Kansas Attorney General Opinion 1992-003

ROBERT T. STEPHAN
ATTORNEY GENERAL
January 10, 1992
ATTORNEY GENERAL OPINION NO. 92- 3
Joseph W. Zima
Clerk and Counsel for Unified
School District No. 501
624 West 24th Street
Topeka, Kansas 66611
Re: Schools--Organization, Powers and Finances of
Boards of Education--Organization Order for Unified
School District; Affirmative Action Contracting
Program
Synopsis: A board of education for a unified school district
may establish and implement an affirmative action
contracting program. Any racial classification set
forth in the program must be justified by a
compelling governmental interest and the means
chosen to effectuate the purpose for the program
must be narrowly tailored to the achievement of
that goal. Cited herein: K.S.A. 44-1009, as
amended by L. 1991, ch. 147, § 6; K.S.A. 1990
Supp. 72-6760, as amended by L. 1991, ch. 226, §
10; K.S.A. 72-8201; 72-8205; Kan. Const., Bill
of Rights, 55 1, 2; Kan. Const., art. 6, § 5;
U.S. Const., amend. 14, § 1.
*
Dear Mr. Zima:
As attorney for unified school district no. 501, Shawnee
county, Kansas, you request our opinion regarding whether a
board of education for a unified school district possesses the
authority to develop and implement an affirmative action

contracting program which would give preference to
minority-owned business enterprises. The contracting program
would be implemented to remedy past unlawful discrimination
occurring within the boundaries of the unified school
district. You also ask, if it is determined that a board of
education does have such authority, whether the appropriate
method for implementing such a contracting program is detailed
in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109
S.Ct. 706, 102 L.Ed.2d 854 (1989).
"Public schools, like other public
employees, operate under two interrelated
constitutional duties. They are under a
clear command from this Court, starting
with Brown v. Board of Education, 349
U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083
(1955), to eliminate every vestige of
racial segregation and discrimination in
the schools. Pursuant to that goal,
race-conscious remedial action may be
necessary. North Carolina State Board of
Education v. Swann, 402 U.S. 43, 46, 91
S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971).
On the other hand, public employers,
including public schools, also must act in
accordance with a 'core purpose of the
Fourteenth Amendment' which is to 'do away
with all governmentally imposed
discriminations based on race.' Palmore
v. Sidoti, 466 U.S. at 432, 104 S.Ct.
at 1881-1882." Wygant v. Jackson Board
of Education, 476 U.S. 267, 277, 106
S.Ct. 1842, 1848, 90 L.Ed.2d 260 (1986).
School districts are creations of the state legislature.
NEA-Wichita v. U.S.D. No. 259, 234 Kan. 512, 517 (1983);
Miller v. U.S.D. No. 470, 12 Kan.App.2d 368, 372
(1987). The districts have only such power and authority as
is granted by the legislature and its power to contract is
only such as is conferred either expressly or by necessary
implication. Id. Any reasonable doubt as to the existence
of such power should be resolved against its existence.
Hobart v. U.S.D. No. 309, 230 Kan. 375, 383 (1981).
The people of Kansas have, by constitutional fiat, placed the
maintenance, development and operation of local public schools
with local boards of education, subject to the general
supervision of the state board of education. State ex rel.

v. Board of Education (Peabody), 212 Kan. 482, 492-93
(1973); see Kan. Const., art. 6, § 5. The legislature
has conferred upon local boards of education the authority to
exercise the usual powers of a corporation for public
purposes, K.S.A. 72-8201, and those powers and authorities
expressly conferred by law. K.S.A. 72-8205. Pursuant to
K.S.A. 72-8201, each unified school district is authorized to
execute contracts. The power to execute contracts necessarily
includes the authority to fix the terms of the contracts,
provided such terms do not contravene statutory law or public
policy. Ritchie Paving, Inc. v. Kansas Department of
Transportation, 232 Kan. 346, 352 (1982). The power
includes the authority to determine the parties with whom the
school districts wish to contract. The local boards of
education may, for purposes of exercising such choices,
implement policies and procedures to be followed by the school
districts, provided the policies and procedures are consistent
with present law. See Board of Education (Peabody), 212
Kan. at 490. A properly formulated affirmative action
contracting program does not violate state statute or public
policy. See K.S.A. 44-1009(b). Local boards of education
may implement as part of their policies and procedures an
affirmative action contracting program which would give
preference to minority-owned business enterprises.
An affirmative action contracting program will not be
applicable to those purchases subject to a bidding
requirement. K.S.A. 1990 Supp. 72-6760, as amended by L.
1991, ch. 226, § 10, states "[n]o expenditure involving an
amount greater than $10,000 for construction, reconstruction,
or remodeling or for the purchase of materials, goods, or
wares shall be made by the board of education of any school
district except upon sealed proposals, and to the lowest
responsible bidder." The matter of determining who is the
lowest responsible bidder is vested in the discretion of the
board of education. Warner v. City of Independence, 121
Kan. 551, 557 (1926). Such a determination implies that the
bidder possesses the necessary skill, judgment and integrity
to faithfully perform the contract, as well as sufficient
financial resources and ability. Williams v. City of
Topeka, 85 Kan. 857, Syl. ¶ 1 (1911). Status as a
minority is not a consideration in determining whether a
bidder is the lowest responsible bidder. Therefore, those
expenditures and purchases involving expenditures greater than
$10,000 for those purposes designated in K.S.A. 1990 Supp.
72-6760, as amended, may not be subject to an affirmative
action contracting program developed by the board of education
of a unified school district.

A state or local subdivision, if delegated the authority from
the state, has the authority to eradicate the effects of
discrimination within its own legislative jurisdiction. City
of Richmond v. J.A. Croson Co., 488 U.S. 469, 491-92, 109
S.Ct. 706, 720, 102 L.Ed.2d 854 (1989). However, such
authority must be exercised within the constraints of section
1 of the fourteenth amendment of the United States
constitution and sections 1 and 2 of the bill of rights of the
Kansas constitution. The protections afforded by these
provisions are duplicative and the test for constitutional
transgression is identical. Leiker v. Employment Security
Board of Review, 8 Kan.App.2d 379, 387 (1983). See
also Ferguson v. Garmon, 643 F.Supp. 335 (D.Kan.
1986); Moody v. Board of Shawnee County Commissioners, 237
Kan. 67, 74 (1984). Racial and ethnic distinctions of any
sort, including those which operate against a group that
historically has not been subject to governmental
discrimination, are inherently suspect and call for the most
exacting judicial examination. Wygant v. Jackson Board of
Education, 476 U.S. 267, 273, 106 S.Ct. 1842, 1846, 90
L.Ed.2d 260 (1986). The standard of review under the equal
protection clause is not dependent on the race of those
burdened or benefitted by a particular classification. City
of Richmond, 488 U.S. at 494, 109 S.Ct. at 721. The
examination is two-fold; first, any racial classification must
be justified by a compelling governmental interest; and
second, the means chosen by the state to effectuate its
purpose must be narrowly tailored to the achievement of that
goal. Wygant, 476 U.S. at 274, 106 S.Ct. at 1847. See
City of Richmond, 488 U.S. at 498, 109 S.Ct. at 723. Racial
classifications are suspect, and simple legislative assurances
of good intention will not suffice. City of Richmond, 488
U.S. at 500, 109 S.Ct. at 724. Only if the affirmative action
contracting program can withstand such heightened scrutiny
will the program be upheld.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. /Smith
Assistant Attorney General
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