The Kansas Senate on Friday defeated a proposed constitutional amendment to prevent the Supreme Court from closing schools if the Legislature fails to constitutionally fund education. The amendment failed by a vote of 26-13, one vote short of the two-thirds majority needed to send it to the House.
The measure, which would limit the court’s powers on school finance issues, was thought to have a better chance of passing in the Senate, where moderate Republicans wield less influence than in the House. A two-thirds vote in both chambers would have been needed to send a constitutional amendment to voters for final approval.
Lawmakers are in Topeka for a special session and face a June 30 deadline to fix inequities in the funding of rich and poor school districts that the Supreme Court found in the “block grant” school finance system passed in 2015 by Gov. Sam Brownback and the Legislature.
If legislators don’t pass a plan that meets court muster, the court has ordered a shutdown of the state’s school system, ruling that it can’t continue to operate on unconstitutional funding.
Six Senate Republicans joined the seven Democrats who were there Friday to shoot down the measure, which would have added language to the state Constitution barring the court or the Legislature from closing schools. The final vote was delayed while the Senate tried to track down the one missing member, Sen. Pat Petty, D-Kansas City.
While she almost certainly would have opposed the amendment, the delay did give Republican leaders time to try, unsuccessfully, to flip one of their members to the “yes” column.
Any senator who voted “no” but decided to change his or her vote could call for reconsideration and change the outcome. They can do that until the end of the next legislative day, which could be Saturday or Monday depending on whether lawmakers decide to work through the weekend.
One surprise vote against the amendment came from conservative Sen. Dan Kerschen, R-Garden Plain.
He said he agrees with the sentiment of the amendment but added, “I don’t like the idea of mixing it with other decisions.”
“I wish we could solve the equity thing and leave the other stuff out of it,” he said.
The Republican majority supporting the amendment posed it as a matter of letting voters decide whether they would want the Supreme Court to continue to have authority to close schools, in spite of a 2005 state law that says the court cannot shut down the schools.
The state Supreme Court can overturn legislative statutes if justices determine they conflict with the Kansas Constitution but can’t directly overrule the state Constitution itself unless the provision in question conflicts with a federally guaranteed right.
“What we’re considering today is giving the people of the state of Kansas the ability and the voice to say that no part of state government – the legislative branch shall not close schools, the judicial branch shall not close schools,” said Sen. Jeff King, R-Independence and the chairman of the Senate Judiciary Committee.
The charge against the amendment was led by Sen. David Haley, D-Kansas City and the ranking minority member on the judiciary committee, who based his appeal in respect for the constitution.
Haley said it would be “poor form” to amend the constitution because of legislative anger at the court over the current school finance situation.
“It’s like our Legislature has a temper tantrum of sorts,” he said. “We’re just pouting.”
He urged his fellow senators to “make an adult decision” and not hide behind let-voters-decide rhetoric.
King said the amendment was carefully crafted not to eliminate the court’s oversight of school funding nor limit its options to order remedies other than closing schools.
He said the courts could, for example, order mediation or levy fines for contempt of court if its orders weren’t followed.
He said of the 46 states that have faced court action on school finance, only two, Kansas and New Jersey, have faced the prospect of school closures, and only New Jersey actually carried through.
Several Republican lawmakers had harsh words for the court, including Sen. Mitch Holmes, R-St. John, who accused the court of going far beyond its authority.
“They don’t care what the law says,” Holmes said. “Our law says that you cannot close schools. The court doesn’t care. They are not bounded by law. They are exercising absolute power.”
Sen Ralph Ostmeyer, R-Grinnell, said in his view, the Legislature had failed years ago when it didn’t approve an amendment to change the way justices are chosen to get a more conservative majority on the court.
“The one judge I wanted to listen to recused himself,” he said, referring to Justice Caleb Stegall, a former lawyer for Brownback.
Stegall stepped away from the school finance fight because of his previous role in shaping the governor’s education policy.