LB 1175 (1998)

April 7, 1998


CLERK:  (LB) 1175, Madam President, when the body adjourned yesterday, Senator Wickersham had amendment 4035 pending.  (See page 1548 of the Legislative Journal.)


PRESIDENT ROBAK:  The Chair recognizes Senator Wickersham, if you would like to refresh our memory on where we are at.


SENATOR WICKERSHAM:  Thank you, Madam President.  This is the amendment that we were considering as we adjourned last evening.  I had described this to you as a very difficult policy choice because the amendment concerns the issue of freeholding.  I think I indicated in the discussion last night that in some places in the state, when an override vote is taken, that the persons who are going to pay for most of the cost of the override vote, the property taxpayers, are not necessarily the ones who might be voting for the override vote, or at least they are not going to pay in the same proportions, so they are not going to bear the same kinds of burdens.  When we passed LB 806, we made a change in the freeholding statutes and allowed those individuals who reside in districts with less than 60 students, for which an override vote has been taken, to freehold to another district if they are contiguous to that district.  That has a couple of effects.  One, it can reduce the resource base in the school that had the override vote, so the ability to meet the objectives set out in the override vote may not be there on the tax base that’s left.  The other effect is that, in essence, someone who was able to participate in what is otherwise a democratic process and was simply on the losing end gets to kind of have a veto of that result, but not everybody gets the same opportunity.  It is only those who are contiguous to an adjoining district get that opportunity.  Now I brought the amendment because it suggests that if you are in a district and one of those votes occurs, that you are subject to the override vote for the period of that override vote, but if the school district continues to have less than 60 students, and if there is going to be another override vote, then you should be allowed to freehold out, if you’re eligible.  The analogy that I drew was to individuals who were in a district that had a bond vote, and if you’d had a bond vote, you wouldn’t be able to freehold out, but if you have just an override vote, you can.  Well, the effect is approximately the same.  You have more taxes to pay, and you may not have been in the majority because you may have




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been the one who was going to bear the disproportionate share of the tax burden.  Senator Elmer came up to me and he said, well, you know these aren’t exactly like bond issues because bond issues are for long-term funding needs, and overrides are for short-term operations.  I agree with Senator Elmer about that characterization of the difference between the two kinds of activities.  I would still assert that the result is, basically, the same, that both result in more taxes to pay, albeit, for different purposes, and that the individuals who pay that tax may or nay not be the ones who have actually very much to say about the results.  So from that standpoint, I think they’re the same.  I also I hope suggested to you last night that I don’t know if there is a right answer to this particular issue.  I don’t know if the amendment that I presented to you is the right answer, and, in fact, I think Senator Elmer and Senator Bromm, because they’ve filed amendments to the amendment, want to suggest to you that that isn’t the appropriate answer.  Senator Bohlke, as we continue the discussion, may suggest to you that this issue is too complicated to resolve this afternoon on LB 1175....




SENATOR WICKERSHAM:  ...  and that we ought to carry on the discussion over the summer and at-tempt to come back again next year with a resolution or a proposal for resolution of this particular issue.  I don’t disagree with Senator Bohlke.  I don’t necessarily disagree with Senator Bromm and Senator Elmer that this is a complex issue.  But if you can indulge us, and if we can maybe take a little bit of time and discuss it this afternoon so we can determine whether or not you believe it’s a complex issue and ought to be held over till next year, I am going to ask your indulgence so we can engage in that discussion.


PRESIDENT ROBAK:  Thank you, Senator Wickersham.  Senator Coordsen.


SENATOR COORDSEN:  Thank you, Madam President, members of the body.  I do rise to support this look at the current requirements in statute of...  current permission in statute for residents of a school district that has less than 60 students in




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high school to freehold their land or their contiguous property, at least, to an adjoining district if their district of current residence elected to do a successful vote to override the $1.10 ...  $1.10 limit or create a levy for general operating expenses that is in excess of that.  I would direct your attention to a letter that is distributed by me, and it was written by Mr. Tom Sharp, who is the superintendent of Milligan Schools.  I do not believe that Milligan School, in and of itself, today has less than 60 students but it is one of the fine little schools in the state of Nebraska that does operate in that general vicinity, and there certainly is a large number of those that do.  To have, again to have a condition placed upon voting I find to be particularly onerous unless that same condition apply to all school districts in the state of Nebraska.  I have had to date, I believe, in my legislative district, three votes, successful votes to override the levy cap and create a levy for general operating expenses of three districts that is ...  that are in excess of the $1.10 limit.  I do not believe, as I stand here, that any of those districts that override were, in fact, subject to the 60 student rule, and that there can be no free ...  no freeholding out of those districts into adjoining districts.  But this raises, this issue that was included in 806 raises, I think, some interesting positions in law.  It either ought to apply to all veto overrides, I believe, in the state, and in all classes of government, whether that is county, city, or whatever, or it ought to apply to no one.  I just have serious reservations that we can constitutionally create a condition that apply, for voting, that applies to only one specific set of voters in the state of Nebraska, and that is those that live in school districts in which the high school has less than 60 students.  I simply don’t believe that is something that is appropriate to do.  I think that if we had this provision and it applied to all of the school districts in the state of Nebraska, then that question would go away.  I Just really have serious reservations of the point that we have.  Now that issue isn’t specifically addressed in a narrow fashion by the amendment that Senator Wickersham is presenting to us, but it does ...  this amendment does extend the time line.  I don’t have a copy of it in front of me today.  I certainly did yesterday, but it’s disappeared.  But I believe that this amendment provides that before this freeholding can take place that there has to be two votes to exceed the levy cap...




