Ousted Kentucky Board of Education members partner with the Bluegrass Institute in lawsuit against Gov. Beshear
Some final (for now), personal reflections about the Kentucky Board of Education

Ousted KBE members: Lawmakers should clarify governor's power to reorganize state boards

In addition to our partnership with the Bluegrass Institute to sue Governor Beshear in federal court for his illegal executive order removing us from our positions prior to the ends of our terms without cause, members of the Kentucky Board of Education have issued the following statement calling on lawmakers to clarify in law what powers the governor should have over state boards.

Today we are asking the General Assembly to make a statutory change to KRS 12.028, retroactive to at least December 9, 2019, stipulating that, the Governor’s authority to reorganize state boards between legislative sessions notwithstanding, he/she may not remove members of KBE prior to the ends of their terms without cause. If possible, the statute should specifically make null Gov. Beshear’s executive orders 2020-001 and 2020-002, reinstating members of the Kentucky Board of Education until the ends of their terms.

We believe that the state Supreme Court case from last year, Beshear v. Bevin, upholding Governor Bevin’s right to reorganize boards does not apply to this situation because in that case the Governor did not remove members prior to the ends of their terms, which would have been a direct violation of KRS 63.080 and KRS 156.029. Those statutes were not in dispute in that case, and the Supreme Court did not rule that 12.028 overrides these other, more specific statutes.

That was the essence of our argument in Circuit Court, and by extension in the new U.S. District Court case, where we have also added arguments that due process was violated under federal law and that Gov. Beshear’s overly broad interpretation of 12.028 constitutes a violation of the separation of powers between the legislative and executive branches.

Because the outcome of the court action will take so long to resolve, the optimal pathway to resolution is for the General Assembly to take statutory action on this matter. This was the direct recommendation of Attorney General Cameron, and we agree.

The importance of this matter cannot be overstated.  If Governor Beshear’s actions are allowed to stand, the Kentucky Board of Education will cease to have any meaningful independence from the Governor’s office.  And the fundamental intent of the Kentucky Education Reform Act to reduce political influence in the Department of Education will be undermined.  If any governor can now on impulse sweep away the Board of Education, the board is effectively meaningless and the Commissioner of Education might as well report directly to the governor.

Rep. Bam Carney has publicly stated that four years ago, when Governor Bevin privately consulted legislative leaders with plans to stack KBE with additional members, which would have given him an early majority to control the board (and which likely would have been legal under 12.028), he was warned that the General Assembly would not support, and would in fact retroactively reverse, such an order.  Rep. Carney’s reasoning was simple: Such an action would violate the spirit of KERA, overtly-politicize KBE, and constitute a political power grab specifically intended to be outlawed under KERA. If the legislative majority was willing to oppose a Governor of their own party issuing such an executive order, surely today’s majority party legislators, and others, would want to oppose a Governor from the opposition party who took the power grab even farther by removing the entire board without cause.

With this executive order and the “new” board, Governor Beshear has awarded outsized influence of the Kentucky Department of Education to the Jefferson County Public Schools. The current interim commissioner is on loan from JCPS, where he serves as their general counsel, and the KDE interim communication director is also on loan from JCPS. You can expect that this board will once again give JCPS free reign to return to their decades-long mismanagement of the district. As you know the previous KBE entered into a consent agreement with JCPS to avoid the Kentucky Department of Education taking over management of the district due to numerous mismanagement revelations – most of which have existed for several years.  JCPS was essentially put on probation, with numerous agreed-upon improvement steps to be completed by the district no later than this October.  Governor Beshear’s executive order effectively puts JCPS executives in charge of their own probation and evaluation of progress against goals.  This, we believe, is a conflict of interest. 

This Beshear board will likely be an ardent defender of the education status quo, as they seem to believe all our education system needs is billions more taxpayer dollars, but no meaningful structural reforms. Already the new board has abolished the Finance Committee, which was doing excellent work to bring more transparency and accountability to the state’s education spending. If Beshear’s term is extended to 5 years to align state officer elections with legislative elections as some members are proposing, his control over this board will be even further drawn out.

Even if the rightful board members are reinstated to their positions, we understand that we will soon constitute a minority. If KBE members Heiner, Johnson, and Cusick don’t return to their appointments, then in April when Gimmel and Seymore rotate off the board Gov. Beshear will have a majority of appointments anyway. He has already effected the removal of Commissioner Lewis. But many of us spent two years in the board minority where we all collaborated and did good work representing common sense, transparency, and accountability for the education system. At least 5 of us have until April 2022 to complete our terms. Without our presence, there will be few voices challenging the education status quo on KBE. We are eager and willing to work with colleagues on the other side to collaborate, seek common ground, and do good for our 650,000 public school students, and should be given the chance to do so, as was the case four years ago.

Ultimately, though, this is less about specific board members and more about principle. The General Assembly needs to reassert that only lawmakers can make law, and that governors aren’t above the law, and in particular that our education system should have some modest but meaningful buffer from the brutalities of partisan politics.

We know that lawmakers will face criticism for taking legislative action on this matter, but we believe the primary voices of opposition will be those of the most militant groups in the education establishment – defenders of the status quo. Numerous education leaders including superintendents and officials of various stakeholder organizations have publicly and privately expressed their concerns about the precedent set by Gov. Beshear in this executive order. Reasonable people know that KBE and KDE should not be political footballs, and that the staggered terms of board members should be respected for this very reason.

Lawmakers have taken much harder votes on principle for the good of the Commonwealth in the past. We hope they will do so on this important matter.

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