Davis Merritt: State GOP has no endgame on schools case

10/22/2013 12:00 AM

10/21/2013 6:42 PM

The Kansas Supreme Court ruled in 2005 that Kansas was failing to meet its constitution’s requirement for “suitable” spending on public education. The Legislature agreed to raise base state aid over several years from about $3,900 per pupil to $4,492, and the legal battles were temporarily over.

But subsequent legislatures, despite inflation, began to back away, and now, with extreme conservatives and Gov. Sam Brownback in charge, the figure is $3,838 (even less than eight years ago) and the issue is back before the court, which is expected to rule by January whether the state is again out of constitutional compliance.

This time, however, many legislators, including House and Senate leaders, are, in the words of Kansas Republican Party executive director and chief counsel Clayton Barker, “demanding rejection of any court order that requires spending more than the Legislature approved.” They believe that only the Legislature can authorize spending.

But what, exactly, does “rejection” mean? Neither Barker nor party chairman Kelly Arnold can or will say for certain, but both use the words “train wreck.”

It’s possible, of course, that all the legislative muttering is designed to warn the court about a constitutional showdown, i.e. “train wreck,” certainly a high-risk tactic not likely to escape or please the justices.

But if legislators seriously believe that one or two branches of our three-branch system can reject a final ruling by the judicial branch, why do we have a court system or a constitution? If a Supreme Court cannot insist that the unconstitutionality it finds be remedied, the court is rendered impotent, balance is destroyed, and the Legislature’s power left unbridled.

For Barker, who feels that the 2005 court overreached by ordering the Legislature to increase funding and fears the present one may do the same, “That’s the rub to which I have no answer.”

It’s possible that the court could find the state out of compliance but stop short of ordering a specific remedy. That would leave the Legislature to do nothing or to do something that fails the constitution’s “suitable” requirement, which would simply bring everybody back to court for additional months or years while more Kansas children are not adequately educated.

But if the court goes beyond what the legislative and executive branches believe is its authority and they “reject” its order, what then? Does the court hold legislators and/or the governor in contempt? If so, is it prepared to send sheriffs to toss them in jail until they comply, the normal result of contempt? Will the sheriffs, who are officers of the court but also political creatures, also refuse? Then what? Talk about your train wreck.

The looming confrontation invokes some of the radical right’s favorite mantras: that “unelected judges” are destroying democracy, that public schools are wildly tossing around money, that personal liberty means having no societal obligation other than self-preservation.

It also threatens virtually every detail of Brownback’s budgetary policy, including $3.5 billion in tax cuts.

The political stakes are enormous, but the risk to democracy is even larger.

Short term, the only way to avoid a train wreck that crumbles our tripartite system is compliance. Long term, the political process could amend the constitution and replace the justices. But those changes must be the result of a deliberative process involving all citizens, not an ideology-driven revolt by a temporary majority in one party.

We’ve just witnessed the damage that can wreak.

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