Lawmakers file rare ‘constitutional protest’ over school finance bill

Two Wichita state representatives and the minority leader of the Senate have filed constitutional protests against the school-funding equalization bill that the House and Senate passed last week before going on their spring recess.

Reps. John Carmichael and Jim Ward, both Wichita Democrats, and House Minority Leader Anthony Hensley, D-Topeka, took the rare step of filing formal protests after the Senate and then the House on Thursday passed Senate Substitute for House Bill 2655.

The constitutional protests don’t force the Legislature to reconsider or take any other action with regard to the bill that was passed.

But in this case, according to Carmichael, it will provide the Kansas Supreme Court access to information and arguments against the bill that would have been raised if the House had held a hearing before voting on it.

“It carried in the House of Representatives Thursday afternoon with its ink still not dry from its passage in the Senate,” Carmichael said. The constitutional protest “is an attempt by Rep. Ward and myself to present the other side of the story.”

House Speaker Ray Merrick’s spokeswoman did not return phone and e-mail messages, and the main phone at the speaker’s office went straight to voicemail.

To get the bill through the Legislature last week, a Senate committee stripped the contents of an earlier bill that Carmichael had introduced to commemorate the laying of the cornerstone of the Kansas Capitol. The senators then substituted the school finance language into the empty “shell” that had been Carmichael’s bill.

The Carmichael-Ward protest says: “The substitute bill arrived on the House floor for an up or down vote, without opportunity for receipt of testimony in committee nor an opportunity for full debate and amendment by members of the House.”

The protest was filed under a little-used provision of the Kansas Constitution, Article 2, Section 10, which reads in part: “Any member of either house may make written protest against any act or resolution, and the same shall be entered in the journal without delay or alteration.”

Carmichael said that journal entry becomes an official part of the legislative record and thus can be used by the Supreme Court when it considers whether the bill complies with court orders to fix inequities in the distribution of state aid to schools.

The bill is the Legislature’s answer to a Supreme Court ruling in February that found unconstitutional funding disparities between rich and poor districts in the “block grant” school funding law that the Legislature passed last year at Gov. Sam Brownback’s urging.

Saying unconstitutional acts cannot be allowed to continue, the court has set a July 1 deadline to order the state’s school system shut down if the inequities aren’t corrected.

Carmichael and Ward are adamant that the bill the Legislature passed doesn’t meet the standards the Supreme Court order requires to provide roughly equal educational opportunity to students in rich and poor districts.

“Instead it is a freeze of equalization payments at the current levels accomplished through the artifice of a ‘hold harmless’ provision that benefits wealthier school districts at the expense of poorer districts,” the Carmichael-Ward protest says. “The bill also violates the constitutional requirement of equity by expanding Local Option Budget (LOB) authority only for districts wealthy enough to afford local property tax increases.”

The protest includes attachments of Department of Education charts and spreadsheets that Carmichael and Ward say shows that the substitute bill “continues to create ‘winners and losers’” among school districts.

“Regrettably, this information was for the most part unavailable to House members in time for meaningful review prior to the passage of Senate Substitute for House Bill 2655 because the well-established committee process of the House was ignored in the members’ rush to leave town for ‘spring break,’” the protest says.

Hensley’s protest, filed in the Senate, alleges that that chamber held only “a rushed committee hearing on Wednesday that provided no meaningful opportunity for testimony from the many districts impacted by the passage of this bill.”

He said that resulted in a bill “that demonstrably harms equity rather than curing the equity defects found by the Kansas Supreme Court.”

This story was originally published March 28, 2016 at 1:50 PM with the headline "Lawmakers file rare ‘constitutional protest’ over school finance bill."