Kansas lawmakers pass resolution on school bathroom use, don’t take action to keep schools open

Kansas Senate Majority Leader Terry Bruce, R-Nickerson, speaks with reporters during a break in the chamber's session with lawmakers trying to decide whether to tackle a school funding bill, Wednesday, June 1, 2016, at the Statehouse in Topeka, Kan. (AP Photo/John Hanna)

? Kansas lawmakers formally adjourned the 2016 legislative session Wednesday without addressing last week’s state Supreme Court decision that threatens to close public schools because of inequitable school funding.

But the Senate did pass a resolution opposing new federal guidelines that say schools must allow transgender students to use restrooms that correspond to their gender identity.

Sen. Marci Francisco, D-Lawrence, said it was a disappointing session overall.

“We passed a budget that’s unbalanced and a school finance plan that’s unconstitutional,” she said. “So both today and back in May when we had the motion to adjourn, I voted no.”

Lawmakers did discuss the school finance issue in party caucus meetings Wednesday, but GOP lawmakers could not agree on what path to take.

In a Senate Republican caucus meeting that lasted more than an hour, a few said they wanted to dispense with the issue immediately. But others said they hadn’t had enough time to study the decision since it was handed down late Friday.

And still others, including Sen. Mitch Holmes, R-St. John, openly talked about defying the Supreme Court.

“Why don’t we just have a statute that grants amnesty to everyone that is in the funding chain, between the state treasurer, all the way down to the school board and superintendent, that says they are immune from any contempt of court charge and that schools are to open this year?” Holmes said. “If the court decides to strike that down, we (can) have an agreement with the governor who will grant a pardon to anybody that the court attempts to charge with contempt of court, and we’re going to keep the schools open.”

Senate Majority Leader Terry Bruce, of Hutchinson, said he doubted the court would accept any plan the Legislature puts forth, and he accused the court of acting out of political self-interest because five of the seven justices are up for retention this year.

“There’s been a lot of talk, and a lot of attorneys have come to the conclusion that the Gannon (v. Kansas) decision was a political decision,” he said. “It wasn’t legal, it was political, with the intent to take the focus off the Carr brothers and abortion bills that are before the court and place it on education in order to help bolster their retention elections. And that whatever remedy we think we may be passing, they’re going go out of their way to strike it down in order to keep that narrative going.”

That was a reference to the court’s 2014 decision vacating the death sentences of Jonathan and Reginald Carr, who were convicted of a brutal mass murder that took place in Wichita in 2000, as well as a case currently under review challenging a law enacted this year banning a certain kind of abortion.

But Sen. Jeff Longbine, R-Emporia, said he preferred to deal with the issue immediately so that he and other lawmakers running for re-election can focus on their campaigns.

“I don’t want to go into a special session,” he said. “I don’t want to go into explaining to my people why schools are closing on July 1. I realize they’re playing games with less than 1 percent of our school budget. But that’s less than 1 percent of our budget too. It’s not their fault we don’t have the money. In my opinion, we ought to move on down the road.”

In its decision Friday, the court struck down the system lawmakers enacted this year for distributing equalization aid for school districts’ local option budgets, or LOBs.

LOBs were originally enacted in 1992 as part of a school funding plan that allowed districts to raise a limited amount of money through local taxes, above and beyond what the state provided, to enhance local programs. But the court noted that since then, base per-pupil aid provided by the state has declined, while lawmakers have continually lifted the cap on LOBs, to the point where now those local option budgets have become essential to basic school operations and now make up roughly 25 percent of all school funding.

The equalization aid is meant to subsidize the LOBs of districts with less property wealth so they don’t have to levy significantly higher property taxes in order to raise comparable amounts of money that wealthier districts can raise.

But the court said under the system lawmakers enacted this year, there are still wealth-based disparities large enough to make the plan unconstitutional.

It pointed to the Eudora school district, which could raise a 25 percent LOB by levying 14.1 mills in property tax. But the Valley Heights school district in north-central Kansas would have to levy almost double that, 22.2 mills, to raise the same 25 percent LOB.

The Burlington school district, which is home to the Wolf Creek Nuclear Power Plant, could levy a 25 percent LOB with only 4.359 mills, but the Brewster school district in far western Kansas would have to levy 21.8 mills, more than four times as high as Burlington.

Although the court did not order a specific remedy, it said the Legislature could cure the problem by reinstating the previous LOB formula and fully funding it, which state officials have estimated to cost about $38 million for the upcoming school year.

Senate Ways and Means Committee Chairman Ty Masterson, R-Andover, said his committee still had a bill that could be used as a vehicle for making that change. But after more than an hour of discussion, there was no consensus among Senate Republicans, who control 32 of the Senate’s 40 seats, to move forward.

House Republicans held similar meetings Wednesday and found a similar lack of consensus within their caucus about moving forward.

Rep. Boog Highberger, D-Lawrence, said he wasn’t surprised the Legislature took no action during the Sine Die session.

“Obviously we have to do it at some point. Today would have been too rushed, I think. So I’m hoping we can come back sometime relatively soon so we can do our jobs,” he said.

That means it will be up to Gov. Sam Brownback to call a special session later this month if lawmakers are to respond to the court ruling by the June 30 deadline.

Brownback issued a statement at the end of the day, but gave no indication about whether he plans to call a special session.

“I will work with the Attorney General and Legislative leadership to respond aggressively and appropriately to any action taken by the Kansas Supreme Court to close our schools,” he said in the statement. “Kansas has great schools and they should remain open. The courts should not be playing politics with our children’s education.”

Transgender bathrooms

After the caucus meeting, the Senate came back into session to deal with the one school-related issue that Republicans were prepared to tackle: a resolution criticizing the Obama administration’s new guidelines directing schools to allow transgender students to participate in activities and use sex-segregated facilities such as bathrooms and locker rooms that correspond to their gender identity.

The guidelines from the departments of Education and Justice are intended to help districts comply with Title IX of the Civil Rights Act of 1964. Also known as the education amendments, it bans gender-based discrimination in any educational institution that receives federal funding.

Attorney General Derek Schmidt said Wednesday that the state would challenge the Obama administration’s directive in court, although he has not yet decided whether to join a lawsuit by 11 other states or sue separately.

Senate President Susan Wagle, R-Wichita, who was the chief sponsor of the legislative measure, said school districts in her area had approached her with concerns that the guidelines would lead to boys having access to girls’ restrooms and locker rooms, allowing them to see and possibly even touch girls who are undressed, if the boy merely claims to be a transgender girl.

The resolution had 30 other co-sponsors, including Sen. Steve Fitzgerald, R-Leavenworth, who described transgender identity as a form of insanity. He said the new federal guidelines were part of a radical political agenda pushed by author Saul Alinsky that he feared would lead to the destruction of Western civilization.

Sen. Tom Holland, D-Baldwin City, called that a “schizophrenic comment, devoid of reality.”

The resolution passed on a party-line vote, 30-8, with all eight Democrats arguing that Republicans were only using controversy over school bathrooms to divert the public’s attention away from the issue of school funding.

“I find it fantastical that the Senate President, on the last day at Sine Die, when we don’t have a balanced budget, and we don’t have a constitutional way of funding our schools, would bring this resolution to the floor so we can debate about where transgender kids pee,” Holland said.