Conservative state school board members used their majority to side with Atty. Gen. Phill Kline on a plan for neutering the Kansas Supreme Court's threat to freeze funding for public schools.
"We believe it is important to try to do something to keep schools open," said board Chairman Steve Abrams, of Arkansas City.
But the conservatives' latest effort Tuesday to outmaneuver the court may not ensure that schools reopen on schedule in August.
Under the plan, the State Board of Education agreed to certify in advance six months' worth of aid due to the state's 301 school districts. Historically, the board's aid requests have been filed monthly with the State Treasurer's Office.
The plan, in theory, would allow the board to accumulate enough money to fend off for six months the court's threat to freeze funding for public schools.
The board's vote was 6-4, with Kline's fellow conservative Republicans approving the plan.
Kline urged the full board to adopt the strategy during a morning meeting. The vote followed a two-hour executive session.
Former A.G.s sound off on Kline's action
Atty. Gen. Phill Kline's advice to the State Board of Education on how to sidestep a possible state Supreme Court order was puzzling to some of his predecessors in the attorney general's office:
¢ "It's interesting to me to see that he evidently doesn't think the court's opinion carries the weight of law and that it can somehow be circumvented," said Bob Stephan, who was attorney general from 1979 to 1994. "I'm surprised."
Stephan, a Republican, predicted the court "would not be too pleased" with Kline's counseling education officials how to skirt the ruling.
"This whole thing is very upsetting to me," said the 72-year-old Stephan, who's still practicing law in Lenexa.
¢ "Like any lawyer, the attorney general is an officer of the court," said Curt Schneider, attorney general from 1975 to 1979. "And as an officer of the court, an attorney general should never promote or condone anything to avoid an order of the court."
Schneider said that on several occasions he'd been angered by a judge's ruling.
"But I would never counsel a client on how to avoid following an order of the court," he said. Schneider, a Democrat, lives and practices law in Coffeyville.
¢ But Vern Miller, attorney general from 1971 to 1975, said he didn't fault Kline for looking for a way to get around the ruling.
"Those are his clients," he said, referring to the State Board of Education. "He has a responsibility to advise them of all their options. I don't see anything wrong with that. I'd be surprised if he did it to spite the court."
Afterward, board member Bill Wagnon, a Topeka Democrat, said the vote demonstrated "contempt" for the court.
Disagreement on method
Kline told board members he believed the court could not prevent the state treasurer from distributing money once the amount due was certified by the state school board.
But others weren't so sure, including the state treasurer.
"I have the law in front of me right now," State Treasurer Lynn Jenkins, a Republican, said during a telephone interview Tuesday, "and it says the amounts due are subject to the approval of the budget director and of the Division of Accounts and Reports," both of whom answer to the governor.
State Budget Director Duane Goossen, who works for Democratic Gov. Kathleen Sebelius, said he wouldn't go along with the board's plan.
"We will continue to follow the law and the normal procedures," Goossen said.
And Sebelius released this statement: "The best way to guarantee that schools remain open is for the Legislature to uphold its obligations to Kansas kids and pass a responsible school funding plan before Friday."
Special sessions resumes
Legislators were to begin their 12th day of work in a special session today, five days after missing the July 1 deadline set by the court for providing an extra $143 million for schools. Lawmakers' failure to approve an education funding bill led the court to set a Friday hearing on whether it should withhold money from schools.
Conservatives in the Legislature have insisted they will not support any school finance measure that isn't paired with legislative approval of a proposed constitutional amendment limiting the court's powers.
Jenkins said even if the Sebelius administration went along with the Kline plan there was nothing to stop the court from going around the state board of education and ordering her office not to release the funds. If that happened, she said, she would comply with the court.
"Certainly, I am going to obey the law," Jenkins said.
Kansas legal experts said they were baffled by Kline's stance and advice to the school board.
"I have no recollection of anything comparable to this," said Jim Concannon, a former dean at the Washburn University Law School in Topeka.
"I don't know where (Kline) gets the idea that the court can't prevent the treasurer from distributing the money," Kansas University law professor Richard Levy said. "And even if it couldn't, it could enjoin the districts from spending it."
Attempts to reach Kline for comment Tuesday were unsuccessful. But Kline spokesman Whitney Watson said the attorney general's actions underscored a commitment to keep schools open.
Alan Rupe, the lead attorney for the plaintiff school districts in the lawsuit that brought the question of school finance before the court, bristled at the notion of the state's top law enforcement official counseling the board on ways to sidestep the court's ruling.
"We live in a society that's based on the rule of law," Rupe said. "We don't tolerate law avoidance. What kind of example does it set for children to have the chief law enforcement officer (Kline) showing contempt for a court order and trying to get around the law? Shame on him."
But Watson said Kline's actions were appropriate and aimed only at keeping the state's schools open.
Rupe and Levy disagreed. Both warned that Kline's urging the board to sidestep the order put him at risk of being found in contempt by the court.
"Certainly, for an attorney in private practice to so openly and publicly counsel a client on how to avoid complying with a court order could (probably) be sanctionable," Levy said.
More about school finance
- Webcast of live arguments before the Kansas Supreme Court (requires Windows Media Player)
- Brief of the Montoy suit (.pdf)
- Timeline of events in school finance lawsuit
- 6News video: School finance bill to face court
- Plaintiffs: School finance bill fails grade (06-13-06)
- State wants high court to dismiss school suit (06-02-06)
- Legislature approves school finance plan (05-10-06)
- Chat with Bob Corkins, Kansas Education Commissioner (02-02-06)
- House roll call on $148.4 million school finance plan (07-07-05)
- Supt. Weseman's contingency plan (07-06-05)
- More about school finance »
- Conference Committee on Senate Bill 549
- House bill info
- Senate bill info
- Kansas public schools cost study
- Kansas public schools cost study executive summary
- Public Education Finances 2004 (.pdf)
- Senate roll call on $148.4 million school finance plan
- Supreme Court's Show Cause Order (07-02-05)
- Supreme Court's Order Denying Extension (.pdf)
- Senate Concurrent Resolution No. 1603 (.pdf)
- Supplemental Note on Resolution No. 1603 (.pdf)