Topeka The conservative think tank Kansas Policy Institute announced plans Monday to launch a new legal branch that will push for school choice initiatives such as private school vouchers, even if that means suing in court.
KPI president Dave Trabert said the new Kansas Justice Institute will focus on holding schools accountable for making sure students have access to quality education, something he said many schools are not doing now.
"Kansas Justice Institute's first client may well be low-income students who are being deprived of the education they deserve," Trabert said.
Trabert was joined at a news conference by attorney Mike O'Neal, a former Kansas House speaker and president of the Kansas Chamber; and Wade Moore, founder and dean of the Urban Preparatory Academy in Wichita, a private school that caters specifically to low-income children in poorly performing public schools.
Both KPI and O'Neal have been critical of some of the Kansas Supreme Court's earlier rulings on school finance issues. However, O'Neal said those rulings have provided a legal framework that he believes could be used to launch an entirely different kind of litigation that could lead to court-ordered school choice options.
The theory behind such a case, he said, is that the Supreme Court has established that education is a right protected by the Kansas Constitution. And in the current lawsuit still before the court, it has said that the adequacy of school funding is determined by the outcomes it produces.
Kansas courts have never recognized that people have a right to sue the state or a school district for failing to provide an adequate education, but O'Neal said those recent decisions have dramatically changed the legal landscape.
"With that, and with the new definition of adequacy, the new standards, the statutory standards that the court has said we have to follow, there are enough duties in there that there's no longer an argument that can be made that the state is immune from liability for failure to deliver on the promise of education that the court has said is a constitutional right," O'Neal said.
He said a case would be based on student achievement scores. Schools or districts that routinely show wide achievement gaps between lower income and upper income students, or between racial and ethnic subgroups, could become the target of a lawsuit. In such a case, the plaintiffs could ask the court to order the district to pay for private school options as part of a remedy for what he called "educational malpractice."
That legal theory is currently being tested in a federal court in Connecticut where a national conservative foundation Students Matter filed a lawsuit in August seeking to strike down state laws that limit the availability of charter schools, inter-district magnet schools and voluntary transfers between urban, suburban and rural districts.
The state of Connecticut has filed a motion to dismiss the case, based in part on the 11th Amendment of the U.S. Constitution which says a person from one state cannot use federal court to sue the government of another state.
Trabert said the Kansas Justice Institute will also be involved in other legal issues such as civil asset forfeiture and professional licensing regulation.
He said the new program is part of KPI's effort to create what he called a "permanent freedom infrastructure," a network of organizations that share KPI's core beliefs regarding education, limited government and personal freedom.
That network also includes a new news service, the Sentinel, which KPI launched late last year.
Although the groups are affiliated with one another, Trabert said each will be run by its own separate board of directors.
He said he hopes the Kansas Justice Institute will become fully operational sometime next year.