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SENATOR COORDSEN:  ...  for the district.  So I would encourage your attention to and support of the Wickersham amendment at this point in time.  Thank you, Madam President.


PRESIDENT ROBAK:  Thank you, Senator Coordsen.  Mr. Clerk, an amendment to the amendment.


CLERK:  Senator Elmer would move to amend.  (See FA741 on page 1800 of the Legislative Journal.)


PRESIDENT ROBAK:  The Chair recognizes Senator Elmer to open on his amendment to the amendment.


SENATOR ELMER:  Thank you very much, Madam President.  A portion of Senator Wickersham’s amendment is, I think, probably workable in that he suggests that we wait until a second override vote in order to allow this freeholding petition.  I, also, like Senator Coordsen, have a problem with the 60 student limit, and what my amendment would do would amend Senator Wickersham’s amendment and the underlying E & R amendment in a harmonizing way to extend the freeholding petition process to all Class II and Class III school districts in the state regardless of enrollment if they did, in fact , then over ...  vote to override the $1.10 or, subsequently, $1.00 school levy limits twice.  I think it would be fair and much more fair to everyone concerned to remove the restriction of the 60 students.  There also is another restriction in there in that the land must be within 15 miles of another school system attendance center where they have high school.  That’s a little more limiting.  But what we are trying to show is that in many instances there are agricultural lands paying 70 or 80 percent of a school’s operational expenses, and they may have only 5 to 10 percent of the vote.  It’s pretty easy for people to have to pay a small amount of a large bill to vote to make the bill a little larger.  I think this is a protection for individuals out there who are held captive in a situation such as I just described.  Without this amendment on there, I don’t think Senator Wickersham has such a hot idea.  And I think there is a great deal of difference between an operating budget and a bond issue.  A lot of time and effort




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goes into...  into consideration of whether to build a school or an addition to or remodel a school.  Agreements are entered into with bonding companies.  Interest rates are set on the basis of the ability to pay ...  to repay the loan to the bonding ...  that the bonds represent.  It’s outside of the levy limit.  I think we are talking about operation of the schools on a year to year basis.  We have a better ...  probably a better freeholding, more workable freeholding section if we were to do this.  If my amendment is adopted to Senator Wickersham’s amendment, if a certain school district, either Class II or Class III, in two successive elections to override are successful, then land that is adjacent or concurrent with or adjacent to a neighboring school district may join that neighboring school district, if it is contiguous, and if it is within 15 miles of a high school.  I think it’d make it more fair, more evenhanded, and perhaps more considerate if we did do it in the way Senator Wickersham’s amendment suggests with my addition, and I’d ask for your support.  Thank you, Madam President.


PRESIDENT ROBAK:  Thank you, Senator Elmer.  Senator Bromm announces that the following guests are visiting the Legislature, Judy and Bill Jackson are here from Mobile, Alabama.  They are seated under the north balcony.  Will you both stand and be recognized please.  Welcome to the Nebraska Legislature.  Senator Bromm, your light is next.


SENATOR BROMM:  Thank you, Madam President.  Fellow senators, this issue received some attention last year in 806 and we did...we did adopt the resolution which I received mixed reactions from in my district.  Those property owners that are in the minority as far as voting on the overrides do feel they should have some alternative in case the district, in their view, justifiably overrides the levy limitations.  On the other hand, I understand those that are fearful of the opportunity that some might take to bail out of a district and leave them high and dry, so to speak, when it’s education that you’re talking about.  I ...  last year with all of the issues we were dealing with, we didn’t spend probably as much time on this as we all would have liked to.  We did the best we could with the time that we had.  So we’re back at the table and I appreciate those who saw it fit to bring it back to the table for further discussion.  But at the point we’re at in the session and with




