The Kansas Supreme Court ruled last week that the current method of funding public schools is unconstitutional, which I had predicted when the block grant funding mechanism was enacted during the 2015 legislative session. The court gave the legislature until June 30 to replace the faulty system with another which will ensure relatively equal educational opportunity for all Kansas school children. Note that this ruling only applies to equity of funding, and the larger question of whether funding is adequate is still unsettled.
The problem with the block grant is that it locked each school district’s level of state support at a specific amount and did not take into account factors such as changes in enrollment, number of special needs students, or shifts in a district’s ability to assist in the funding of its schools. The Court pointed out that one solution would be to return to the old school finance formula, which was first adopted in 1992 and subsequently modified numerous times to better match the needs of districts and their students. If legislators do not choose that approach then another plan must be rapidly developed in order to meet the June 30 deadline.
If the legislature fails to act then the Court will enjoin state officials from making any expenditure to public schools until their ruling is followed. If that happens then Kansas public schools will not open next fall. This situation is nothing less than a constitutional time bomb, and it raises several pertinent questions:
How much additional money will be needed to ensure equity?
The court gave no specific figure and left it up to the legislature to determine. Early estimates range from $50 million to $100 million but it will obviously depend on the details of the new funding formula.
Where would that money come from?
The legislature has consumed all available excess funds in crafting a budget last week, a budget I declared to be held together with baling wire and duct tape when I voted no. The legislature has cut income taxes and raised sales taxes to among the highest in the nation. We have few options in this self-inflicted crisis.
Does the Supreme Court have the authority to stop expenditures for schools and shut down the system?
The constitution specifically grants the power to appropriate funds to the legislative branch of government. Some colleagues are outraged that the court would take this step. However the Kansas constitution specifically states “the Legislature shall make suitable provision for finance of the educational interests of the state”. The court has assumed responsibility to interpret whether the finance provided by the legislature is in fact suitable… both in terms of equity and adequacy.
Here is an excerpt from last week’s ruling : “Without a constitutionally equitable school finance system, the schools in Kansas will be unable to operate beyond June 30. And because an unconstitutional system is invalid, efforts to implement it can be enjoined. “
On what basis does the court claim authority to rule statutes unconstitutional?
Again from the ruling: “Our order should not be misinterpreted as expressing a desire by this court to become a regular supervisor of Kansas’ school funding system. We do not, as evidenced by our dismissal of the Montoy litigation 10 years ago. But our order is a manifestation of Hamilton’s conclusion that “the courts were designed to be an intermediate body between the people and the legislature.” Federalist Paper No. 78. Consequently, while we do not desire to become a supervisor of the school finance system, neither do we abandon our duty to the people of Kansas under their constitution to review the legislature’s enactments and to ensure its compliance with its own duty under Article 6.”
Alexander Hamilton directly addressed the question in the early days of our republic: “Limitations [on legislative authority] can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.” He later said “There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”
I must side with the court on this question. While we legislators are constitutionally empowered to appropriate, that authority cannot and must not stray into actions which are unconstitutional. And when that happens the court is surely authorized to intervene. Were it not so then the rights of the minority would be forever under threat. As the Kansas population shifts from rural to urban, rural legislators are increasingly outnumbered. Without judicial oversight and intervention, a future Kansas legislature might decide to enact school finance legislation which disadvantages rural school children. We cannot allow that to happen. In a democracy, the judicial system exists to provide justice for all, including protecting the rights of the minority from the rule of the majority.