Aguillard v. Treen

• Decision Date: 17 October 1983
• Docket Number: No. 83-CQ-0581,83-CQ-0581
• Citation: 440 So.2d 704
• Parties: 14 Ed. Law Rep. 844 Don AGUILLARD, et al. v. David C. TREEN, et al.
• Court: Louisiana Supreme Court

Page 704

440 So.2d 704

14 Ed. Law Rep. 844

Don AGUILLARD, et al. v. David C. TREEN, et al.

No. 83-CQ-0581.

Supreme Court of Louisiana.

Oct. 17, 1983.

Rehearing Denied Nov. 18, 1983.

Andrew Weltchek, Bachmann, Weltchek & Powers, New Orleans, Jack D. Novik, Jay Topkis, Andre R. Jaglom, Alan Pfeffer, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Ronald L. Wilson, New Orleans, for plaintiffs.

William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Patricia Nalley Bowers, Maureen J. Feran, Cynthia D. Young, Asst. Attys. Gen., Baton Rouge, Samuel I. Rosenberg, Polack, Rosenberg, Rittenberg & Edom, New Orleans, John Di Giulio, Baton Rouge, Marion B. Farmer, Dist. Atty., Roy K. Burns, Jr., Asst. Dist. Atty., Covington, David A. Hamilton, Baton Rouge, John W. Whitehead, Wendell R. Bird, Ware, Parker, Johnson, Cook & Dunlevie, Atlanta, Ga., Sp. Asst. Attys. Gen., Thomas T. Anderson, for defendants.

CALOGERO, Justice.

The following question has been certified to this Court by the United States Fifth Circuit Court of Appeals:

"Whether Louisiana Revised Statutes Annotated Sections 17:286.1 through 17:286.7, the 'Balanced Treatment for Creation-Science and Evolution-Science Act' violate Article 8 of the Louisiana Constitution?"

For the reasons which follow, we find that insofar as this statute, La.R.S. 17:286.1-286.7, represents a legislatively- mandated course of study ¹ it is in keeping with Article VIII, Section 1's charge to the Legislature to establish and maintain a public education system. It does not violate Article VIII, Section 3 which creates the Board of Elementary and Secondary Education (BESE) and defines that Board's powers, duties and responsibilities. And, of course, under our state constitution, unlike the federal constitution, legislation not prohibited is allowed.

Various plaintiffs ² filed suit in federal district court against the State of Louisiana, BESE and others. ³ Plaintiffs asked that Louisiana Act 685 of 1981, the "Creation-Science" Act, be declared unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and its implementation enjoined. ⁴

Subsequently, BESE was realigned as a party plaintiff and moved for summary judgment, contending that La.R.S. 17:286.1 through 17:286.7 violates the 1974 Louisiana Constitution. In response to that motion, the United States District Court for the Eastern District of Louisiana decided that La. Const. art. VIII vested responsibility for educational policy in BESE rather than in the Legislature and declared that Act No. 685 of 1981 thus violated the 1974 Louisiana Constitution. After appeal, the Fifth Circuit Court of Appeals certified the question quoted above to this Court. Certification was accepted. 430 So.2d 660 (La.1983). ⁵

The issue to be decided is whether the 1974 Louisiana Constitution by vesting the responsibility exclusively in BESE prohibits the Legislature from prescribing courses of study in elementary and secondary public schools.

Whether the Legislature requires the teaching of a course, the establishment of a particular curriculum or a balanced treatment between a pair of concepts, it is essentially a question of the Legislature's plenary authority to establish and maintain education within the state. Irrespective of other problems of a legal or constitutional nature that may or may not infect this Act, for our present purposes and for the limited question which we are here called upon to answer, we are focusing just on the Louisiana constitutional authority of the Louisiana Legislature to provide for educational policy to be carried out by BESE. ⁶

A brief review of the history of BESE's predecessor, the Louisiana State Board of Education, is in order. The public education article, Art. 224 et seq. of the 1879 Louisiana Constitution did not include any provision for a state board. Art. 250 of the Constitutions of 1898 and of 1913 provided only for the creation of a State Board of Public Education. La. Const. art. XII § 4 (1921) created a State Board of Education, but stated in pertinent part: that "[t]he legislature shall prescribe the duties of said board and define its powers...." This single board was charged with the "supervision and control of all free public schools." [La. Const. art. XII, § 6 (1921) ] and "supervision of all other higher educational institutions, subject to such laws as the Legislature may enact." [La. Const. art. XII, § 7 B (1921) ]