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the ideas that are being floated about on the issue, I’m still not sure that it’s ripe for a final determination.  I have an amendment, although it’s three or four down the list here, which attempts to strike a little bit of a compromise on the proposal.  My amendment would say that if there is a vote to override, a person can’t freehold out for two years, two school years after the vote to override the maximum levy, or until the Class II or III district has not reorganized through a merger agreement or a unified school system, whichever occurs first.  Now, that would be not ...  not quite as onerous for the property owners as Senator Wickersham’s amendment.  I am not willing, at this point, to go as far as Senator Elmer would like to go, although I understand his rationale, and there may be a day when we extend this same provision to all Class II or III schools regardless of the number of pupils.  I don’t know.  I don’t know.  But I think that the tie between the number of pupils and the opt out provision or freehold provision, as I should refer to it properly, was ...  was just that, the number...the number of students.  When you get down to only 60 students, or 50, or 40 in high school, taxpayers begin to raise questions, unless you’re in a very sparsely populated area or no close schools as an alternative.  They begin to raise questions about the wisdom, not, only of the cost of continuing the operation of the school, but also the opportunities for the kids that are involved.  Now, that’s, you know, that’s the tie that was made to the numbers that were involved.  I think...  I am not...  I am not at this point prepared to support the Elmer amendment; can’t say that I’m really prepared to support the Wickersham amendment either.  if my amendment were up there, I can’t tell you exactly how I’d vote on that as well.  So preference would be that the Education Committee and those interested members of the body who are not necessarily members of the Education Committee spend a little more time trying to find the right solution to this answer.  I don’t know if we can do that in the debate today or not, but I think we need to...  another thing that’s happening out there, and I guess this will give us a little indication too of maybe the direction to take, at least today I know there are seven votes to override the levy occurring in Nebraska in school districts.  One of them is in a school in my...  in the 23rd District, and as those votes occur, I think we will have more of a sense of what people think is right and fair with respect to this provision.  So I ...  I am willing to listen.  I’ll




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listen to the debate, see if any clarity comes out of this debate, but right now I’m not at all certain about what direction that I feel I can...




SENATOR BROMM:  ...  take on behalf of the constituents in my district.  Thank you, Madam President.


PRESIDENT ROBAK:  Thank you, Senator Bromm.  Senator Elmer, followed by Senators Jones, Stuhr, Robinson and Bohlke.


SENATOR ELMER:  Okay, thank you, Madam President.  The amendment, as it’s printed on our gadgets here, needs to have one correction in fact.  Mr. Clerk, the amendment that is before us, my amendment needs one clarification in it.  If you have that amendment there before you, the second part where it says in line 8.


CLERK:  Yes, sir.


SENATOR ELMER:  It should say on line 8 on page 17.


CLERK:  Okay.


SENATOR ELMER:  Of the E & R amendment.


CLERK:  Right.




CLERK:  Line 8, page 17, yes, sir.


SENATOR ELMER:  That’s ...  that’s all the corrections, just insert page 17.  Thank you very much.  That will allow the membership to know where we are in the E & R amendment.  Back to the basic premise that we’re talking about here with freeholding, with those individuals out there that are facing extremely high property tax, three and four times any state that surrounds us, we need to have something in there so that people will think about their position, think about what they’re doing to the vast majority of the taxpayer ...  taxpaying ability of the




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district that are such a minority in the voting situation in many of our rural districts.  I think that’s the strong argument.  We’re saying this is in a rural-type district, to a Class II or Class III, which are normally your rural districts, to be able to say, look, I’ll help support this school.  I need to help support this school.  I’m not against education, but, gee whiz, think about my situation out here.  I’m struggling with these low cattle prices, I’m struggling with these low hog prices.  Wheat and corn are down a dime a day for the last week.  How can I support my operation, that’s marginal at least to begin with, with this kind of a property tax burden that you’re asking me to pay?  This hum been my theme since live bean here for 12 years, that we are unfairly taxing those individuals who depend on that capital for their livelihood.  This is merely one small way that we can recognize that they can get a little bit stronger voice in the financial doings of their local school districts.  A little stronger voice is what they need.  Let’s help them get it.  I’d urge you to help us support keeping the freehold petition.  If this amendment is not acceptable to Senator Wickersham’s amendment, I would ask YOU to strongly consider not supporting Senator Wickersham’s amendment.  These agricultural people need something of a lever, something to talk about; perhaps not being ...  perhaps end up with strong consideration toward unification, strong consideration towards a merger, strong consideration and deep thought before they do try to override the levy limits.  It’s not as if it were something being sprung on them in advance.  They know ...  they know in advance that this possibility exists for people who are strapped for money, unable to pay their tax and maintain a lifestyle at all, I think it’s only fair to have this provision available, and I hate to see it weakened.  I’d like to Bee it strengthened and given to the rest of the school districts in the state as Senator Coordsen has suggested.  With that I’d ask for the...


PRESIDENT ROBAK:  one minute.


SENATOR ELMER:  ...  adoption of my amendment to Senator Wickersham’s amendment.


PRESIDENT ROBAK:  Thank you, Senator Elmer.  Senator Jones would like to announce that in the lounge there are peanutbuster parfaits today that his secretary, Pat Eldien, and her husband,




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Paul, brought in honor of Senator Jones and his wife, Pat, forty-fifth wedding anniversary next month.  So thank you, Senator Jones, for your kind gift to us today.  Senator, your light is next.


