Posts tagged with Strict Scrutiny

Court grants permission for amicus briefs; Beier recusal

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.

Beier recusal

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.