As the Kansas Legislature tries to fix one set of constitutional problems with education funding, it'll be interesting to see whether they create a whole host of new ones, or at least open up a can of constitutional worms, simply in the way they're going about it.
The Kansas Supreme Court recently ruled that lawmakers have violated their duty under Article 6 of the Kansas Constitution by failing to provide "equitable" funding in two areas of public school finance. But in their attempt to solve that problem, lawmakers may be creating new problems stemming from Article 2 of the Constitution dealing with legislative powers: the ban on multiple subjects in a single bill and the limits of the governor's line-item veto authority.
Article 2, Sec. 16 provides that, “No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes.” (Emphasis added.) The problem is that the school finance bills now wending through the House and Senate do both – appropriate money and revise existing statutes.
Attorneys in the Revisor of Statutes office, the Legislature's official legal counsel, are saying that's okay, as long as the appropriations and the statutory changes all relate to the same topic, in this case “education.”
But here, lawmakers may be pushing the limits on that. On the Senate side, at least, the policy changes relate directly to the school finance formula itself - tweaking (or eliminating) different "weightings" that affect how different types of students are counted.
But on the House side, often the more ambitious and less disciplined chamber - GOP leaders are going after broader policy changes, such as teacher licensing requirements and setting up a new, independent "commission" outside the authority of the State Board of Education to recommend ways schools can become more efficient. Earlier version of the House bill included a massive expansion of charter schools and authorization for incentive-based bonuses that principals, at their sole discretion, could dole out to favored teachers.
Assuming, for the sake of argument, that those measures pass the one-subject-per-bill test, they would still raise another question: How much authority, if any, does the governor have to “line-item veto” any of those measures - or any individual paragraphs within them - without rejecting the overall bill in its entirety?
Article 2, Sec. 14(b) states: “If any bill presented to the governor contains several items of appropriation of money, one or more of such items may be disapproved by the governor while the other portion of the bill is approved by the governor.”
Two key phrases here are “several,” and “such items?”
The standard rule in journalism is that “several” means at least seven or more, but that's just journalism. In the Legislature, "several" could easily mean anything more than one. And each of the bills now pending in the Legislature contain exactly two: one for capital outlay funding; and one for local option budgets.
But these bills contain many “items” besides appropriations. So where the Constitution says the governor can veto one or more “such items,” does that refer only to items of appropriation, or any "items" in the bill, whether they appropriate money or not?
A plain reading would seem to suggest the former. But this is where previous Legislatures have already made a mess of things, and thereby established precedents that may not be to anyone's liking. They're called “provisos,” and here's how they work:
“There is hereby appropriated for the (fill in agency's name here) the sum of $1 million, provided that no such money shall be spent unless or until said agency adopts a particular policy that a tiny cabal of low-level legislators would like, but the other chamber would never accept unless we use this amateur tactic to hold the entire budget process hostage until we get what we want, at least for one year.”
Kansas lawmakers have made increasing use of the proviso over the last 10-15 years by using the entire state budget as a bargaining chip to get a policy change in one or more area of government. And as they have done so, governors have claimed a corresponding expansion of their line-item veto authority. That is, they have line-item vetoed the proviso language without vetoing the money attached to it.
Former Gov. Kathleen Sebelius, a Democrat, did that on more than one occasion, much to the consternation of Republicans who thought she was stretching her constitutional authority. But the pending school finance bills have the potential to elevate this power game to a whole new level.
Take, for example, the language calling for a new “efficiency” commission: If that were presented to the governor as a stand-alone bill, he could either sign it or veto it in its entirety. He could not strike out individual paragraphs – like the ones giving minority party leaders appointments to the commission – while leaving the rest of the bill allowing Republican leaders to make appointments in tact.
But could he do that to language inside a mega-bill that also contains appropriations? Officials in the Revisor of Statute's office wouldn't opine on that question Monday. And as for the governor's office? “We are not commenting on pending legislation,” Brownback's press secretary Sara Belfry said via email. “The Governor will carefully review and consider all aspects of this bill once passed by both legislative houses.”
Meanwhile, lawmakers can take solace in one historical fact. It is rare for courts to strike down any legislative act for violating the one-topic-per-bill rule, and rarer still to do so strike down an illegal line-item veto. Because before any court could do so, some "aggrieved party" would have to challenge it in court. And in this case, someone who's aggrieved by one aspect of the bill likely has an interest on the other side, and therefore doesn't want to risk seeing the entire act overturned on a technicality.
That is the art of compromise.
The Kansas Supreme Court has given the Legislature until July 1 to correct two problems in the state's school funding system, but school districts themselves are facing an earlier deadline, and it's one that Lawrence Superintendent Rick Doll says he'd rather not even think about.
By May 16, under Kansas law, school districts have to notify any teachers whose contracts they do not intend to renew for next year. And if Kansas lawmakers don't fix the equity problems in the Local Option Budget formula, a lot of teachers could be getting those notices.
