On Jan. 11, a panel of three state court judges ordered Kansas lawmakers to boost school funding and resurrected a constitutional conflict that has been simmering in Kansas politics for most of the last 50 years.
The conflict revolves around two fundamental issues: What is the proper level of state funding for schools? And who should ultimately determine the proper level of school funding?
The source of the conflict can be traced to 1966, when voters adopted a complete overhaul of the education article of the Kansas Constitution. New language pertaining to school finance was included in that revision and stated simply: “The legislature shall make suitable provision for finance of the educational interests of the state.”
Interpreting this suitably vague language has consumed state lawmakers and state courts ever since. Local school boards are granted constitutional status in the education article and have repeatedly petitioned state courts for more adequate funding under this language. The recent court order is the fifth round of litigation in this school finance conundrum.
State court judges, including the Kansas Supreme Court, have willingly entered into this fray as the arbiter between local school officials and state lawmakers on school finance. Courts have pushed lawmakers to boost the level of school funding, provide for equal funding per student across districts, shift funding from locally levied property taxes to state taxes — primarily income and sales taxes — and establish a “rational” basis for all school funding.
In the last two rounds of litigation, state courts have aggressively ruled that a specific level of funding was required to pass constitutional muster. Earlier this month, for example, the judges ruled that lawmakers were constitutionally obligated to fund no less than “base student aid per pupil of $4,492.” The judges’ order would restore cuts in school funding over recent years and require an additional state appropriation of $442 million. Gov. Sam Brownback has recommended no increase in student aid for next year and $14 per student in the year after.
Brownback, Republican legislative leaders and their conservative allies reacted to the court order immediately. They said the judges had overstepped their authority, that lawmakers — not judges — held the “power of the purse,” and that lawmakers should determine the proper level of school funding without judicial intervention. They also called for a constitutional amendment to keep the courts from interfering with school finance.
Their reaction was expected; court action on school finance strikes at the heart of the conservative GOP agenda led by Brownback. The ruling challenges Brownback’s assertion that he will “fully fund” schools. Even more fundamentally, the court rulings threaten Brownback’s beloved income tax cuts that have left state finances in disarray. The court even chided lawmakers for their “homespun” claim that an economic downturn, not a $2.5 billion tax cut over the next five years, was the cause of inadequate funding of schools.
So, let Brownback and his legislative allies craft constitutional language to fix the issue as they see it, and place their amendment before voters, as early as April. Their action would be another high risk, “all in” solution characteristic of Brownback in his first two years as governor. Success would further tighten the conservative Republican grip on state government; failure would have Brownback spending even more time over the next two years digging out of the deep financial hole he has created for the state.
Kansas voters can sort through the issues and resolve the constitutional conundrum of school finance. They can determine whether to give Brownback and legislators sole discretion over the funding of schools or whether they prefer to have a check on lawmakers through judicial review.
Let the voters decide.
H. Edward Flentje is a professor at Wichita State University.