The State Board, under the 1921 Constitution, wielded little authority. See Jackson v. Coxe, 208 La. 715, 23 So.2d 312 (1945). Even though the Board was given the task of overseeing education at all three levels, the delegates to the 1973 Constitutional Convention believed that the State Board of Education had theretofore devoted the majority of its time to the problems of higher education. The proposed solution was the creation of an independent constitutional board with jurisdiction over public elementary and secondary schools. In introducing the educational proposals that would accomplish that end, Mr. Aertker told the 1973 convention delegates: "[T]he power that is given to this body [BESE] is budgetary power. They will go to the legislature directly with the problems of elementary and secondary education." 8 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 2251. (November 9, 1973). In adopting the educational article the delegates to the 1973 Constitutional Convention did not further define BESE's function, apart from the language of La. Const. art. VIII, § 3 itself.

State constitutional provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature. Hainkel v. Henry, 313 So.2d 577 at 579 (La.1975). As a result, the Louisiana Legislature may enact any laws that the state or federal constitutions do not prohibit. In re Oxygen Welders' Supply Profit Sharing Plan, 297 So.2d 663 (La.1974). So, in this case, only if the 1974 Louisiana Constitution took away the Legislature's authority to prescribe courses of study in elementary and secondary public schools can this Court properly find that the Legislature was not empowered to adopt the so-called "balanced treatment laws."

Constitutional provisions are to be construed and interpreted by the same rules as are other laws. Barnett v. Develle, 289 So.2d 129 (La.1974); Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958). When a constitutional provision is plain and unambiguous, its language must be given effect.

As adopted, La. Const. art. VIII, § 1 provides: "The legislature shall provide for the education of the people of the state and shall establish and maintain a public educational system."

La. Const. art. VIII, § 3(A) provides:

The State Board of Elementary and Secondary Education is created as a body corporate. It shall supervise and control the public elementary and secondary schools, vocational-technical training and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law. The board shall have other powers, duties, and responsibilities as provided by this constitution or by law, but shall have no control over the business affairs of a parish or city school board or the selection or removal of its officers and employees. (Emphasis provided.)

An examination of the second sentence of La. Const. art. VIII, § 3(A) (highlighted above) shows that the language could not be more plain or unambiguous.

The phrase "all as provided by law" follows two clauses which concern supervision, control and budgetary responsibility relative to four categories of schools, clearly indicating that the phrase is intended to apply to both clauses and all of their content. Applying the modifying clause to the first part of the sentence, it states: "It shall supervise and control the public elementary and secondary schools ... as provided by law."

Justice Tate, chairman of the Committee on Style and Drafting at the 1973 Louisiana Constitutional Convention, defined the phrase "as provided by law" while writing for this Court in Board of Elementary and Secondary Education v. Nix, 347 So.2d 147 (La.1977). Justice Tate wrote:

This section [La. Const. art. VIII, § 3(A) ] provides that the board 'shall supervise and control the public elementary and secondary schools, vocational-technical training and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law.

When used in this context, as it was in 103 other instances in the 1974 constitution, the term "provided by law " means "provided by legislation." "Law is the solemn expression of legislative will." Louisiana Civil Code, Art. 1. (emphasis in original) 347 So.2d at 151.

Thus the Board shall supervise and control the public elementary and secondary schools as provided "by the legislature" or "by statute." 347 So.2d at 152. BESE's supervision therefore is not unfettered, but subject to laws passed by the Legislature.

Furthermore, La. Const. art. VIII, § 3(A) of the 1974 Louisiana Constitution is not a self-executing provision. To quote Professor Hargrave, Co-ordinator of legal research for the 1973 Constitutional Convention:

[I]t is accurate to say that the legislature cannot abolish the board or change its method of composition and selection, for those matters are fixed by constitutional provision. But the constitution enumerates no powers unqualified by the as-provided-by-law formula. Any constitutional powers in the board would have to be developed by some argument based on inference and structure and cannot rest on text, for the text only grants powers that are "all as provided by law." L. Hargrave, 38 La.L.Rev. 438 at 441-445 (1978). (Emphasis added.)

BESE's non-exclusive...