According to the Supreme Court's ruling last week, if lawmakers haven't fixed the problem by July 1, the district court "should enjoin operation of the local option budget funding mechanism ... or enter such other orders as it deems appropriate."
Translation: If lawmakers fail to fix the problem, the entire LOB funding mechanism gets shut down. Districts will no longer have them. In the Lawrence school district, that would mean a loss of nearly $24 million. Statewide, it's a little over $1 billion, according to Deputy Education Commissioner Dale Dennis.
The constitutional problem is that lawmakers haven't been fully funding the "equalization formula" for LOBs — additional aid the state kicks in for lower-wealth districts so that rich and poor districts can levy roughly the same property tax rates to raise similar amounts for their LOBs. Because of the under-funding of that formula, poorer school districts have either had to levy higher taxes or cut their budgets. Either way, the court said, students and taxpayers in those districts are being treated unfairly.
It would cost the state an additional $104 million to fully fund that formula, but the court allowed for the possibility that lawmakers could find some other way to solve the equity problem. If the Legislature does anything less than restore full funding, the issue goes back to the district court for review to determine whether the new funding amount is still unconstitutional.
The concern for school districts is that when May 16 rolls around, they still may not know whether lawmakers have fixed the problem. And at that point, Doll and his fellow superintendents around the state may face some difficult decisions, like how many pink slips to hand out and who should get them.
So, here are the dates to keep in mind as the deadlines approach:
• Friday, April 4: The scheduled last day of the regular session. After that, lawmakers typically take a break for about three and a half weeks before returning for the "veto session." In recent years, though, most big budget issues have remained unresolved at this point in the session.
• Tuesday, April 15: The day lawmakers get the new, official revenue estimates for the upcoming fiscal year. By law, whatever budget they pass has to balance with these revenue figures. And because of tax cuts that lawmakers approved in 2012, experts have projected that next year's revenues could fall as much as 6 percent.
• Tuesday-Wednesday, April 29-30: Approximate date for the start of the wrap-up session. The exact date hasn't been set yet. Traditionally, the wrap-up is only supposed to last three or four days, but in recent years, it's dragged on for considerably longer. The main task during the wrap-up is to hammer out a final budget that balances with the new revenue estimates. This is when lawmakers will have to decide whether, or to what extent, they want to comply with the Supreme Court ruling.
• Friday, May 16: Deadline for school districts to notify teachers of nonrenewal of their contracts.
• Tuesday, July 1: Deadline set by the Supreme Court for lawmakers to cure the inequities found in the current school funding mechanism.
The Kansas Supreme Court accomplished one remarkable thing with its school finance ruling last week. It threaded the needle so carefully that nearly everyone — at least in the political arena — walked away feeling like they'd won a little something.
That's not bad, considering that before the decision nearly every news outlet, from the Winfield Courier to the New York Times, was predicting the decision could lead to a constitutional showdown with the Kansas Legislature.
Instead, Republicans walked away feeling validated that the court had paid due deference to the Legislature's role in setting budgets. And Democrats walked away armed with new ammunition to claim Republicans have underfunded schools, especially poorer schools.
Politically, it was a master stroke that avoided a potentially bitter confrontation that could have permanently damaged the court itself. But it may have come at a huge cost to schools. Because by backing away from the “actual cost” model of determining adequate funding, and instead adopting the so-called “Rose” factors, the court lowered the bar for what can be deemed a constitutional level of funding in Kansas.
The Rose factors lay out a set of educational outcomes that the Kentucky Supreme Court ruled was sufficient for that state in 1989. They specifically reference outcomes in reading and writing, social studies and government, health, the arts and vocational training. They suggest that students coming out of Kentucky public schools should have sufficient knowledge, skills and training in those areas "to function in a complex and rapidly changing civilization," and to "compete favorably with their counterparts in surrounding states."
Here are three things to remember about the Rose standards:
First, they were established 25 years ago, before advent of the Internet, and before the subsequent shift in the United States to a knowledge-based economy.
Second is the noticeable absence of two key words from those standards: “science” and “mathematics.” They appear nowhere in the seven-point Rose test. Nor, for that matter, do the words “technology” or “computer literacy.”
And third, they mention nothing of the fact that students in the 21st century are expected to compete in a global marketplace, not just against those in "surrounding states."
So by adopting the Rose standards as the constitutional touchstone for school finance in Kansas, the Supreme Court has made Missouri and Oklahoma the standards of acceptability for educational outcomes, even though students' primary competitors today are more likely to be found in places such as China, India and the European Union.
By harkening back to Kentucky at the end of the industrial age to set 21st century educational standards for Kansas, the Court ignored one fact. We already have an institution in Kansas endowed with constitutional power to set such standards. It's called the Kansas State Board of Education, a democratically elected body that has already established curriculum and accreditation standards, including science and math, that far exceed those envisioned by the Rose court.
The question now is to what extent the Kansas Supreme Court has undercut the state board by giving the Legislature a free pass to fund Kansas schools at a lower standard.
