Kansas lawmakers plan to return to work next week—grudgingly.
Legislative leaders scheduled a special session, to begin June 22, after the state supreme court released an opinion this month declaring that the legislature must come up with $143 million for the new school year as a first step toward fixing the state’s school finance system.
To find the money, the legislature would have to raise taxes, generate new gambling revenues, or cut funds from other programs, said Rep. Becky J. Hutchins, the Republican who chairs the House education budget committee.
But Ms. Hutchins added that the legislature could do something else: nothing.
If lawmakers take that route, the justices would have little recourse, according to one expert on the state constitution.
“If it comes right down to a direct confrontation in which the legislature is willing to disregard the rule of law, … it’s hard to know ultimately what the court can do to force the legislature into line,” said Richard E. Levy, a law professor at the University of Kansas in Lawrence.
Urgent Action
The Kansas Supreme Court’s unanimous June 3 opinion is notable for its specificity and urgency.
“Additional funding must be made available for the 2005-06 school year to assist in meeting the school districts’ immediate needs,” the court said in explaining why it was ordering an additional $143 million for next school year.
What’s more, the court warned that it might order the legislature to increase financing by an additional $568 million for the 2006-07 school year, unless the legislature completes a valid analysis of education costs by the time it appropriates money for that school year.
For 2004-05, the state spent $2.4 billion on K-12 education. If the court ordered the second year of increases, K-12 spending would rise by more than 35 percent by 2006-07.
The court based its demands for additional funding on a 2002 study by school finance experts estimating that it would cost an extra $853 million to offer the “suitable education” that the Kansas Constitution guarantees the state’s children. In coming up with that total, justices adjusted the 2002 figures for inflation and considered the funding increases that the legislature has provided since then, including the $142 million increase already appropriated for 2005-06.
The court appears to have watched finance cases in other states, where legislatures’ failure to comply with general orders from courts has meant protracted litigation and several years to produce remedies, said the lead lawyer for the Kansas parents and school districts that sued the state.
“I think the Kansas Supreme Court has learned from the experiences of other states … to put this matter in a situation where it’s going to get resolved pretty quickly,” said Alan L. Rupe, who is based in Wichita.
Other states haven’t completed their work on school finance decisions as quickly as the Kansas court proposes.
For example, a New York state case that is seeking more financing for New York City schools is still unresolved almost two years after the state’s highest court ordered the state to provide additional funds to the city. The state has appealed a trial judge’s order to increase school spending in the city by 44 percent.
In the 1990s, New Jersey wrapped up its long-running finance suit only after the state’s highest court ordered the legislature to provide an additional $250 million for the poorest districts, said David G. Sciarra, the executive director of the Newark-based Education Law Center, which represents students in that case.
“It said: ‘Provide it. Right away. We’ve had enough,’ ” he said.
Some Kansas legislators, however, are reluctant to enact the court-ordered spending for the upcoming school year.
Rep. Hutchins suggested that the court is relying on a study that assumes schools should supply services that go far beyond what the state constitution should provide for. “Somehow, it morphed into something that the legislature did not want,” she said. The study, she said, was “all Christmas-tree-ed up.”
But Mr. Rupe said the court order was not “an unreasonable chunk of change,” given that lawmakers provided $900 million in tax relief on property and other items in the 1990s, he said.
As lawmakers in Kansas debate how much the state should spend on schools, some there are also suggesting the state needs a new way to select its supreme court justices.
Bigger Role for Voters?
The governor now appoints justices based on recommendations of a panel composed of citizens and of lawyers who are members of the Kansas Supreme Court bar. After justices have served six years, their names are put on a statewide ballot, and voters have the opportunity to recall them. Though such a vote is held every six years for each justice, none has ever been recalled through the process.
Of the six sitting justices, four were appointed by Republican governors and two by Democrats, including one by first-term Gov. Kathleen Sebelius. The court has one vacancy.
The system doesn’t give voters enough power over their supreme court, says a Republican group lobbying to change the state constitution so supreme court justices are elected to their posts outright.
“If justices are going to rule the people, they ought to be accountable to them,” said Tamara Cooper, the executive director of the Republican Assembly, a grassroots group of conservative Republicans.
To change the way justices are chosen, the legislature would have to put a proposal on the ballot for voters’ approval.
For now, though, the high court is sending signals that it will oversee the school finance system—at least until lawmakers come up with an acceptable fix.
In the concluding paragraphs of its opinion this month, the court said it would keep tabs on the case and review the legislature’s response.
“If necessary, further action will be taken by this court as is deemed advisable to ensure compliance with this opinion,” it concluded.
