Kansas school shutdown would follow New Jersey’s contentious path 40 years ago

Kansas Supreme Court Justice Marla Luckert, center, asks a question to the state as they make their arguments in front of the Kansas Supreme Court, Tuesday May 10, 2016, in Topeka, Kan. The court was hearing arguments Tuesday on whether the technical changes approved by lawmakers earlier this year are fair enough to poor districts that the justices can abandon a threat to shut down public schools. (Chris Neal/The Topeka Capital-Journal via AP)

? Close schools? Cut off state funding? Fine a state for contempt of court?

What if state officials refuse?

While this could soon be the scene in Kansas, it was the real drama in New Jersey 40 years ago.

New Jersey shut down its schools for eight days in 1976 in a constitutional crisis similar to Kansas’ situation today. The New Jersey Supreme Court even set the same deadline — June 30 — to fix an unconstitutional funding formula.

The justices and the attorneys wrangled over what to do in stressed hearings as the deadline neared, recalled Paul Tractenberg, a retired Rutgers University law professor who was there as one of those attorneys.

“These were long, multi-hour arguments,” he said.

The frustrated justices, looking for leverage to compel the state to fund public education appropriately, were torn over using the hammer that would close schools.

“There were strong dissents,” Tractenberg said. Justices saw the irony of closing schools to enforce the constitutional right to a thorough and equitable public education.

He remembers one of the justices saying, “Shouldn’t we be doing something to preserve their education?”

Ultimately the justices decided preserving education was exactly what they were doing when they barred the state from funding its education formula until it established a plan to fund it adequately.

New Jersey at that time had no state income tax but needed one, many lawmakers thought. And in the eight days schools were closed, the New Jersey Legislature approved its plan for a tax.

End of story? Hardly.

The New Jersey drama was just one of the early battle zones in what have been recurring waves of court struggles over states’ obligations to educate children fairly.

The same struggle played out again in New Jersey and most other states in the nation — including, of course, Kansas.

“Forty-six states (including Missouri) have had some kind of form of school litigation since the 1970s,” said Daniel Thatcher, an education finance specialist with the National Conference of State Legislatures.

“What may be bandied about (in legal arguments) is that the courts have been overreaching into the affairs of the other branches of government. But in most of the states, the supreme courts have been willing to step in.”

The Kansas Supreme Court for more than a decade has been judging the Legislature’s efforts to comply with rulings against the state in both the Montoy and Gannon v. Kansas cases.

The frustrated court threw down its hammer May 27, ruling that if the Legislature didn’t amend its latest funding formula by June 30 to be equitable to poorer districts, the state will be barred from raising, distributing or spending education funds until it does.

It wasn’t the first time a state high court — or even Kansas’ high court — had thrown down such a mandate.

But this deadline is particularly striking, said Michael Rebell, professor of law and educational practice at Teachers College, Columbia University.

“This time the court stance is stronger,” Rebell said. “And the fact that they reiterated it this close to a deadline shows they mean business.”

On Tuesday, Kansas Gov. Sam Brownback announced that he was calling the Legislature into a special session “to keep Kansas schools open.”

He is not happy about it, saying in his statement, “It is distressing that the Kansas Supreme Court has put the schools and legislature of Kansas in this position.”

The timing of the deadline is probably significant, Tractenberg said. While schools have a lot to worry about in shutting down in July, it still is weeks ahead of the fall school year.

He can’t know what was in the minds of the New Jersey justices, Tractenberg said, but “would they have shut down schools in the middle of the school year? I’d think no.”

A lot of pressure had been building in New Jersey to enact a state income tax, he said, and perhaps the justices were anticipating — correctly — that the lawmakers would make that leap.

Kansas comes with its own tax issues, with cuts in its income tax in 2012 stressing the state’s budget in 2016.

During those long, contentious hearings in New Jersey ahead of the deadline, the courts and the attorneys argued over other options than shutting off funding to education.

The court acknowledged that it wasn’t its role to appropriate money, but could it order redistribution from unconstitutional functions to constitutional obligations? Could it simply hold the Legislature in contempt? And then what? Issue fines?

That is what’s happening in the state of Washington. The state has been fined $100,000 a day since August 2015 while lawmakers try to fulfill a promise to the court to remedy funding issues.

The weakness in the court’s approach is becoming increasingly apparent, Thatcher said.

The fine doesn’t hold the Legislature’s feet to the fire, and the dollars are simply being stored until they can be redirected into a new education funding formula that meets the court’s approval.

“They don’t feel a pinch,” Thatcher said. “It’s like a circular fund that’s only benefiting the banks doing the transfers.”

The Kansas Legislature, however, is clearly feeling a pinch. And while many lawmakers are urging each other to fix the situation, an air of defiance still emanates from many legislative offices.

The prospect of a defiant legislature is uncharted waters, Thatcher said. New Jersey quickly complied.

But at the U.S. Supreme Court level, history remembers how President Andrew Jackson, when faced with a high court ruling that would have blocked the forced removal of the Cherokee Nation in the 1830s, infamously defied the court without consequence.

“The judiciary is limited in its ability to enforce its orders,” Thatcher said.

In education finance, the U.S. Supreme Court in 1973 ruled in San Antonio vs. Rodriguez that it was not the federal court’s role to influence how states meet their education obligations.

But the court, in its last footnote, Thatcher said, opened the door to a wave of state-level cases when it said, “Of course, nothing in the Court’s decision today should inhibit further review of state educational funding schemes under state constitutional provisions.”

The first wave of cases came from plaintiffs mostly arguing against state systems in which property-rich districts were reaping the rewards of tax levies far above the abilities of property-poor districts, Thatcher said.

Then another wave followed in the late 1980s and ’90s as plaintiffs began arguing that the overall adequacy of state funds was failing to meet constitutional obligations.

More often than not, he said, plaintiffs have been winning.

Tractenberg, 78 and retired, would spend most of four decades on that front line. After Robinson v. Cahill — the original case that included the temporary shutdown of schools — came the long line of Abbott v. Burke cases in New Jersey. He also helped found the Education Law Center and advised on other cases across the country.

“If someone had told me in 1973 that the result would be tens of billions of state dollars to help urban school districts, I’d have said, ‘What are you smoking?'” Tractenberg said.

But while there has been a “tremendous” reallocation of state aid, he said, persistent achievement gaps and uneven education quality, state to state and school to school, chill any celebrations.

“It’s a fight,” he said, “every inch of the way.”

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