Davis Merritt: School decision rooted in conservatism

When you’re a hammer everything looks like a nail, and when you’re a politician everything looks like a ploy.

So we must be briefly patient and minimally understanding while Kansas’ elected leaders throw a tantrum about the Kansas Supreme Court last week ordering them to obey the constitution. But when that’s over, Kansans have every right to expect mature action to clean up the mess those leaders created out of their ideological fixations about taxes and governmental responsibilities.

Gov. Sam Brownback, Senate President Susan Wagle, R-Wichita, and House Speaker Ray Merrick, R-Stilwell, led the initial chorus of complaints about “activist” judges involved in “political bullying” and firing a “shot across the bow” of the Legislature.

The Supreme Court’s decision means that the leaders likely must find about $100 million more for schools over the next two years, just at the time that their mismanagement has put dire pressure on the state’s finances.

Not that this was a bolt from the blue. The state’s courts – from the district level through the Court of Appeals to the highest level – have consistently concluded, in more than a decade of litigation, that the financial support for Kansas public schools does not meet the state constitution’s mandate of “suitable.”

The thousands of hours and millions of words spent arguing about what is “suitable” have not, and likely never will, lead to agreement between local school districts and the state. But our system of government includes courts for precisely that purpose: to settle disputes when two or more parties and the political system cannot.

The Supreme Court did not seek to insert itself into this dispute; it reached the top level because the state’s attorneys general did not agree with the decisions of the lower courts and kept appealing. The justices and their numerous and diverse predecessors decided the cases by weighing the competing arguments of the plaintiff school districts and the state, not on personal preferences.

And the Supreme Court did not try to usurp the Legislature’s exclusive authority to appropriate money; it fulfilled its own exclusive duty to decide questions of constitutionality.

And that’s all the court did. It did not dictate a solution; in fact, it pointedly declined to enforce an order from a lower court specifying an additional $54 million. It set a deadline of June 30 for the state to forge an acceptable solution or risk shutting down the schools for lack of lawful spending authority.

In thus fully honoring the separation-of-powers doctrine, the court, far from being “activist,” was being conservative, even strict constructionist.

Merrick’s reaction, as he pointed to the House of Representatives chamber, included: “These are the representatives of the people. They (the justices) are not.”

That may be narrowly accurate but it’s not true, and it demonstrates the prevalence of the hammer-and-nail syndrome. As the Supreme Court pointed out, the constitution is the “direct mandate of the people themselves,” while laws are but the “expression of the will of the Legislature.” When those interests conflict, which is often, the courts must decide.

The Legislature can and often does change the laws, but it cannot by itself change the constitution. Only the people can do that.

And only the people can change the Legislature. Every legislative seat will be up in the August primaries, just days before the schools are supposed to reopen.

This story was originally published February 15, 2016 at 6:01 PM with the headline "Davis Merritt: School decision rooted in conservatism."