SENATOR JONES:  Thank you.  I hope you enjoy them.  I just want to talk on this just a little bit, Madam President and members of the body.  This freeholding is an issue in my district that could be on either side of it.  It is a hard issue for me to decide what to do with, and I’m Just wondering if we really ready to do it and have enough discussion on it.  I can give you examples on both sides of it that it just might mess up that whole district.  And to give you an example, one, in one town I have that if they vote to override it, and most of the people that’s going vote is going to be in this small community, and then I’ve got a rancher that’s probably got 10,000 acres or more off to the side of it, he said he’d pull his land out on a freehold.  Well, what does that do to that district then?  It probably could collapse it because all the money that they get from the override would just gone again because of the one man pulling out.  So that’s ...  that’s something we can consider.  Now I’ve got another person that’s got...  affiliated with this one district, and he is opting to go to another district, and he is waiting for this, and he hopes that they will override it so that he can freehold out to the other district he’s going to.  So it’s a tough issue to think about, but I think that we need some more discussion on it and I’m just a wondering whether we should do something this year on it or not because we don’t know how many of them that’s going to override before they have to set the budget.  I realize there’s seven schools that already have done it in the state, and whether this will affect them or not, or whether there would be some freeholding out because of it, I don’t know.  But it is something that I think we need some more study on and, hopefully, we can get something figured out before we have to do it.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Jones.  Senator Stuhr.


SENATOR STUHR:  Thank you, Madam President and members.  This, too, is an issue that can be addressed both ways within the 24th District.  We have a number of schools that this issue




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would affect.  I would rise in opposition to Senator Elmer’s amendment and I guess the concern I have is very similar to Senator Coordsen’s that if it is going to apply to one or two classes, it should apply to all classes, or to no classes.  It seems to me it’s a very targeting piece of legislation that I’m not sure about the constitutionality of it and maybe some of the attorneys have a better handle on that particular issue.  So I rise in opposition of Senator Elmer’s amendment.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Stuhr.  Senator Robinson.


SENATOR ROBINSON:  Madam President, members of the body, it’s interesting to listen to all this.  I’ve heard this all my life around the Blair area.  You know, a farmer will say, gosh, we support your education, and then I say, well, yeah, but you guys get all that federal money and we don’t get any of that federal money, you know, and then that starts a big argument, and it goes on and on.  Nothing ever happens to it, but I think ...  the person that makes the most sense to me, and I don’t even see him here, is Senator Bromm, and he’s lacking a little courage on his bill.  He said he didn’t know whether he’d even vote for it.  Well, gosh, I might be one person that’d vote for it.  He’s talking about making it two years.  But if you go on Senator Wickersham’s, you got to suffer for five more years.  So five more years you got to pay that high tax, and I think it gets back to what Senator Bromm was saying, it gets down to the quality of education.  If you have children in there, you may not want them to go ...  you may want ...  maybe you can freehold out and get into a school that has better education.  Now I know there is some people say small schools have better education, but they may not have the classes this certain family who would like to freehold out could get for their children.  So, you know, I guess I wouldn’t have any problem at all if you did it for Class IIs and IIIs, and I can think of one district, or one school in my district, would probably, there’d be a lot of people that would freehold out and they would probably, before long, be looking at another school to go in with, but I don’t know, for or five years, that’s a long time to have to eat those property taxes, but especially if you would like to have your children go to a better ...  to a school that has a higher quality of education.  And, Senator Bohlke, I have a question for you.




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PRESIDENT ROBAK:  Senator Bohlke, will you yield?




SENATOR ROBINSON:  Do you have a record of how many people have free...  freeheld out, have gotten out of there?


SENATOR BOHLKE:  We have been trying to look at the schools,...




SENATOR BOHLKE:  ...  the number of schools that this could effect.  Our best estimate would be anywhere from 19 to 24 systems.


SENATOR ROBINSON:  But they can do that...


SENATOR BOHLKE:  Currently with the...


SENATOR ROBINSON:  ...  now, though, can’t they?  Oh, those that are ...  have under ...


SENATOR BOHLKE:  ...  after 806, yes.


SENATOR ROBINSON:  So that has not taken place yet, would that be...


SENATOR BOHLKE:  And that would be after the override.  Pardon?




SENATOR BOHLKE:  No one has done it yet.


SENATOR ROBINSON:  Okay, it has to be after the override, so we...  so right now we don’t have any idea how many that would be.  So, well, like I said, I like Senator Bromm, I don’t know if he is going to have enough courage to get that amendment on the floor or not, but I think I could probably support that.  I could probably support...of course, Senator Elmer, what ...  was yours for...  they had to be in there for...for one override, isn’t that right, for yours to get to the second and third?




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PRESIDENT ROBAK:  Senator Elmer.


SENATOR ROBINSON:  We could sing, too, you know, that ...  we’d really put them under.


