Attorney Mike O’Neal refutes notion that legislature can’t set education curriculum

(The Sentinel) — In mid-May, Governor Laura Kelly vetoed a pair of education bills, which she claimed would violate the state constitution.

One bill would have mandated 30 minutes of daily recess and a statewide physical fitness test; the other, which was overridden, required teaching about the negative impact of certain political ideologies.

“The Kansas Constitution provides for the State Board of Education to design a curriculum,” the Topeka Capital-Journal said Kelly told reporters after a Statehouse event on April 28. “The fitness test and recess could be seen as parts of curriculum because they take time out of the school day. You could also think of them as part of physical education — they used to be back in the old days — so yes, I did see that as curriculum.

“I do think that the State Board of Education is constitutionally authorized to design and implement curriculum.”

The Capital-Journal went on to repeat KSDE’s assertion that the Kansas State Legislature has no authority over curriculum.

“In December 2024, the board adopted its legislative priorities for 2025,” the Capital-Journal wrote. “That included unanimous support for phrasing to remind the Legislature of its lack of authority in certain areas, including curriculum formation. The language allowed the board to oppose a bill if it encroached on the board’s responsibilities.

Not so fast, says former Kansas Speaker of the House Mike O’Neal in a recent column in the Capital-Journal.

Legal analysis refutes Kelly’s claim about education authority

O’Neal criticized the reporting for accepting Kelly’s assertions at face value.

“What stood out from her interview with TCJ was her erroneous statement that the Legislature was acting outside its ‘lane’ in addressing the subject of curriculum. According to the article, Kelly said: ‘The Kansas Constitution provides for the State Board of Education to design a curriculum,’” O’Neal wrote. “That claim is incorrect and finds no support in the language of the Kansas Constitution.”

According to O’Neal, KSBE is only granted “general supervision” of education.

“General supervision is the sole authority granted the State Board by the Kansas Constitution. As the Kansas Supreme Court stated in the 1979 case of NEA Ft. Scott v. Bd. of Ed USD 234, ‘[i]t must be kept in mind that the constitution limits rather than confers power. Art. 6, section 2 limits the power of the State Board of Education to ‘general supervision’ of public schools,’” O’Neal wrote. “Everything else the State Board is authorized or required to do is by virtue of legislative delegation or mandate. This distinction matters because it determines who is ultimately responsible for decisions affecting student learning and educational outcomes for Kansas students.”

O’Neal also notes that the Kansas Supreme Court has repeatedly interpreted that provision to mean “something more than to advise but something less than control.” (See the 1973 case of State ex rel. Miller v. Bd. of Ed).

Moreover, O’Neal said, “the governor has erroneously claimed that the State Board’s authority over curriculum is by virtue of the Kansas Constitution. It is not. The statutory basis for the State Board’s role in K-12 issues can be found at K.S.A. 72-255.”

“That statute reflects the Legislature’s constitutional authority to assign duties to the State Board, including requiring the State Board to adopt and maintain standards and rules and regulations regarding such things as school libraries, courses of study and curriculum, accreditation and certification of teachers, administrators and other school staff.

“None of those duties are mentioned in the Kansas Constitution.”

Additionally, in 1974, the Kansas Supreme Court held that the legislature is the primary authority for setting education policy, while the state board carries out responsibilities assigned to it by state law.

“Accordingly, under Art. 6, Secs 1 and 2 of our constitution, the State Board of Education is authorized to perform any duties pertaining to the educational interests of the state which the legislature deems wise and prudent to impose upon the board.”

Indeed, according to O’Neal, the court reaffirmed that decision in a 1998 case.

“The Kansas Supreme Court, in the 1998 case of Bd. of Ed USD 443 v. Ks. St. Bd. of Ed, in looking back at the history of the drafting and passage of the Art. 6 amendment, as reported by the Education Advisory Committee at the time, stated:

“At the same time, the amendment reaffirms the inherent powers of the legislature — and through its members, the people — to shape the general course of public education and provide for its financing.”

The bottom line, O’Neal said?

“It’s important to understand that the authority of the State Board of Education is limited by the Constitution to ‘general supervision’ and that the balance of what the State Board is authorized or mandated to do is by virtue of the Legislature’s constitutional authority to shape the course of education in the state.”