TOPEKA — Lawyers for the state told Kansas Supreme Court justices Tuesday that they should leave school funding decisions to the Legislature, while a lawyer for school districts, including Wichita USD 259, said lawmakers can’t be trusted to provide suitable funding as required by the Kansas Constitution.
Stephen McAllister, a University of Kansas law professor representing the state government, told the justices that ordering the Legislature to increase funds for schools “ultimately will undermine our system of government.”
He said the cuts that came after the Legislature had promised more money for schools were a result of the crippling recession that hit the state starting in late 2008 – and that the constitutional provision requiring adequate funding is “neither a suicide pact nor a bankruptcy pact.”
“What’s going on (with school funding) may not be perfect, but it’s not unconstitutional,” he said.
Alan Rupe, the lawyer representing schools, argued that the Legislature’s own actions undercut the argument that the recession forced the cuts.
Rupe said lawmakers cut $511 million per year from the schools and at the same time passed an income tax cut worth $2.5 billion through 2018.
Against that backdrop, Rupe said, the courts must step in to enforce the Constitution.
“I don’t frankly trust the Legislature to fund education or keep their promises,” he said.
The attorneys faced off for more than three hours of oral arguments before the Supreme Court.
The state is appealing a decision by a three-judge special court panel that found legislators had underfunded schools and that ordered base state aid to be raised from the current $3,838 per student to $4,492.
The $4,492 figure was established in a 2006 court case, which was dismissed after the Legislature passed a law to put additional money into schools.
During Tuesday’s hearing, that fact wasn’t lost on the justices.
“If that promise had been kept, we wouldn’t be here,” commented Justice Eric Rosen during the panel’s questioning of McAllister.
McAllister and co-counsel Arthur Chalmers pressed the argument that the courts shouldn’t be there anyway.
They argued that adequate education funding is guaranteed to students, not to school districts.
Although the case was brought on students’ behalf, the districts don’t have legal standing to represent them unless the students could prove they had been personally harmed by inadequate school funding, they said.
In addition, they argued that while courts can strike down unconstitutional laws, they don’t have the authority to order a remedy by telling legislators what laws they must pass.
The remedy, McAllister said, lies with the voters.
“They have a remedy every two and four years to make their wishes known,” he said.
Rupe, however, argued that the Legislature had conceded the courts’ role in school finance by passing laws requiring 180 days’ notice before a school finance lawsuit and requiring a three-judge panel to hear the cases, rather than a single judge.
When a government body violates the Constitution, he said, “Somebody, namely the courts, need to do something about it.”
McAllister also argued that what constitutes suitable education is a moving target and that a court order would be based on outdated studies from the earlier lawsuit.
He also noted that the school districts have been suing off and on for years and said that if the courts don’t rule in favor of the Legislature, the litigation will be unending.
“The next time there’s a recession and trouble with funding, we’re back,” he said.
Rupe, who represented the schools in their earlier lawsuit, said the state has the money to fund education to the extent the three-judge panel ordered.
“The money is in the checkbook,” he said. “Maybe some other state agencies have to make their case” for it.
As for the argument that the cost studies are outdated, Rupe said lawmakers did “study after study” and ignored the results, so it would be a waste of time to do more studies now.
“I would not want to see us throw another generation of kids by the wayside,” he said.
The current lawsuit was filed in 2010 by several school districts, including Wichita, Dodge City, Hutchinson and Kansas City, arguing that the state has failed to comply with a 2006 court order to increase funding. A decision in the case is expected by early January.
Wichita school Superintendent John Allison traveled to Topeka to attend the hearing.
Afterward, he acknowledged that what constitutes a suitable education has changed. But he said standards are getting higher, not lower, as schools work to prepare students for jobs in a rapidly changing technological environment.
“The standards have changed as we continue to look at improvement, and they’re going to continue to change,” he said. “If you think about what the standards were in the 1930s, we wouldn’t want to have those standards.”