SENATOR ELMER:  Senator Robinson, we have a good colloquy going here, or dialogue.  What my ...  mine would do would be mitigate what Senator Wickersham would say, that you can’t freehold until the second override election.  Mine would say if they do that, then we should remove the 60 student limit and allow anyone in a Class II or Class III district to freehold out after that...




SENATOR ELMER:  ...  that vote to override.


SENATOR ROBINSON:  Yeah, that was my understanding.  So, but I guess that I will see if Senator Bromm gets courageous and puts that amendment up.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Robinson.  Senator Bohlke.


SENATOR BOHLKE:  Madam President and members, this has been an interesting discussion and this is not an easy topic.  I think there are a few things we have to keep in mind.  One, it is not only 60 students, but it is with if you have 60 students and you’re within 15 miles of another school and that, also, certainly, I have an amendment filed that says one way that would give schools a better idea of what they may have to be dealing with, if you would have to file a letter of intent, that if the override was successful, you would be pulling your land out.  That would help schools, at least, be able to budget or know what the burden may be on those people in the towns as to what they may be facing in property tax.  But I think what everyone has said, what Senator Wickersham, Senator Bromm, Senator Elmer and Senator Robinson is all true.  It is not an easy issue.  I do believe that people who have looked at 806 and recommended, a number of groups, not doing anything this session.  The problem with dealing with this at this time is that I think in order to resolve it we would have to take a significant amount of time right now, probably the rest of the day, because it is complicated, and then I think all of us have




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admitted when we come to the end of the day, we’re not sure we’d have the correct resolution, and that’s really the problem.  I’m perfectly willing, over the interim, to have a study of this.  I am very willing, to the senators who have expressed an interest, if they are not on the Education Committee, if they would let our office know, to work with them and include them.  I think we may want to get the help of the Tax Research Council, possibly the School Finance and Review Committee.  I just think that we need the more expertise into looking into this.  I do believe, even if we did this, and we spent the rest of the day and the evening and came to some resolution, by the time it would get into ...  be enacted and if it were signed and became law, most of the schools this year would have already had their attempt to override.  And so I see nothing wrong, really, in looking at it over the interim, and coming to what we think at that time might be our best recommendation on the subject, that we will have ...  be able to look at the overrides, and if it’s successful or not successful, those that have been attempted by schools with 60 or fewer students who are within 15 miles of another school, at least we will have some data and be able, I think, at that time to make a determination on some added facts.  I think that’s important.  I think that’s missing right now.  We’ve had a number of us say one way that we may address it or another, and I think all of us have admitted that we aren’t sure that that’s ...  that’s the correct answer.  We’ve strug ...  we struggled with it in committee, but we did hear from people, a large number of people, who felt they were being held captive, and especially in the areas that were very small high schools within 15 miles of another school.  The 15 miles, I think, was a significant factor in the determination of going forward with this, more so than the number of students.  And so that’s a little bit of the rationale that was discussed in committee on 806.  1 think that it does need further study, and I think if we could do that and the help of some ...  those of you who have indicated an interest, we would be willing to work with you, and like I said...




SENATOR BOHLKE:  ...also getting the help of some outside agencies to give us some expertise in the area.  So I hope that we can soon recognize that we won’t be able to solve this this




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afternoon, and look forward to possibly working on it over the interim.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Bohlke.  Senator Wickersham.


SENATOR WICKERSHAM:  Thank you, Madam President.  I’m going to suggest to the body that I’ve heard enough of the comments, I’ve Been Senator Bromm’s amendment, I’ve seen Senator Elmer’s amendment, I’ve seen Senator Bohlke’s amendment, I don’t think we’re going to be able to resolve this issue this afternoon, and we’ve got other issues that we can move on to.  I appreciate Senator Bohlke’s offer to have the Education Committee discuss and evaluate this issue over the summer.  That would probably be a better use of our time and our processes to attempt to find a resolution to this issue.  I am going to suggest to Senator Elmer, if he is willing to withdraw his pending amendment to my amendment, that if he does...  if he will do that, that then I will withdraw the base amendment and we can move on to other issues, and to the discussion of more full, deliberate, and complete discussion of this issue over the summer with potential legislation next year, and I’d yield the balance of my time to Senator Elmer.


PRESIDENT ROBAK:  Senator Elmer, there are four minutes remaining.


SENATOR ELMER:  Thank you, Senator Wickersham, Madam President.  I really appreciate the opportunity to talk about this issue.  I’ve felt very strongly about this for a number of years, that we do need to do something to mitigate those problems that the very small minorities with the very large property holding that supports the school district, and appreciate Senator Wickersham putting up the amendment for that purpose.  And with that, I would withdraw my amendment to Senator Wickersham’s amendment, and yield the remainder of my-time back to Senator Wickersham.


PRESIDENT ROBAK:  Senator Wickersham.


