January 19, 2014

Defiance of conservative Republicans on Kansas school funding turns heads nationally

The bitter legal battle in Kansas over education spending is garnering national attention, thanks to the defiant tone struck by conservative Republican leaders as they wait for a state Supreme Court ruling on whether public schools are entitled to additional tax dollars.

The bitter legal battle in Kansas over education spending is garnering national attention, thanks to the defiant tone struck by conservative Republican leaders as they wait for a state Supreme Court ruling on whether public schools are entitled to additional tax dollars.

Top Republicans in the GOP-dominated Legislature contend the Supreme Court doesn’t have the authority under the state constitution to tell lawmakers how much to spend on schools. Republican Gov. Sam Brownback is with them, pointedly calling out the Supreme Court in his State of the State speech last week with five of the seven justices present.

With their public statements, Brownback and GOP legislative leaders suggest they’re prepared to ignore a Supreme Court decision that mandates a massive increase in spending, as a lower court did last year. GOP conservatives were similarly defiant in the last round of school funding litigation, but they now have enough political clout to block compliance, and some have suggested going further, taking steps to rein in the courts.

The tone worries educators, teachers and some parents. It’s one thing for governors and legislators who aspire to slash taxes and shrink government to criticize or delay a court ruling but another for them to refuse to comply altogether or to attempt to reduce the courts’ power.

“That kind of thing could snowball around the country,” said David Sciarra, executive director of the Newark, N.J.-based Education Law Center, which filed a brief in the Kansas case. “People are really watching Kansas to see how the governor and Legislature respond.”

Parents of more than 30 students and the Hutchinson, Wichita, Dodge City and Kansas City school districts sued the state in 2010, arguing that it was not living up to its obligations under the state constitution. In the last round of litigation, ending in 2006, the Supreme Court declared that the constitution’s mandate for lawmakers to “make suitable provision” for financing the state’s “educational interests” means they must spend enough money to give every child a suitable education.

A three-judge panel in Shawnee County last year ordered the state to boost annual spending on schools by $440 million. If the Supreme Court takes a similar tact, Brownback’s signature fiscal and economic-stimulus policy – income tax cuts worth $3.9 billion over the next five years – is threatened.

That is, if Brownback and lawmakers attempt to comply. Brownback signaled the opposite in his State of the State address last week, declaring that the state constitution gives only the Legislature the power to set school funding.

“Too many decisions are made by unaccountable, opaque institutions,” the governor declared. Lawmakers stood and applauded, with a few cheering, as the Supreme Court justices sat in silence.

Before lawmakers opened their annual session last week, Senate President Susan Wagle, a Wichita Republican, noted that five of the seven Supreme Court justices were appointed by Democratic governors and called the court “very invasive.”

Senate Judiciary Committee Chairman Jeff King, an Independence Republican, said the “heart of the litigation” is whether elected officials or the court control budget and tax decisions.

And House Speaker Ray Merrick, a Stilwell Republican, said in an email statement Friday, “Directing taxpayer dollars to the various funding obligations of the state is strictly the job of the legislative branch.”

But attorneys who file funding lawsuits and experts who track them contend education is different because each state’s constitution contains a provision requiring it to provide adequate public schools. Sciarra said past Kansas court decisions pushed the state to a “modern” finance system, in which funding decisions are based on the actual costs of providing an education, not political considerations.

Michael Rebell, a Columbia University professor who led a nonprofit group that sued New York over education funding, said Kansas already is known for its “dramatic showdown” in its last round of litigation. In 2005, the Supreme Court ordered additional spending, based on a legislatively commissioned cost study, and conservative Republican legislators resisted.

In 2005 and 2006, a coalition of Democrats and GOP moderates controlled education funding issues in the Legislature, and Democrat Kathleen Sebelius was governor. Rebell said the “defiant talk” now in Kansas is stronger than elsewhere – and a refusal to comply with a court order on education funding is rare.

“It obviously would strengthen the hand of governors and legislators who are not eager to comply with court orders,” Rebell said. “That will create a buzz.”

Educators find the prospect disconcerting.

“We cannot honestly sit down with a 6-year-old and tell them, `There’s been a budget cut and I don’t have time to help you,“’ said Leigh Ann Rogers, a first-grade teacher at Forest View Elementary School in Olathe and the mother of a high school freshman and graduate. “It’s the years of cutting and squeezing and getting every drop out of the turnip. People are getting weary.”

But the prospect is serious enough that it’s already been discussed by attorneys for the parents and districts suing the state, said John Robb, one of them.

“We’re in new territory here,” Robb said. “We’ve seen talk – lots of talk – but we’ve actually not seen it in action.”

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