School funding lawsuit could set stage for constitutional showdown

Labette County District Court Judge Robert Fleming, left, Shawnee County District Court Judge Franklin Theis, center, and former Sherman County District Court Judge Jack Burr, discuss an objection to the plaintiffs exhibit by the state on Friday May 8, 2015 in Topeka, Kan. The Dodge City, Hutchinson, Wichita and Kansas City, Kansas, districts are asking a three-judge panel to block the new school funding law. The new law took effect in April. It scrapped the state's per-pupil formula for distributing aid to public school districts in favor of predictable block

? Sometime in the next few weeks, or perhaps months, three judges will issue a ruling that could set the stage for constitutional showdown between the Kansas Legislature and the judiciary.

Plaintiffs in the school finance lawsuit Gannon vs. Kansas are asking the court to block implementation of the state’s new block-grant system of funding K-12 education.

They allege the law is unconstitutional because it fails to provide suitable funding for schools, short-changing them by roughly half a billion dollars a year, and that districts with the largest numbers of low-income and minority students are hurt the most.

Attorneys for the state, on the other hand, argue that striking down the law would leave no system in place for directing money to schools, thus closing schools across the state and shutting down public education in Kansas.

The Lawrence school district is not a party to the case. The four main plaintiffs are school districts in Kansas City, Wichita, Hutchinson and Garden City.

But last week, Lawrence superintendent Rick Doll released a letter to employees and families in the district saying the new funding system cuts state aid to Lawrence by about $2 million in the current academic year, which could force the district to transfer money out of reserve funds.

He also said that next year, the district may consider raising local property taxes to make up for some of the loss in state aid.

Memories of an earlier showdown

In 2005, during battles over the last school finance lawsuit, the Kansas Supreme Court threatened to close the state’s schools unless the Legislature appropriated more money, saying it could not allow the state to continue operating an unconstitutional funding system.

Conservative Republicans who led the Kansas House at that time dug in their heels, at first refusing to comply with the court’s order, which they said violated the separation of powers doctrine.

But in 2005, there were enough Democrats and moderate Republicans in the House to form a working majority and pass a bill, making it possible for conservatives to save face by voting against it.

That’s no longer the case. Conservatives now hold solid majorities in both chambers. And many of them still insist that education funding is a political decision that only the Legislature, not the courts, can decide.

Rep. John Carmichael of Wichita, an attorney and the ranking Democrat on the House Judiciary Committee, said that this time, a showdown between the courts and the Legislature could have dire consequences.

“We could see not only schoolhouse doors closed because the court enjoins the expenditure of funds under the block grant proposal, but we could also see the courthouse door padlocked,” he said.

Carmichael said he thinks that’s an unlikely outcome. “I think cooler heads will eventually prevail,” he said.

But Rep. Barbara Ballard, D-Lawrence, said it’s more likely that the public will pressure lawmakers to act on school finance before the courts are forced to step in.

“I think what will exacerbate that problem is Manhattan laying off 73 people in their schools,” she said. “Other districts closing early because they don’t have money. And when you close early like that, parents are not happy because now, that’s a child care issue.”

Saber rattling on both sides

Over the past several weeks, both the district court and the Legislature have sent signals that they’re prepared for a battle over school finance.

First, when lawmakers were debating sweeping changes to the school funding system in March, the court indicated it might issue temporary orders, “to protect the status quo.” It also directed the state treasurer and the director of the Division of Accounts and Reports to be named as defendants in the case, both personally and in their official capacities.

Presiding Judge Frank Theis said from the bench Thursday that those people needed to be named so that individuals responsible for administering the law could be held accountable for complying with any remedy orders the court might issue.

“That was clearly a shot across the bow,” Carmichael said.

Meanwhile in the Legislature, at the same time the panel was hearing testimony Thursday, the Kansas House passed a bill that tied funding of the judicial branch to enactment of several judicial policy measures.

Although none of those policy measures dealt directly with the authority of the courts, some observers said it sent an ominous signal that the Legislature could, in the future, tie judicial funding to other kinds of policies, and even withhold funds if the judiciary does not comply with the Legislature’s wishes.

“It certainly smacks of dangerousness,” said Washburn University law professor Bill Rich. “That whole concept that you can’t retaliate against judges is a pretty fundamental concept of U.S. constitutional law. But it’s a little harder to apply to state courts because state constitutions are all so different.”

Other measures still pending in the Legislature suggest that political animosity toward the court still has not died down since the previous showdown in 2005.

Among them is Senate Bill 297, which would list “attempting to usurp the power of the legislative or executive branch of government” as grounds for impeaching a Supreme Court justice. The bill is pending in the Senate Judiciary Committee.

Other measures introduced this year would change the way Supreme Court justices are selected, and one bill would lower the mandatory retirement age for judges.

Keeping calm for now

For the time being, at least, key Republicans in the Kansas House are not worrying about how the court might rule.

“I hope the courts do what’s best for all students,” said Rep. Ron Ryckman, Jr., R-Olathe, who chairs the Appropriations Committee. “I would assume that any decision that’s made will not be the final say. We’ll have time to discuss it. We’ll have more input from more people.”

Judiciary Committee Chairman John Barker, a retired judge from Abilene, said any decision from the panel will be appealed to the Supreme Court. “And if the Supreme Court affirms that decision, that’s law. We follow the law,” he said.

“These are all hypotheticals,” he said. “Let’s wait for the court process. The courts are always slow and methodical. And when they work through their system, then we’ll come back and work through the legislative process.”