SENATOR WICKERSHAM:  And, Madam President, I would withdraw






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PRESIDENT ROBAK:  Thank you.  The Elmer amendment to the amendment is withdrawn.  The Wickersham amendment is withdrawn.


CLERK:  Next amendment, Senator Kiel, 4261.  (See page 1768 of the Legislative Journal.)


PRESIDENT ROBAK:  The Chair recognizes Senator Kiel to open on her amendment.


SENATOR KIEL:  Thank you, Madam Lieutenant Governor, and members of the Legislature.  The amendment that I am offering today to 1175 is something that I’ve been working on for a couple of years, and that is a definition of corporal punishment and a definition of physical restraint.  The reason that I have brought this amendment is while corporal punishment is prohibited by law, we have no definition of corporal punishment, and we also have no definition of what a teacher may reasonably be expected to be able to do, and also what a teacher may not do.  So what does this amendment do?  It defines corporal punishment as knowingly and purposely inflicting physical pain on a student as a disciplinary measure, and this, of course, does not include pain or discomfort during practice or competition in sports, physical education or extracurricular activity.  And then what it does is define physical restraint as being something that may be used and that is the placing of hands on a student in a manner that is reasonable and necessary to quell a disturbance, to provide self-protection, protect the student or others from physical injury, obtain possession of a weapon or other dangerous object on the person of the student, maintain orderly conduct of a student, or protect property from serious harm.  What we have found is that although the current law simply prohibits corporal punishment in public schools and, by the way, we are passing out the actual language of that statute right now, a lack of definition that puts teachers and other employees at risk because they may not be able to respond to a dangerous situation because it is unclear what they may or may not be able to do.  A lack of definition also puts students at risk because teachers or other employees may harm or threaten to harm students without fear of punishment.  The lack of a clear definition may keep boards or courts from removing these employees, and what we have found is this is cut both ways in that we have teachers who are afraid to intervene in a dangerous




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situation, a fight or something like that, because they are concerned that they may be sued or get into trouble because there is no definition of what they can do, but what I have heard more about is ...  is that because there is no definition in law, nothing that says what a teacher can or cannot do, we have had situations where teachers may have behaved or reacted inappropriately because there is nothing that says what they can’t do.  So I am hopeful that this amendment provides a balance between what is okay to do and what is not okay to do, and I want to Close by, as I was doing some research on corporal punishment and doing research just on school discipline in general, I found an article that talked about discipline in the school over the years and actually found a reference that went back to a lawsuit that was filed in 1859 with regard to discipline in the school and that was a child who was being saucy and disrespectful to a teacher and was disciplined by that teacher, and actually went up to the Supreme Court.  But I want to close with a quote from this article because this is what we’re attempting ...  we are attempting to provide some definitions so that both teachers and students feel safe in school, and the children in school today are different, yet similar, to the child who was saucy and disrespectful to Mr. Seaver in 1859, similar in that they are children who need guidance, structure in a clearly defined school setting, different in that they now live in a much more worldly environment built on instant communication, mass media, diminished home and community influence, and a society that places far fewer restrictions on the individual.  Thus, the school in its behavior control must chart a course between the need for structure and the realities of the society from which the children come.  And I am hopeful that the members of the Legislature will feel that this amendment strikes that balance between the needs of the children and the needs of the community from which the children come.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Kiel.  Senator Chambers.


SENATOR CHAMBERS:  Thank you.  Madam President, members of the Legislature, Senator Kiel, did you hand out the actual text of your amendment?  Could I ask Senator Kiel a question on the mike.




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PRESIDENT ROBAK:  Senator Kiel, will you please respond.


SENATOR KIEL:  Excuse me, Senator Chambers.


SENATOR CHAMBERS:  No, that’s okay because I wasn’t hearing everything you said.  Did you hand out the actual text of your amendment?


SENATOR KIEL:  Not the amendment, itself, but I handed out a summary of the definition of corporal punishment and a definition of physical restraint.


SENATOR CHAMBERS:  Do you have...


SENATOR KIEL:  Do you have that in front of you?




SENATOR KIEL:  I hand...  I handed it out.


SENATOR CHAMBERS:  Not a copy of the amendment, though.


SENATOR KIEL:  Do you have it now?


SENATOR CHAMBERS:  Yes.  Now when you said physical restraint is defined, you mean it’s already defined in the law or your amendment would also define it.


SENATOR KIEL:  My amendment defines it.


SENATOR CHAMBERS:  In looking at your summary, because I just got a copy of the amendment, itself, from Squire Wehrbein, if it says that corporal punishment means knowingly and purposely inflicting physical pain on a student as a disciplinary measure, if that is what corporal punishment is and that’s the time that physical pain or discomfort cannot be inflicted, it can be inflicted for other reasons.


SENATOR KIEL:  Can you give me an example of other reasons because I’m not sure (interruption).


SENATOR CHAMBERS:  You’re just ...  you’re not punishing the child




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but you just want to inflict pain, you’re not punishing the child, you’re just doing it.


