Constitutional stalemate brewing over Kansas school funding

03/06/2014 2:04 PM

08/06/2014 8:42 AM

The Kansas Legislature could be headed for a constitutional showdown, signaling that an explicit order from the state’s high court might not be enough to prompt lawmakers to increase school funding.

Legislative leaders are bracing for a crisis that could pit the two branches of government against each other over how far the courts can go in commandeering the power of the purse.

Oral arguments at the Kansas Supreme Court this week will debate whether the state violated its constitutional command to spend a “suitable” amount on schools.

Eight years ago, after much wrangling, the Legislature complied with a Supreme Court order and pumped an additional $750 million-plus into schools.

This time, the Legislature might not be as willing to agree to more court-ordered spending, moving Kansas into unknown territory about what happens when one branch of state government defies another.

“I don’t see the Legislature right now, with this makeup, going along with what the courts say,” said House Speaker Ray Merrick, R-Stilwell. “But I could be surprised.”

On Tuesday, the Supreme Court will hear the appeal of a lower-court decision that said the state wasn’t meeting its constitutional requirement on education financing.

The lawsuit, brought by a group of parents and school districts, contended the state hadn’t lived up to its promise to increase school funding under a 2005 order by the Kansas Supreme Court.

A three-judge panel ruled in January that cuts made in education since 2009 demonstrated “an obvious and continuing pattern of disregard of constitutional funding.”

If upheld, the lower court’s order could force the state to inject between $500 million and $600 million more into public schools.

But whether the Legislature would agree to go along with the courts, as it did eight years ago, is a different matter.

After the Supreme Court’s 2005 ruling, many conservative legislators argued that the court was out of line and cited the Kansas Constitution, which explicitly names the Legislature as responsible for appropriating money for education.

Almost a decade later, resentment toward the Supreme Court still lingers. Lawmakers tried to change the way members of the court are selected. They’ve tried to pass laws prohibiting justices from ordering the Legislature to spend more on schools. Both efforts have failed but could be revived if the court again orders lawmakers to spend more on schools.

Still in the minds of many lawmakers is a lunch meeting that Supreme Court Justice Lawton Nuss had in 2006 with former Senate President Steve Morris during the last school finance case.

That meeting sparked charges that the two had made a deal to end the lawsuit. Nuss was later formally admonished, and he recused himself from the case after the lunch made headlines.

“There’s as much resentment today as there was then,” said Rep. Scott Schwab, R-Olathe. “The court still has the same worldview they had back then: What they say is more important than the legislative branch.”

But eight years ago, moderate Republicans joined with Democrats to hammer out a deal.

“The Legislature in 2013 is just so different,” said Burdett Loomis, a political science professor at the University of Kansas.

Today the Legislature is dominated by conservatives. Many of those lawmakers were hostile to the first ruling and would fiercely resist following a funding order by the court this time, Loomis said.

Senate President Susan Wagle said she doesn’t think her chamber would go along with a court order forcing the state to spend hundreds of millions more on education.

“To have an unelected court tell us that we have to spend a specific amount of money on one line item would be offensive,” said Wagle, R-Wichita.

Senate Vice President Jeff King said any decision about spending more on schools has to be factored into the state’s spending and tax policies.

“I don’t think the Supreme Court should expect us to consider education independent of all the other needs of the state,” said King, R-Independence.

For his part, Schwab thinks the Legislature will ultimately meet the court halfway if it orders more money for schools.

Other lawmakers, however, think conservatives will use an order forcing more school spending to call for “radical” reforms aimed at saving money. Those could include re-energized efforts to give charter schools more freedom to operate or a push for tax credits for donations to scholarship programs allowing children to attend private school.

“There will be an opportunistic bunch who will use this to say, ‘See we have to reform, we can’t afford the status quo,’ ” said Rep. Melissa Rooker, R-Fairway.

Legal experts who have followed the case expect the high court to hand down a ruling similar to its 2005 decision – insisting on a dramatic increase in support to local school districts – unless it does something to back away from that precedent-setting case.

The question remains how the Legislature will react and what might the court do if it’s rebuffed. It’s new territory for everyone.

“I don’t think anybody has any idea at this point,” said Curt Tideman, a legal expert on education who defended the state in the 2005 case. “What happens in these cases generally is that the political heat gets so hot that the parties either compromise or one side backs down.”

Those who have watched school finance litigation over the years offered a range of possibilities for how the court might enforce an opinion ordering more money, but each of those ideas has limitations.

The court could issue a contempt order, but the idea of 165 lawmakers being marched to jail seems unlikely.

The court could also tap the state treasury for the money, but that would raise questions about the effect on paying for other state budget items – prisons, roads, social services – and whether the Constitution gives the court that power.

“If that means taxes have to be raised or if that means the Legislature has to figure out some other way to fund other programs, that’s what it means,” said Alan Rupe, an attorney for the plaintiffs.

One idea would be to threaten closure of schools, but the Legislature passed a law that said the courts couldn’t close schools after the 2005 court case, an attempt to remove any leverage the court would have in the future.

The court may have reason to avoid aggressive action.

“I wouldn’t want the court to compromise constitutional principles, but at the same time, discretion is the better part of valor,” said University of Kansas law professor Richard Levy, who has written about the legal and political implications of the 2005 school finance case.

“If there is a way through the morass that allows them to maintain constitutional principle and at the same time avoid a direct confrontation with the Legislature, I hope that they will seek it.”

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