No clear path to prevent closure of Kansas schools at this point

Will Kansas lawmakers defy the Kansas Supreme Court’s order to fix inequities in school funding and risk the closure of the state’s schools?

If lawmakers take no action on school finance by June 30, it would set up a constitutional crisis and could trigger the shutdown of the state’s school districts.

Right now it’s a real possibility.

House leaders were ready to pass a new school funding bill Wednesday when the Legislature met for “sine die,” the ceremonial end to the legislative session, but Senate Republicans balked at the idea, and lawmakers went home without addressing the issue.

Gov. Sam Brownback and Republican leaders from both chambers met later that day but did not emerge with a clear plan on how to address the court’s recent ruling and prevent the closure of schools next month.

If lawmakers are going to tackle the issue legislatively before the deadline, they’ll have to hold a special session this month.

Senate Vice President Jeff King, R-Independence, thinks that will happen.

“I think there’ll be a strong push for the Legislature to give one last try to prevent the courts from closing schools,” King said. “Our kids’ education is worth it. I think the majority of the Legislature will agree with that.”

‘Dancing’ for the court

Some Republicans say there’s no way to satisfy the court.

“They’re shooting my feet, asking me to dance, and I’m just tired of dancing,” said Rep. Scott Schwab, R-Olathe. “I’ve been dancing for this court for 14 years. There’s nothing I can do to make that court happy.”

“It’s not a matter of ‘defy,’ ” Schwab continued. “I can’t make them happy. It’s not that I’m trying to stick a fork in their eye. There is nothing on this planet as a legislator that I can do to make that court like us.”

Senate Majority Leader Terry Bruce, R-Hutchinson, floated the idea of defying the court’s order in an interview with the Associated Press on Tuesday, and several rank-and-file members called for the Legislature to do that at an emotional Senate GOP caucus meeting Wednesday.

Bruce’s office refused to answer any questions about the possibility of defying the court order on Friday and deferred any questions about a special session to the governor’s office.

Brownback’s office on Friday would not say whether he’ll call a special session, saying in a statement that the governor “will work with the Attorney General and Legislative leadership in response to the Court’s threat to close Kansas schools,” without clarifying whether that means he’ll call lawmakers back to Topeka.

Jennifer Rapp, spokeswoman for Attorney General Derek Schmidt, said in an e-mail that the attorney general “consistently has told other state leaders he will never advise them to violate an order of the Kansas Supreme Court interpreting the state Constitution, and he has not done so.”

“The Legislature has its own attorneys to advise it on the serious institutional issues presented by recent court orders in this case,” she said. “The attorney general is assessing the options available if this dispute persists because he sees no logic in closing schools in the name of improving the education of children.”

Options

Senate President Susan Wagle, R-Wichita, said legislative leaders, the governor and their attorneys will have a conference call next week to discuss their options.

“There’s a number of different ways to respond,” Wagle said.

One option is to hold a special session and take another run at passing a school funding law that the court will accept. Another option is to pursue a case in federal court to block the shutdown of schools. Wagle said they’re also researching other possibilities and will present those ideas to the GOP caucus soon.

“Clearly, the legislators I’m talking to want to find a way to assure all Kansans and assure our schools that that funding is absolutely delivered to each district as planned,” Wagle said.

Rep. Ron Ryckman, R-Olathe, the House budget chairman, said in a statement that he thinks a special session is needed to address the issue.

“I’ve come to the conclusion that a special session would not only keep the Courts from overreaching and closing schools, but it would also allow the Legislature to address – perhaps finally and forever – the constitutional crisis that never ending litigation creates. … We cannot sit idly as Kansas schoolchildren become collateral damage of the constitutional imbalance,” Ryckman said. “We will not allow Kansas kid’s education to be interrupted by a political dispute.”

Preparing for shutdown

Ignoring the ruling could cause the court to enjoin the state’s education funding on July 1, triggering a shutdown for school districts.

Jim Freeman, chief financial officer for the Wichita school district, said the district is already preparing for a possible shutdown because of the uncertainty of what the Legislature will do.

“The longer this plays out, the more nervous people are,” Freeman said. “… Employees are frightened, and we can’t give them any assurances.”