SENATOR KIEL:  I am sure that that could occur.


SENATOR CHAMBERS:  And that would be allowed based on this definition, wouldn’t it?  Well, let’s say it like it is.


SENATOR KIEL:  I am not sure.  I suppose I would disagree that it could be, but...


SENATOR CHAMBERS:  Let’s say as a coaching tactic then, where it is not punishment because you specifically exempt participation in practice for, or competition in, an interscholastic sport or participation in physical education or an extracurricular activity.  If a person is not running fast enough and the coach swats him, that’s all right because that’s a part of the athletic activity, isn’t it?


SENATOR KIEL:  I guess I’d define that as a disciplinary measure.


SENATOR CHAMBERS:  But that’s...that’s the way you would define it, but where is that prohibited in here when it specifically exempts from corporal punishment’s definition pain or discomfort caused by the participation?


SENATOR KIEL:  I guess the defi ...  what I’m looking at is students actually participating in sports or whatever, that would be the pain or discomfort they might experience from having to run a long way and having pain in their muscles.


SENATOR CHAMBERS:  That’s not what this says though, and some coaches do use pain as a method of coaching.  So let’s say the coach decides that you’re going to ...  the two peo ...  two players on the football team are going to be forced to wrestle each other until one of them is subdued, and that’s a part of the practice, that would be allowed, wouldn’t it?




SENATOR CHAMBERS:  And do you think that’s wholesome?




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SENATOR KIEL:  In wrestling, if two athletes are required to wrestle until one is subdued?


SENATOR CHAMBERS:  Yeah, this is not the wrestling team, this is just two guys playing football and this is the coach’s way to instill discipline.


SENATOR KIEL:  I guess, again, I would go back to, I suppose, the definition of what would be considered a disciplinary measure.  I would say that that might be considered a disciplinary measure and, obviously, somebody else might disagree with that.




SENATOR CHAMBERS:  What is the purpose of discipline?  Is it only for punishment?


SENATOR KIEL:  No, I’d say the purpose of discipline is to maintain order.


SENATOR CHAMBERS:  But that’s what this physical restraint would do.  You cannot inflict pain to maintain order but only physical restraint.


SENATOR KIEL:  I guess what I’m getting at is disciplinary measure, you may use physical restraint but you may not use corporal punishment.


SENATOR CHAMBERS:  And corporal punishment is knowingly and purposely inflicting pain and discomfort as a disciplinary measure.


SENATOR KIEL:  To maintain order, yes.


SENATOR CHAMBERS:  So, not to maintain order.  Restraint is allowed to maintain order, and it is defined differently from corporal punishment.  Physical restraint is not prohibited?






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SENATOR CHAMBERS:  Corporal punishment...  oh, I’ll put my light on.


PRESIDENT ROBAK:  Time is up, Senator, but you may continue.  Your light is next.


SENATOR CHAMBERS:  Thank you, Madam President.  Physical restraint is not discipline nor is it punishment but it is to maintain order.  So pain and physical discomfort can be inflicted in order to maintain order, isn’t that correct?  It is only prohibited an a disciplinary measure, but if it is to maintain order, then you can do it, can’t you?


SENATOR KIEL:  Well, I guess to go back to my definition of disciplinary...  or excuse me, maintaining order, I guess it depends upon your definition of discipline.  I’d differentiate between corporal punishment and discipline.


SENATOR CHAMBERS:  If it’s necessary to smack a kid to maintain order, that’s placing hands on...  okay.


SENATOR KIEL:  And I don’t regard that as reasonable and necessary so...


SENATOR CHAMBERS:  Okay, thank you, Senator Kiel.  Members of the Legislature, I am going to oppose this amendment, and I am also looking at LB 1175 and the latest amended version of that, I think, is AM7236.  And that has 101 pages and I guess a multitude of amendments, but I really don’t know what all of them are, and to put this amendment on...  let me ask Senator Kiel a question.  I may be getting ahead of myself.








SENATOR CHAMBERS:  Did this provision have a hearing?  Was it a bill?




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SENATOR KIEL:  It was a bill last year, part of a bill last year.


SENATOR CHAMBERS:  And what happened to it?


SENATOR KIEL:  Well, it was my priority bill last year and didn’t get ...  we ran out of time, and I did bring it back this year.


SENATOR CHAMBERS:  And it is not a priority bill this year?




SENATOR CHAMBERS:  Thank you.  Members of the Legislature, I’m going to oppose this amendment.  I don’t think that the...  I can understand what Senator Kiel is trying to do, but it looks like the amendment may be language from a model measure put together by the education establishment.  I don’t know that to be a fact, so I’ll ask Senator Kiel another question.  Senator Kiel, what is the origin of this language, if you know?


SENATOR KIEL:  The original language was put together in discussions with both NSEA and school administrators.


SENATOR CHAMBERS:  But no other groups were involved who might be interested in the welfare of children?


