There is an assumption awash across Kansas that the state Supreme Court will order an increase in funding for K-12 public schools and that the Legislature will refuse to comply. That confrontation, prompted by a case now before the court, could push Kansas into deeply troubled legal waters.
“If the Legislature ignored or defied the (upcoming) decision, it is not clear what the court could do,’’ explained Professor Richard Levy of the University of Kansas School of Law and a leading constitutional scholar.
Of course there should be no impasse. The Legislature should follow a court order, upholding a checks-and-balances precedent that was established at the dawn of this nation.
In the landmark Montoy school finance case, settled in the last decade, the court indicated that if the Legislature did not follow its order to boost appropriations, the court would halt school funding, Levy said.
The threat was successful. Funding was increased. The court dismissed the case.
Now there is another school finance lawsuit before the court. But much has changed since Montoy:
• The composition of the seven-member court is different. Three new justices have joined the court. They could bring a different perspective to the pending case, Gannon vs. State of Kansas.
• The election in 2010 of Republican Gov. Sam Brownback, a staunch ultraconservative, who declared in his State of the State address in January that the Legislature, not the courts, has constitutional authority to fund education. Many Kansans heard a ring of rebellion in that pronouncement.
• The Legislature fell under control of GOP ultraconservatives in the 2012 election. There has been talk among them about refusing to abide a funding edict.
Further, an issue was injected into the current case that the court had not been asked to consider in previous school finance litigation.
The issue is “standing,’’ a legal term meaning litigants must have a stake in a lawsuit, such as suffering alleged harm. The state used standing as part of its defense.
The standing issue was affirmed in October during oral arguments by Stephen McAllister, state solicitor general and a well-respected constitutional expert at the KU law school. No evidence was introduced to show the student plaintiffs had been harmed, he said, nor did school districts have legal standing to bring suit.
I asked John Robb, one of the plaintiffs’ lawyers, for his reaction in an email interview. Standing was raised, he asserted, in an attempt to divert the court’s attention from the state’s loss on the merits.
“Children and school districts have been bringing these cases in Kansas courts for almost 50 years,” he said. “Standing was never as issue for the state until now. These (school) boards have constitutional status. These boards have been suing the state when the state fails to follow the constitutional mandate to suitably fund the schools since at least 1972.”
Will the court be swayed by the issue of standing or other defense arguments? Hard to say. Certainly standing generated questions by some justices during oral arguments.
The long-feared constitutional crisis might be avoided, or at least delayed, if the court were to side with the state’s appeal and not order more funding.
Still, lack of a mandate to increase spending would not bode well for the children of Kansas. They have been shortchanged far too long.