Recent Kansas school finance actions raise several constitutional questions

? A Kansas University law professor said one result of the new school finance law passed by the Legislature this week could be to halt the ongoing lawsuit over school funding and force the plaintiffs to start over with a new case.

“That’s a possibility,” said Rick Levy, who teaches constitutional law at KU. “I think personally, it’s hard to say it’s moot when there’s only a temporary alteration in place. If there was a more permanent plan in place, I think the argument might be stronger.”

But he said another possibility is that the battle between the Legislature and the courts could lead to the kind of constitutional crisis that occurred in 2005, when lawmakers initially refused to comply with a Supreme Court order to increase school funding, and the court threatened to close public schools until the Legislature did comply.

“Obviously, the first outcome is one that would avoid, at least for the time being, any serious conflict,” Levy said. “In the second case, the court says we’re not going to accept the Legislature’s actions, and then the ball goes back into the (hands) of the political branches, and they have to decide how to react. And I don’t think that would be pretty.”

At the center of the constitutional controversy is the ongoing school finance case, Gannon vs. Kansas, which challenges the current level of school funding on two fronts: the overall adequacy of funding; and how equitably that funding is distributed among the state’s 286 school districts and its more than 487,000 students.

The case is based on the Kansas Constitution, which requires the Legislature “to make suitable provision” for financing public schools, and which requires state government to give all citizens equal protection of the laws.

Last year, the Supreme Court ruled that certain categories of funding were inequitable, and it ordered the Legislature to increase so-called “equalization” funding that targets districts with lower property wealth in order to make their local property tax levies for school comparable to those with more property wealth.

But it remanded back to a three-judge district court panel the question of whether overall funding was adequate.

Lawmakers responded last year by increasing equalization aid. But the formulas they adopted ended up costing about $60 million more than they had expected, causing frustration among legislators who were already grappling with a growing revenue shortfall.

In December, though, the three-judge panel reaffirmed its earlier ruling that overall funding is not adequate to meet the needs of all students, especially those from disadvantaged backgrounds, because those students are more likely than others to score below proficiency on state assessments.

This week, at the urging of Gov. Sam Brownback, lawmakers narrowly passed a bill that completely repeals the existing formulas, revises the way equalization aid is distributed, and funds public schools through block grants for the next two years, during which time, Republican leaders have said, they will work on writing a new formula.

But in the midst of legislative debates last week, the three-judge panel issued an order in which the judges indicated they may intervene to prevent any changes to the formula from taking effect while the case is still pending.

Republican lawmakers called the court’s statement “unprecedented” and argued that it amounted to interference in the legislative process. But critics of the new funding plan have argued that trying to change the funding system while the case is still pending was also out of order.

Levy, however, said he doesn’t think what the Legislature did is unusual.

“In school finance litigation, it’s not at all uncommon that legislation that increases funding in response to court orders later is altered, amended, repealed or underfunded in ways that cause the plaintiffs to come back to the court and seek some sort of remedy,” he said. “And a lot of that involves reopening previously closed matters. So I don’t think any of that is unusual.”

Brownback is expected to sign the bill when it reaches his desk. But if the district court steps in to stop that law from taking effect, Levy said, it could lead to another constitutional showdown similar to the one in 2005.

“It’s possible. I don’t see any signs of the conflict over school finance going away,” he said.

Kansas Attorney General Derek Schmidt has appealed the panel’s latest ruling on adequacy back to the Supreme Court. Meanwhile, the district court has scheduled a hearing for May 7 on the plaintiffs’ motion to re-examine the issue of equity.