SENATOR KIEL:  Not unless...


SENATOR CHAMBERS:  Were there any...


SENATOR KIEL:  ...  those groups were in discussions with other people, no.


SENATOR CHAMBERS:  But nobody from a child protective agency, or any child abuse association or group?




SENATOR CHAMBERS:  Okay.  Members of the Legislature, the way this...these two provisions are written can make them self-defeating and can lend even more ambiguity to the law.  If




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this pain, this physical restraint is specifically allowed, but corporal punishment is prohibited, but under the definition of physical restraint, you can inflict pain and discomfort, then you still are allowing adults to harm children, and you’re making it affirmatively allowable in the schools by adopting this language.  I don’t know whose bill LB 1175 is, I am going to check it out.  It’s an Education Committee bill.  I’d like to ask Senator Bohlke a question.


PRESIDENT ROBAK:  Senator Bohlke, will you yield?




SENATOR CHAMBERS:  Senator Bohlke, LB 1175 appears to have been rewritten at least a couple of times.




SENATOR CHAMBERS:  Is that correct?




SENATOR CHAMBERS:  I meant a substantial rewriting.


SENATOR BOHLKE:  They ...  there have been a number of amendments added on to it, Senator Chambers.


SENATOR CHAMBERS:  Is this an important bill?


SENATOR BOHLKE:  Yes, it is.


SENATOR CHAMBERS:  Is it important enough to have a knockdown, drag-out on this amendment that Senator Kiel is offering?  And I don’t want to put you in the middle of anything, but I don’t...  I need to find out from you how important this bill is.


SENATOR BOHLKE:  Senator Chambers, the most important part of the bill is the fact that it sunsets the date that we...  for special ed funding.  Remember the date, if we don’t take care of that sunset date, it’s $128 million to schools.


SENATOR CHAMBERS:  That’s right.




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SENATOR BOHLKE:  So I think it’s significant.


SENATOR CHAMBERS:  Then maybe you ought to try to talk to Senator Kiel, and I am going to tell you all why.  I’ve spent years fighting against corporal punishment in the schools.  I went into schools where children had been, by my...


PRESIDENT ROBAK:  Time.  You may continue, Senator.


SENATOR CHAMBERS:  ...  by my definition, assaulted.  I have put my hands on teachers physically, and I told the teachers there is less physical disparity between you and me than between you and this child that you physically assaulted.  And I had to fight years to get corporal punishment prohibited.  Teachers knew what corporal punishment was when they were allowed to do it and were doing it.  Then when it was prohibited, they suddenly dummied up, and they didn’t know what that meant anymore.  So I’m not going to let, at this late stage of the game, all that work that I did be put on this bill, not on General File, but on Select File, and I want the NSEA and all the rest of them to know that in me they have an implacable foe against teachers being able to brutalize these children, and that’s what they do.  One of those rats actually hit that child in a way that if I would have been there, I would have put on him what he put on the child, and I mean it.  If you want to get on the fighting side of me, you let an adult be authorized to use violence against a child, and I will do violence to this bill, not to the introducer of the amendment.  Oh, I would yield time to Senator Kiel under a threat of physical violence to myself, if I don’t.




SENATOR KIEL:  Because we don’t have any more time to do this today, I will pull the amendment.


PRESIDENT ROBAK:  The amendment is withdrawn.  Mr. Clerk, the next amendment.


ASSISTANT CLERK:  Madam President, the next amendment is offered by Senator Bohlke.  This is AM4274.  (See page 1700 of the




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Legislative Journal.)


PRESIDENT ROBAK:  The Chair recognizes Senator Bohlke to open on her amendment.


SENATOR BOHLKE:  Yes, Madam President and members, for all of you, this just removes the reorganization part for Class Is in this bill.  We did it in 1219, which was much more liberal than it is in this bill as far as the options that are available to Class Is in a reorganization, and because of that, and that being in 1219, we no longer need it in this bill, and so this simply removes that section.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator.  Is there any discussion on the Bohlke amendment?  Senator Bohlke, do you wish to close?  Closing is waived.  The motion before you is the adoption of the Bohlke amendment to LB 1175.  All those in favor vote aye; all those opposed vote nay.  Have you all voted?  Please record.


CLERK:  25 ayes, 0 nays, Madam President, on adoption of Senator Bohlke’s amendment.


PRESIDENT ROBAK:  The Bohlke amendment is adopted.  Mr. Clerk, next amendment.


CLERK:  Madam President, I have nothing further to the bill at this time.


PRESIDENT ROBAK:  Senator Bruning.


SENATOR BRUNING:  Madam President, I move LB 1175 to E & R for engrossing.


PRESIDENT ROBAK:  Is there any discussion?  Seeing none, the question before you is the advancement of LB 1175.  All those in favor say aye.  All those opposed nay.  LB 1175 advances.  We now turn to ...  Mr. Clerk, before we begin, items for the record, please.