The Kansas Legislature and the Kansas Supreme Court appear headed for a colossal train wreck.
In view of a 2005 case known as the “Montoy” decision, as well as the findings of a recent lower court case, the Kansas Supreme Court is likely to rule that current funding for schools is constitutionally inadequate.
I asked Speaker of the House Ray Merrick, a Republican from Stilwell, recently what he thought the Legislature would do in this next session if Kansas lost the case pending before the Kansas Supreme Court, thus ordering that approximately $600 million in additional funding go toward K-12 schools.
Merrick answered, “I really have no idea.”
But I do think he knows one thing for near-certain. This conservative Legislature is not about to raise taxes, and there is likely no other way to increase spending by anything like that amount.
So what happens if the Legislature balks?
I posed that question to one of the state’s leading experts, Richard E. Levy, a constitutional law professor at the University of Kansas School of Law.
“The Legislature is not a party to the suit,” Levy said, “and, thus, any order from the Supreme Court would not apply directly to the Legislature.”
But the Kansas Supreme Court, in the “Montoy” decision, ordered that approximately $750 million more be spent on public schools, and the Legislature complied.
Levy said the Legislature complied because the Kansas Supreme Court threatened to virtually shut down all schools in Kansas — by prohibiting the executive branch from the expenditures of funds for schools — unless the order was met.
The then-moderate Legislature blinked under this threat and thus added $250 million a year for three years to public education.
But this Legislature is all about cutting taxes and squeezing expenditures. And besides that, this is a Legislature that will not tolerate the judicial branch “legislating from the bench.”
So, the Legislature has passed a statute which proclaims that no court can threaten to prohibit the expenditures of school funding ever again, thus blocking a repeat of “Montoy.”
But Levy said that statute itself may be unconstitutional, and he expects the Supreme Court to rule on that at the same time it rules on school funding if the court concludes that a threat to shut down the schools is the only way to remedy constitutionally inadequate funding.
Levy said that if the Legislature does not wish to spend the additional funds, it has a number of options open to it, some of questionable constitutionality.
1. The Legislature can simply defy the court.
2. The Legislature could seek to amend the Kansas Constitution, which would go before voters, to declare the courts have no authority to review the adequacy of spending on schools.
3. The Legislature could seek to change the method of selection of Supreme Court justices. This would take a Constitutional amendment.
4. The Legislature might seek to impeach the justices of the Supreme Court or target them in a retention election.
What will be lost in this power play is the actual need for more funding of public schools in Kansas. Those of us who cherish schools as the state’s highest priority should not live under any delusions. Many legislators believe school funding is either adequate now, or many have expressed the view that schools should be cut back in funding.
Can the Supreme Court find a way to somehow force increased funding for schools if the Legislature chooses to ignore them?
Levy said, “That is by no means clear.”