Constitutional crisis averted.
At least for now.
That’s how some Kansas political officials and observers see Friday’s Kansas Supreme Court ruling on school funding, which took a limited and measured approach to school finance without direct orders to lawmakers to increase funding.
The court tossed some of the issues back to the Legislature and a lower court with instructions on how to proceed, while leaving enough wiggle room to allow both sides to claim at least partial victory.
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The decision came after more than a year of litigation by school districts that charge the Legislature isn’t meeting its burden to provide suitable funding for schools.
They were met with threats from fiscally conservative lawmakers of constitutional amendments to rein in the court’s authority.
But after Friday’s decision, school officials expected some increased funding while lawmakers significantly tamped down earlier rhetoric about the court trampling the authority of the Legislature.
At a news conference featuring the governor, the attorney general and Republican House and Senate leaders Friday afternoon, there was no mention of constitutional amendments to strip the court of any authority over school funding or change the way justices are selected.
That marked a major rhetorical shift for conservatives, who have contended that school funding is solely the business of the Legislature.
Friday’s decision “gives some breathing room to deal with the potential explosiveness of this issue,” said Bob Beatty, a professor of political science at Washburn University in Topeka. “Politically, this gives a lot of breathing room to everybody.”
“It could be a victory for Kansas if we know what adequacy (of school funding) is and we can agree how to fund it,” said Joy Eakins, a Wichita school board member. “We’ve got to get beyond lawsuits and have a conversation about how to fund education.”
There is still plenty to argue about, even in the court’s limited ruling.
A leader of the school districts’ legal team says $129 million is the remedy for what the court says ails education funding – primarily issues of fairness in how money is distributed to districts.
Republican leaders of the conservative-dominated Legislature say the ruling allows them to craft a less-expensive remedy and possibly solve the problem with no additional money.
The Supreme Court was tasked with reviewing the ruling of a three-judge panel that had found the state had failed in its constitutional duty to provide for suitable funding of public education.
The panel ruled that cuts in the state budget had underfunded education by about $440 million a year and “created unconstitutional, wealth-based disparities” by the way the funds were divided between districts.
The Supreme Court upheld part of the lower court ruling on inequities in funding with regard to capital building projects and the local option budget. The LOB is local property tax money that provides support to schools. That’s in addition to base aid from the state plus “weightings,” extra money for hard-to-teach pupils, including those with disabilities, poor students and students deemed at risk of dropping out.
But the Supreme Court set aside the panel’s ruling that the state was underfunding education. The justices ruled the panel had not used the proper method to determine the amount of underfunding because it based its decision entirely on cost studies.
The Supreme Court sent that issue back to the panel with a lengthy set of instructions on how to determine what is adequate.
Justices also set a deadline of July 1 for the Legislature to address inequity by either restoring $129 million in funding reductions or crafting another solution that would be reviewed by the three-judge panel.
Who’s in charge?
The court also sent lawmakers and Gov. Sam Brownback a message that it won’t back away from the contentious issue of school finance.
A substantial section of Friday’s 110-page opinion cited precedents from several other states explaining in detail why courts have a constitutional duty to ensure that suitable funding is provided and how that doesn’t step on the Legislature’s turf.
“Our Kansas Constitution clearly leaves to the Legislature the myriad of choices available to perform its constitutional duty; but when the question becomes whether the Legislature has actually performed its duty, that most basic question is left to the courts to answer under our system of checks and balances,” the unanimous court ruling said.
That, Beatty said, is a direct answer to the governor’s State of the State speech in January.
In that speech, Brownback said: “On the No. 1 item in the state budget – education – the Constitution empowers the Legislature – the people’s representatives – to fund our schools.
“This is the people’s business, done by the people’s house through the wonderfully untidy – but open for all to see – business of appropriations. Let us resolve that our schools remain open and are not closed by the courts or anyone else.”
Ordering the closing of the schools represents the court’s most potent option to force the Legislature to comply with an order to increase funding.
Although the Legislature has passed a statute to prohibit the court from closing schools, it has never been tested and it’s never been clear whether justices would follow that law or strike it down.
On Friday, Brownback deferred the separation-of-powers question to Attorney General Derek Schmidt, who said the court’s decision showed proper deference to the Legislature.
“On the whole, the outcome today was good for the state of Kansas and good for the notion that decisions about school funding ought to be made by the people’s representatives in the Legislature,” Schmidt said.
“The other side asked for a court order to substantially … increase the money appropriated for the Kansas public school system, and the court said no,” Schmidt said. “We asked for a court order saying this matter shouldn’t be in front of the court at all … and the court disagreed with that as well.”
Essentially, he said, “the court adopted a middle ground, saying they’re going to continue to review the Legislature’s and the governor’s decisions on school funding because of the constitutional provision, but I read this case overall to say they’re going to be highly deferential to the recent decisions of the political branches. And I think that’s good news.”
House Speaker Ray Merrick, R-Stilwell, said he was pleased with the decision.
“We know what the parameters are,” he said. “Now we can start working on solutions, and everything’s wide open. … We’ll attack the problem and give a solution to it. That’s what we’re here for.”
Senate President Susan Wagle, R-Wichita, said the ruling clearly sides with legislators, who have said they want all funding considered as part of adequacy, not just base state aid and weightings.
“The focus has changed,” she said. “The focus is now about equity. It’s not about amounts.”
It’s still early to say how the court’s decision will play out politically in the upcoming elections and beyond.
In November, Brownback and all House members will be on the ballot. Brownback will almost certainly face House Minority Leader Paul Davis of Lawrence, who has made increased funding for schools the centerpiece of his campaign.
Beatty said the justices saved Republicans from going into this election season in the midst of a showdown with the court.
Putting a constitutional amendment on the August primary or November general election ballot could bring out dormant pro-school moderate Republicans and hurt more conservative candidates, he said.
Beatty cited a poll two weeks ago showing 59 percent of Kansans wanted the court to increase funding for schools.
Although the pollster, Public Policy Polling, is associated with Democrats, “this is the same poll that had (Sen.) Pat Roberts destroying (former Gov.) Kathleen Sebelius in a Senate race, so it’s not all Democrats,” he said.
Ken Ciboski, a Wichita State University professor of political science who is an active Republican, said he doesn’t think those poll results would hold up if it came to a question of whether the Legislature or courts should control school funding.
“I think the feeling across the state of Kansas would be with the Legislature on this,” he said. “I think there are some pretty strong feelings along these lines.”
Rep. Jim Ward, D-Wichita, said he thinks the court’s decision to proceed slowly on the issue of overall school funding boxes in the legislative conservatives, whom he opposes at almost every turn.
Friday’s ruling won’t provide the tailwind that conservatives would need to get the two-thirds majority in the House to send a court-limiting constitutional amendment to voters this year, he said.
But it does strongly assert that courts have and will continue to have a role in school finance, said Ward, a lawyer and member of the House Judiciary Committee.
He said the most likely outcome is that Brownback and Republicans will “address these two little things (capital funding and LOBs) and get to the election.”
However, he said by deferring to the court on the smaller matters, the Republicans would undercut their own argument for defying the court if it eventually issues an order demanding additional funding for schools.
“If they don’t yell now, they lose their credibility on that issue (later),” Ward said.
Like Davis and Senate Democratic leader Anthony Hensley, Ward said he’d like to see the Legislature increase school funding right now.
“We don’t have to wait for the judges,” he said. “We could address adequacy of funding in the next month. But we won’t, and that’s frustrating.”
Contributing: Bryan Lowry and Suzanne Perez Tobias of The Eagle