H. Edward Flentje: Let voters resolve ‘suitable’ conflict

01/20/2013 12:00 AM

01/18/2013 6:03 PM

A panel of three state court judges ordered Kansas lawmakers to boost school funding and surfaced once again a constitutional conflict that has been simmering in Kansas politics for most of the past 50 years.

The conflict revolves around two fundamental issues: What is the proper level of state funding for schools? And who should ultimately determine the proper level of school funding?

The source of the conflict may be traced back to 1966, when voters adopted a complete overhaul of the education article of the Kansas Constitution. New language concerning school finance was included in that revision and stated simply: “The legislature shall make suitable provision for finance of the educational interests of the state.”

Interpreting this suitably vague language has consumed state lawmakers and state courts ever since. Local school boards have repeatedly petitioned state courts for more adequate funding. The court order this month is the fifth round of litigation in this school-finance conundrum.

Through successive litigation, courts have pushed lawmakers to boost the level of school funding; provide for equal funding per student across districts; shift funding from locally levied property taxes to state levied taxes, primarily income and sales taxes; and establish a “rational” basis for all school funding.

In the past two rounds of litigation, state courts have aggressively ruled that a specific level of funding was required to pass constitutional muster. Most recently, the judges directed that lawmakers were constitutionally obligated to fund no less than “base student aid per pupil of $4,492.” The judges’ order would restore cuts made in school funding over recent years and require an additional state appropriation of about $440 million.

Gov. Sam Brownback, Republican legislative leaders and their conservative allies reacted to the court order immediately. In essence they said that the judges had overstepped their authority – that lawmakers, not judges, held the “power of the purse,” and therefore lawmakers should determine the proper level of school funding, without judicial intervention. They also called for a constitutional amendment to remove the courts from interfering with school finance.

Their reaction was expected, for court action on school finance strikes at the heart of the conservative Republican agenda led by Brownback. The court action challenges Brownback’s assertion that he will “fully fund” schools. Even more fundamentally, court rulings threaten Brownback’s beloved income-tax cuts that have left state finance in disarray. The court even chided lawmakers for their “homespun” claim that an economic downturn, not a $2.5 billion tax cut over the next five years, was the cause of inadequate funding of schools.

So let Brownback and his legislative allies craft constitutional language to fix the issue, as they see it, and place their amendment before voters, as early as spring elections this coming April. Their action would be another high-risk, “all-in” solution characteristic of Brownback in his first two years as governor. Success would further tighten the conservative Republican grip on state government; failure would have Brownback spending even more time over the next two years digging out of the deep financial hole he has created for the state.

Kansas voters can sort through the issues and resolve the constitutional conundrum of school finance. They can determine whether to give Brownback and legislators sole discretion over the funding of schools or whether they prefer to have a check on lawmakers through judicial review.

Let the voters decide.

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