Lawyers in the pending Kansas school finance case Gannon vs. Kansas may be testing the limits of their own vocabulary — not to mention everyone else's — in making their final written arguments to the Kansas Supreme Court.
As you may recall, the case turns on whether the Legislature has violated the Kansas Constitution's requirement to make "suitable provision" for school finance. Earlier this year, a special three-judge panel ruled that current funding is unconstitutionally low and ordered the legislature to increase it. The Supreme Court, which upheld a similar ruling in 2005, will now review the question.
That case is set for oral argument next Tuesday. In the days leading up to the showdown, several amici curiae, or "friends of the court" have filed briefs, prompting reply briefs by attorneys for the actual parties.
In one response brief, attorneys for the state actually reached back into Greek mythology to illustrate their point, with a little help from the Nebraska Supreme Court, which first used the phrase.
Arguing that the court should not engage in the business of trying to run public schools or make policy decisions about how much money schools should get, the state quoted the Nebraska court, which ruled on a similar question in 2007:
"[The] landscape is littered with courts that have been bogged down in the legal quicksand of continuous litigation and challenges to their states' school funding systems. Unlike those courts, we refuse to wade into that Stygian swamp."
There is no indication in the brief to suggest who wrote it. There is little doubt, however, that whoever wrote it used that swampy quote — out of the nearly infinite number of quotes they could have used — because it perfectly sums up the utter contempt that the state's lawyers have for the plaintiffs' case.
In fact, throughout their response, the state's attorneys don't even really refer to the plaintiffs' case. They call it a "case" — in quotation marks, suggesting they really don't think it deserves to be called one.
Although less prosaic in their brief, the plaintiffs didn't show any greater level of respect in replying to the amicus brief by former Kansas State Board of Education member Walt Chappell, the only outside party to intervene in support of the state's position.
Chappell now is the president of his own company, Educational Management Consultants. In his spare time, he's been organizing parades of people to come before the current state board and speak out against the new English and math standards known as Common Core.
Chappell argued in his brief that schools have plenty of money, and they simply need to be more efficient with it. He suggested saving half a billion dollars by consolidating school districts. He also suggested requiring teachers to work longer hours and changing the definition of "at-risk" students to decouple that designation from poverty status.
In response, the plaintiffs said Chappell had actually summed up the state's own position pretty well, and called his ideas "a self-contained demonstration of the completely reality-free school funding decision-making that would result" if this court accepts the state's arguments.
That's just a sampling of the arguments the lawyers have been making in writing. On Tuesday, they'll get to argue verbally in front of seven justices, and each other.
The court has set aside 60 minutes for oral arguments beginning at 9 a.m. Tuesday.
The Kansas Supreme Court today granted two requests by outside parties to file amicus curiae, or "friend of the court," briefs in the pending school finance suit.
Without comment, and over the objection of attorneys defending the state of Kansas, the Court gave permission to the Education Law Center, a New Jersey-based organization that advocates for students' rights and school funding.
It also granted permission to Walt Chappell, a former State Board of Education member who now runs a consulting business, Education Management Consulting.
In recent months, Chappell has been instrumental in organizing groups of people to come to state board meetings and speak out against the Common Core standards for reading and math.
Chappell was elected as a Democrat in 2008, but later switched parties and became a Republican. He was soundly defeated for reelection in the 2012 GOP primary by current board member Kathy Busch.
A side note about the school finance case that has probably gone under-reported is the fact that Justice Carol Beier has recused herself from the case.
According to Court records, Beier announced her recusal on Jan. 11, the day the notice of appeal was filed. The Court announced it publicly in March at the same time it ordered the state and plaintiffs to try to mediate the dispute - a mediation effort that was ultimately unsuccessful.
As is common with recusals, Beier did not offer a public reason for stepping aside.
That could turn out to be important later on. In the last school finance case in 2005, Beier wrote a concurring opinion, arguing that the Court should have gone further than it did. She argued the Court should have declared education to be a "fundamental right" under Kansas law, and the 14th amendment to the U.S. Constitution.
In legal parlance, that normally means that courts must apply "strict scrutiny" to any governmental action that interferes with a fundamental right. The burden then shifts to the government to show that its actions are necessary to achieve a compelling state interest, and that the actions are narrowly tailored to achieve those interests.
Beier said the Court could still apply the lower "rational basis" test in school finance disputes, as long as the inequities in the system are not so "egregious that they actually or functionally deny the fundamental right to education to a segment of otherwise similarly situated students."
Two other justices - Robert Davis and Marla Luckert - joined her in that opinion. That's one vote short of a majority on the seven-justice Kansas Supreme Court, but with Beier recusing herself, and other personnel changes on the Court, it's hard to predict how that will shake out this time.
Since 2005, four of the seven seats on the bench have changed hands, including Davis'. All four were appointed by Democratic Govs. Kathleen Sebelius and Mark Parkinson.