When the Kansas Supreme Court and the Kansas Legislature faced off over school finance more than a decade ago, many lawmakers insisted that judges had overreached.
So much so that they passed a law prohibiting courts from closing schools if the issue ever got to that point again.
And now that we’re there, with a June 30 deadline looming and the threat of a school shutdown real, some legislators insist judges should go back and abide by that 2005 law.
“They don’t have the authority to close schools,” said Sen. Greg Smith, an Overland Park Republican. “Their authority ends when they say this is unconstitutional. Anything after that is up to the Legislature.”
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Yet others, including a former legislator and legal experts, say the law won’t hold up and legislators can’t limit the court’s constitutional powers. If they could, where would it end?
What the law certainly does is point to the jockeying that’s gone on between the Supreme Court and Legislature over who has the ultimate authority in school finance issues.
“This is the general back-and-forth that we have been watching since 2005,” said Curt Tideman, a legal expert on education who defended the state in the 2005 case. “It’s been the Supreme Court attempting to claim authority and the Legislature reacting by trying to reclaim that authority. We’ve watched this play out for the past 12 years. And it seems to have escalated.”
Late last month, the Supreme Court ruled that the Kansas Legislature’s funding of schools remains constitutionally inequitable. The court reaffirmed its June 30 deadline for lawmakers to fix the problem or the state’s school system would shut down.
The justices ruled that lawmakers failed to fulfill the court’s order in February that funding to poor school districts be increased. The decision came in Gannon v. State of Kansas, a lawsuit filed by the Dodge City, Hutchinson, Wichita and Kansas City, Kan., school districts.
In the days since the ruling, legislators have been mixed in their reactions. Some appear defiant, even claiming that the court is engaging in extortion. Others say the Legislature just needs to get to work and come up with a solution that satisfies the court.
Parents and teachers have reached out to lawmakers and school officials concerned that children are being used as a pawn in a battle that doesn’t appear to be ending anytime soon. School officials are meeting, talking with legal counsel and waiting for any news out of Topeka.
“We have a duty, a responsibility to the children of our state,” said Jim Hinson, superintendent of the Shawnee Mission School District, the state’s third largest. “We have to solve this problem.”
What that solution is going to be is anyone’s guess.
Hinson said he favors a short-term solution, such as temporarily going back to the old equity formula, before a long-term answer is found.
But Smith said senators have discussed the 2005 law and the option of standing firm behind it.
“That law is definitely in play, but I don’t know if it will be the answer,” Smith said. “It’s been on the books for 10 years. It’s a valid law. And I fully expect them to follow the law. … Everybody is required to follow the law, not just the legislative branch.”
The law not only bans the court from closing schools but says it can’t stop the Legislature from distributing funds for public education, which the current court ruling could do without a legislative solution by June 30.
Mike O’Neal, an attorney and former speaker of the House, was involved in the creation of the law in 2005. The provision was put in two statutes, he said, one pertaining to judicial panel decisions on school finance and one regarding appellate decisions. The issue regarding judicial panel decisions was raised in district court, O’Neal said, but not ruled on and it’s not before the Supreme Court at this time.
The statute regarding appellate decisions hasn’t been raised. As a result, it hasn’t been tested legally.
“Why aren’t we talking about the fact that the court is seemingly ignoring a state law that is 11 years old?” O’Neal said.
Lawmakers thought in 2005 — and many think now — that the court threatening to deny children an educational opportunity as a remedy was “beyond the pale,” O’Neal said.
“It’s an overreach of huge magnitude,” said O’Neal, who is now the president and CEO of the Kansas Chamber of Commerce. “It’s kind of the nuclear option, and it’s intended by the court to sound like a nuclear option. … They are basically trying to scare everybody and force the Legislature to do something they wouldn’t do on their own.”
Legal experts, however, don’t think the law banning courts from closing schools would stand up to a challenge.
“You can’t limit the court’s constitutional powers,” said former senator John Vratil, who was in the Legislature during the 2005 battle over school funding.
“If the Legislature has the authority to limit the remedies that the Supreme Court has available and do that by statute, they could emasculate the Supreme Court.
“They could limit remedies available to Supreme Court to virtually nothing,” Vratil said. “That’s why I say they can’t do that.”
Tideman said he wasn’t aware of anyone trying to “raise this as a bar to the Supreme Court’s authority. But if they did raise it, I would expect the plaintiffs to argue that the Legislature has no authority, without a constitutional amendment, to limit the authority of the Supreme Court.”
Ultimately, the outcome of the most recent battle may come down to the opinion of voters and constituents, said Richard Levy, a constitutional scholar at the University of Kansas.
“I think if the perception of the Legislature is their constituents will back them in standing up to the courts, we’re likely to see a confrontation,” Levy said. “But if the majority of their constituents said, ‘We think the court is right,’ then I think we’re likely to see some sort of solution.
“And I don’t know that we know yet where the political winds are.”
This feud comes during an election year for lawmakers and justices. Five Supreme Court justices are up for retention in November.
The ruling reads as though the court anticipated some of the criticism and put the responsibility for keeping the schools open on the Legislature.
“The inability of Kansas schools to operate would not be because this court would have ordered them closed,” the opinion said. “Rather, it would be because this court would have performed its sworn duty to the people of Kansas under their constitution to review the legislature’s enactments and to ensure the legislature’s compliance with its own duty under Article 6” of the state constitution.
Mark Tallman of the Kansas Association of School Boards said many have misinterpreted the ruling to say the court will order schools closed.
“There’s nothing that says at midnight on June 30 they would padlock the doors,” Tallman said. “What they said is, ‘You could not raise, distribute or spend money under an unconstitutional system.
“It’s not the court saying, ‘You can’t have school,’ ” he said. “It’s the court saying the funding system isn’t constitutional.”
The way Rep. Stephanie Clayton, an Overland Park Republican, sees it is that the court simply has told legislators: “You need to do your job.”
“All of the responsibility for this is on the Legislature,” Clayton said. “It’s the courts saying, ‘Hey, look at this constitution that you as lawmakers have written.’
“We are not following the law that we wrote. It’s not the courts closing the schools, it’s the courts saying, ‘Follow the law.’ ”