financing a school district's
instruction budget is not a per se violation of Article VII, § 1.
Id. at 169, 506 N.W.2d at 353.
More recently, in Swanson v. State, 249 Neb. 466, 544
N.W.2d 333 (1996), the court assessed a challenge to the "common
levy" financing mechanism which resulted from the 1993 enactment of
LB 839. At issue were the plaintiff's claims that (1) the common
levy constituted a commutation of property tax, in violation of
Neb. Const. art. VIII, § 4; (2) that the levy was nonuniform and,
thus, in violation of Neb. Const. art. VIII, § 1; (3) that the levy
created a state property tax, in violation of Article VIII, § 1A;
and (4) that the common levy constituted "special legislation," in
violation of Article III, § 18. Id. at 468, 544 N.W.2d at 336.
In reviewing the plaintiff's Article VIII, § 4 challenge,
the court reaffirmed the principle that an impermissible
commutation of taxes occurs "when tax funds raised in one [school]
district are diverted entirely to the benefit of another [school]
district." Id. at 471, 544 N.W.2d at 337 (citing State ex rel.
School Dist. v. Ellis, 160 Neb. 400, 70 N.W.2d 320 (1955); State ex
rel. Groves v. School Dist., 101 Neb. 263, 162 N.W. 640 (1917)).
The court, however, did not find the "common levy" financing method
to be violative of the Article VIII, § 4 proscription against
commutation of taxes. 249 Neb. at 472-474, 544 N.W.2d at 338-339.
Specifically, the court determined that "[a] tax levy does not
equal a commutation merely because the taxing district is broadened
to reflect the actual benefits to the public. So long as all
taxpayers receive the benefit of the taxes they remit, the taxing
district passes constitutional muster without offending the
prohibition against commutation." Id. at 474, 544 N.W.2d at 339.
The court also rejected the plaintiff's uniformity clause
challenge as being without merit given that, by its very
definition, the common levy taxed all Class I school districts at
the same rate. Id. at 475, 544 N.W.2d at 339. With regard to the
plaintiff's third claim, the court reiterated that "[t]he State
cannot . . . avoid or circumvent [the Article VIII, § 1A
prohibition against creation of a state property tax] by converting
the traditional state functions into local functions supported by
property taxes." Id. at 476, 544 N.W.2d at 340. Given that
nothing in the common levy tax formula granted state control over
individual school district budget decisions, the court rejected
Swanson's state property tax challenge. The court further rejected
the plaintiff's Article III, § 18 challenge and, ultimately, upheld
the "common levy" financing formula. Id. at 480, 544 N.W.2d at
Based upon the supreme court's interpretation of Article
VII, § 1 in these cases, it is clear that the Legislature has full
plenary authority over local school districts. In enacting
legislation pursuant to Article VII, § 1, the Unicameral must
comply with other limits imposed upon it by the Nebraska
Lauren L. Hill
Assistant Attorney General