He called the shutdown the nuclear option and said that depending on what the court orders, the district, which is a plaintiff in the case, could be forced to turn off its electricity and depower its security systems.

Diane Gjerstad, the district’s lobbyist, said Wichita school officials will be meeting with local lawmakers while the Legislature is on break and encouraging them to work toward a solution before June 30.

‘Standard of leadership’

Senate Minority Leader Anthony Hensley, D-Topeka, the longest-serving member of the Legislature, said that if the Legislature does not hold a special session, “we’ll be setting the lowest standard of leadership ever seen in our state’s history.”

Kansas governors have called 22 special sessions since 1874 with the most recent in 2013 when Brownback called a special session to revise the state’s Hard 50 sentencing law.

The Kansas Constitution was amended in 1972 to require a special session if two-thirds of the legislators sign a petition to the governor, but that has never happened in the state’s history.

Hensley and House Minority Leader Tom Burroughs, D-Kansas City, sent out a letter Saturday evening informing Brownback that they are gathering signatures to force a special session.

Former Gov. Kathleen Sebelius called a special session in 2005, which lasted from June 22 through July 6, to address a previous school finance ruling when facing a similar threat of school closures.

Hensley said that Sebelius showed “leadership in basically shepherding the Legislature through that whole thing” when faced with resistance from a faction of lawmakers who wanted to defy the court’s order and “even helped craft the plan that ultimately passed.”

He said the question is whether Brownback is able to exhibit similar leadership and persuade resistant lawmakers to comply with the court ruling.

Mark Peterson, a political scientist at Washburn University, said he thinks the governor, an outspoken critic of the court, might not mind setting off a constitutional battle and defying the order.

“He’s already put his lance in the ground,” Peterson said.

However, Peterson said that public pressure in an election year will likely compel lawmakers to return to Topeka and resolve the issue despite the chest-pounding happening right now.

“I think that at some point somebody says, ‘All right, we’ve got to have another Band-Aid,’ ” Peterson said. “I don’t think that anybody is forgetting that November is not far away and August is even closer.”

All 165 seats in the Legislature are up for election this year. Voters also will be asked in November whether five of the seven justices on the Kansas Supreme Court should retain their seats.

Republicans, whose party platform calls for the ouster of four of the five justices up for retention, have tried to blame the court for the standoff. Wagle said November would be a referendum “on whether or not the voters are going to allow an activist court to take over the appropriating process.”

Patrick Miller, a political scientist at the University of Kansas, said that tactic will help shore up the party’s conservative base but is unlikely to win over the public as a whole.

“I think at this point they’re probably going to lose that debate,” he said.

John Robb, an attorney for the plaintiff school districts, said that if lawmakers running for re-election “happen to go out and go door to door at this point, I think it’s almost universal that the constituents, the people of Kansas, want them to fix this problem.”

“The prospect of a school shutdown is just foreign and unimaginable to anybody in the state. … So I think the public’s expectation is that these elected leaders actually lead and go fix it,” he said.

‘In plain ink’

A shutdown may not be the only outcome. Another possibility is that the court could lift the stay on a lower court ruling and restore the old equalization formula, according to Wagle, who called both possibilities “drastic and extreme.”

That action would mean $38 million in additional funding for schools across the state next year, Robb said.

However, he thinks it’s unlikely the court will do that and thinks that if the Legislature refuses to comply with the ruling, the court will enjoin the funding as it warned in February.

“I think all of us spend an inordinate amount of time trying to figure out what they’re going to do when, gosh, it’s in plain ink right there on paper,” Robb said.

State Treasurer Ron Estes, who is in charge of disbursing state aid to school districts, is unsure of how his office will proceed if the court orders the funding blocked.

He said he swore an oath to uphold the law when he took office, and “the law tells me I have to pay it.”

Estes, a Wichita Republican, could face a contempt order from the court if he does that.

“I think it’s unfortunate that the judicial branch is fighting the Legislature and the executive branch,” said Estes, noting that he is a parent with two children in public schools. “I think it’s going to be devastating for a lot of kids.”

This story was originally published June 4, 2016 at 2:46 PM with the headline "No clear path to prevent closure of Kansas schools at this point."