Although the 1851 and 1864 Constitutions each contained a provision in the Legislature Article requiring a capitation tax to “be levied on every white male inhabitant who has attained the age of twenty-one years,” and for “one equal moiety” of the proceeds to “be applied to the purposes of education in primary and free schools,” the 1870 Constitution was the first to include a separate Education Article and to provide for a state school system.1
In several respects, the basic elements of the Education Article in the 1870 Constitution have been carried over, albeit in different form, in the current Constitution. Thus the 1870 Constitution provided for a state Superintendent of Public Instruction to be selected by joint ballot of the General Assembly; the position has been retained, but the manner of selection was changed in 1902 to popular election, and then in 1928 and subsequent years to gubernatorial appointment with legislative confirmation. Meanwhile, the 1870 Constitution provided for a threemember Board of Education, to be composed of the Governor, Superintendent, and Attorney General; however, after several changes in the composition and selection of board members in 1902 and 1928, the 1971 Constitution provided for a nine-member board to be appointed by the Governor and confirmed by the General Assembly. Meanwhile, the 1870 Constitution was the first to make explicit mention of the Literary Fund, which had been established by statute in 1810 and consisted of funds collected from forfeitures, fines, and other sources; subsequent constitutions have added other sources of revenue to the Literary Fund and expanded the purposes for which the fund can be used.
In other respects, the Education Article has undergone substantial revisions. The principal constitutional dispute in the mid-twentieth century concerned a requirement that first appeared in the 1902 Constitution to the effect that ““w”hite and colored children shall not be taught in the same school” (art. IX, sec. 140).2