School finance and the Kansas Constitution

Immediately after a three-judge panel issued its decision in the Kansas school finance lawsuit Friday, statements and pronouncements started flowing out of the statehouse about separation of powers, legislative authority and out-of-control courts stepping beyond their bounds.

“The Kansas Legislature, not the courts, has the power of the purse,” Gov. Sam Brownback said in a statement after the ruling.

Newly-elected House Speaker Ray Merrick took to Twitter to express his outrage: “(The Kansas Legislature) – not the unelected court system – allocates taxpayer funds. We’re accountable to balance needs of all Kansans.”

Given that, a few words about the Kansas Constitution – and how it differs from the U.S. Constitution – might be in order to help everyone better understand where this decision came from.

First, unlike the federal document, the Kansas Constitution puts its Bill of Rights up front, at the top of the document, not tacked onto the end like it was some kind of afterthought.

Second, where the federal document is somewhat vague about its philosophical underpinnings, the Kansas Constitution states it explicitly. I’m talking here about the fundamental nature of political power – from whence it comes and where it goes – and the nature of the relationship between the people and their government.

“All political power is inherent in the people, and all free governments are founded on their (the people’s) authority, and are instituted for their equal protection and benefit.” So states Section 2 of the Kansas Bill of Rights.

In other words, what the people giveth, the people can taketh away. The Kansas Legislature may be vested with certain powers, but only those powers that the people have expressly granted to it. Furthermore, “the people” retain the right to amend, abridge, or even revoke certain of those powers at their discretion.

And that brings us to Article 6, Section 6 – the language dealing with school finance – where “the people” of Kansas did exactly that.

In 1966, the voters of Kansas approved an amendment to the Kansas Constitution which says, in part, that the legislature “shall make suitable provision for finance of the educational interests of the state.”

Note the word “shall.” This is not an option.

The question here is to what extent the people, through that amendment, took away the legislature’s discretion to decide on its own how much (if any) of the taxpayers’ money will go to education. It has to be a “suitable” amount.

So now we get to the question of how to define “suitable” and, more specifically, which branch of government has the authority to decide on that definition.

The judicial branch has long enjoyed the power to interpret the constitution. But here, we’re talking about interpreting the appropriateness of a specific line item in the state budget, which is typically a legislative responsibility.

Plaintiffs and their supporters argue that the legislature has free reign to decide other parts of the budget because there is no constitutional mandate for them. But wen it comes to education funding, the Kansas Constitution imposes specific responsibility.

That was the issue taken to the Kansas Supreme Court in 2005 in the case of Montoy vs. Kansas. That case was fully litigated. Lawyers on both sides made their points and presented their evidence. The Court, in a clear, unambiguous and unanimous decision ruled that the legislature does not have discretion in this area. Funding has to be based on the actual costs of providing all the required services.

It’s a classic case of “unfunded mandates.” Over the years, the Kansas Legislature has passed numerous laws imposing costs on school districts. Among them:

• Compulsory attendance laws requiring all children to be enrolled in school.

• High school graduation requirements, setting out the courses students must take (and, therefore, schools must offer) in order to earn adiploma.

• Qualified admissions standards setting out an even tougher battery of courses students must take to qualify for admission to one of the Regents universities.

• Accreditation standards spelling out the level of academic performance students in a school must achieve for the school to continue operating. Those standards also require schools to hire teachers who are fully qualified to teach their classes.

Then there is a whole laundry list of federal mandates – starting with No Child Left Behind and other parts of the Elementary and Secondary Education Act – which the legislature has tacitly accepted and imposed on local schools by accepting the federal funding tied to those federal requirements.

In short, the Montoy court said, you can’t impose those requirements on schools and then not give them the money it takes to fulfill those requirements. The Kansas Constitution doesn’t allow it.

In last week’s case, Gannon vs. Kansas, a new trial court essentially followed the precedent in Montoy. Now, the legislature could have tried to make a case that current funding does represent the actual costs. All they had to do was build a record in committee hearings, with evidence, to show that all of those mandates could be fulfilled at the cost being appropriated. They were even advised by constitutional law professors to do that very thing. But lawmakers chose not to.

During the Gannon trial last summer, the state’s defense team relied on testimony from economists who argued (a) there is no way to determine actual costs, because various studies don’t account for different levels of efficiency; (b) there is no direct correlation between increasing spending by a specific dollar amount and any corresponding increase in student achievement; and (c) that increasing funding to the levels the plaintiffs sought (upwards of $1.5 billion, instead of the $442 million they actually got, would hurt the Kansas economy and starve other state programs.

But the trial court, in its ruling Friday, rejected those arguments by noting the state presented no alternative measures of actual costs. And the judges pointedly dismissed the argument that the state couldn’t afford a spending increase when it had just passed a multi billion-dollar tax cut.

The case is now headed to the Kansas Supreme Court. Attorneys for the plaintiffs estimate that process will take about a year.