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.