The ‘suitable’ argument: who started this whole thing anyway?

A funny thing happened on the way to the 1966 amendment of the Kansas Constitution’s Article 6 that governs public education. Somebody, identity still unknown, slipped an adjective into Section 6(b) of Article 6.

Adjectives can be tricky. They can reduce or increase the intensity of the noun they modify; they can lend sometimes redundant emotional weight; they can obscure as much as they clarify. So in core, durable documents such as constitutions, they can be troublemakers.

Consider these two sentences:

“The legislature may make provision for finance of educational and scientific activity … ”

“The legislature shall make suitable provision for finance of the educational interests of the state.”

The first sentence was proposed in 1965 by the citizen-based Kansas Legislative Council as part of the rewrite of Article 6. But in the hectic closing days of the session, the second version was substituted for the first by an unknown hand or hands. As a result, Kansans for four decades have been arguing in and out of court about the meaning of “suitable.” The long-running lawsuits have made the state Supreme Court the center of a political and ideological storm over the Legislature’s level of financing public education.

The Kansas Revisor of Statues office, after exhaustive study in 2017, could only declare “it is unclear” how the change came about. Newspaper accounts of those hectic legislative days make no mention of Section 6(b), nor do any legislative or committee reports or transcripts of hearings. It just showed up, somehow.

The primary aims of rewriting the education article were to create an elected State Board of Education to replace a single Commissioner of Education and to ensure more local control for rural school districts, the number of which had been reduced from 8,624 in 1941 to 349 in 1966 by persistent and often controversial unifications.

Rural Kansans were concerned that the unique circumstances of each small community would be subsumed under a statewide board and unification, so the amendment allowed for districts to elect their own school boards and hire the people to run them.

Today some Kansans, including many people in those same rural districts, are pressing to stop what they see as a runway judicial train. Their dilemma: how to do it.

They could try, through a constitutional amendment, to slay that perplexing adjective “suitable.” But would two-thirds of legislators and a majority of voters actually approve of such a wimpy, obvious phrase as “shall make provision for finance” of schools? How about five bucks? No? OK then, 10.

They have talked of limiting the court’s authority to rule in school-finance lawsuits, but any limit on the court’s authority would also be a limit on individual Kansans’ ability to seek redress against their government. Would voters actually surrender that right, which is unconditionally guaranteed by the Kansas Bill of Rights itself?

They have complained that the Court has violated the separation of powers concept in the constitution’s designation of executive, legislative and judicial branches by declaring the legislature’s financing schemes unconstitutional. But they talk broadly and casually about impinging on the judiciary’s duty and ability to safeguard individual rights of citizens against potential depredations of the executive and legislative branches.

As there is no record of how “suitable” got there, whose idea it was, or what was intended by its use, the tools and concepts of legal originalism are no help. Perhaps it would be better to find a more productive road to solving the school finance problem.