The Buzz

School funding case holds the key for Kansas

Updated: 2014-01-12T05:01:10Z

By BRAD COOPER

The Kansas City Star

The direction of Kansas school funding hinges on a single word.

What is “suitable” state support for local schools?

The Kansas Supreme Court is pondering a case that turns on the state constitutional mandate to “make suitable provision for finance of the educational interests of the state.”

Its ruling, which could come any day, will focus on whether the Kansas Legislature reneged on a promise made eight years ago to pump up aid to public classrooms and live up to the Kansas Constitution.

That ruling could spin the fate of teachers, schoolkids, taxpayers and politicians in any number of uncharted directions as the Legislature returns next week for the start of its 2014 session.

“We’re trying to figure out what suitable means in the context of real-life decisions,” said University of Kansas constitutional law professor Rick Levy.

At stake is $600 million or more for elementary and secondary schools in court-ordered spending — money that won’t be easy to find. The state has slashed taxes in recent years and cut services for the poor, corrections, parks and higher education.

In oral arguments on the case, the justices seemed perplexed. Can suitable, they wondered aloud, be measured? Isn’t that something better answered in the political arena?

The answer, state Solicitor General Stephen R. McAllister told the justices in October, “may be in the eye of the beholder.”

But he argued the legislative view, not the judicial outlook, should count. Budget decisions define policy, he said, and should be left to elected officials held accountable by voters. He said that to do otherwise would hand the purse strings to the courts. The constitution, he said, is not a “bankruptcy pact.”

The students, parents and school districts that sued the state insist the courts must force the Legislature to live up to its promises.

“What you need to do,” Alan Rupe, the attorney representing the students and school districts, told the court, “is what the Legislature didn’t do.”

The court’s refereeing could go in various directions:

Schools win their suit: The court orders the Legislature to add upward of $600 million a year for schools.

Yet there’s no obvious place to find the money. Already, revenues are shrinking because of income tax cuts.

“We’re not going to hit an oil gusher here on the Statehouse grounds,” said House Speaker Ray Merrick, a Johnson County Republican.

Lawmakers could raise taxes, but that’s highly unlikely, given the conservative makeup of the House and Senate.

The money could come out of other programs — such as social services or higher education — but recent cuts already drew harsh criticism.

“Where will we find the money?” asked state Rep. Melissa Rooker, a Fairway Republican and a member of the House Education Committee. “We have reduced our revenues to the point where that’s a real problem.”

Another possibility might be rewriting the school funding formula, something Gov. Sam Brownback tried unsuccessfully two years ago.

Constitutional crisis: The court orders more school spending. Legislators refuse.

That opens a range of possibilities, from the court holding lawmakers in contempt to justices tapping the state treasury for money or threatening to close schools.

Assault on the courts: The Legislature takes such offense to court-ordered spending that it launches an attack against the Supreme Court.

Lawmakers could revive efforts to give the governor the power to fill, with Senate confirmation, seats on the Supreme Court. Currently, a panel of lawyers picks nominees for the governor to select from. Conservatives contend the existing system tilts the court left and produces rulings like the one ordering the Legislature to spend more money on schools.

Lawmakers also might press a constitutional amendment barring judges from ordering the Legislature to spend more money on education.

“All options for reform will be on the table,” said Senate President Susan Wagle, a Wichita Republican.

Middle ground: The court could rule that funding is not suitable and ask the Legislature to craft its own answer, pending judicial approval.

Or the court might order the Legislature to conduct new studies to determine how much it costs to fund education in Kansas.

Two studies — one from 2005 and another from 2002 — were used to develop education spending levels that the Legislature ultimately enacted.

Those studies led the state to the $4,492 in base aid per pupil under challenge. The state currently spends $3,838 per pupil — all that the Legislature calculates the state’s budget can support. The plaintiffs believe the amount should be closer to $6,000.

“These studies get very outdated,” Justice David Stutzman said.

Schools lose: Justices at times seemed skeptical of the plaintiff’s case during oral arguments.

Justice Dan Biles questioned whether it had been proven that the students named as plaintiffs had suffered harm. “You have a problem there.”

The state also contests whether school districts can sue because the constitution does not place a legal responsibility on them to fund education.

If the schools do lose, they could seek a rehearing, depending on how many justices sided against them and how strongly their opinions were worded.

An appeal to the U.S. Supreme Court is out of the question because the issue is rooted in the state constitution.

Or school districts, having lost in the courts, could again ask the Legislature for more money — without much hope.

“I can tell you from the 30 years I’ve been involved in school finance litigation,” Rupe said, “that doesn’t work.”

To reach Brad Cooper, call 816-234-7724 or send email to bcooper@kcstar.com.

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