The Kansas Supreme Court cannot be accused of ducking tough issues.
Last week the Court ruled that the Bill of Rights in the Kansas Constitution protects Kansans’ “right of personal autonomy,” including a woman’s right to terminate a pregnancy. Then, on Monday, the Court hears the latest round of litigation on school funding, the most fundamental obligation of state government.
Debate on the Court’s engagement in the abortion issue will continue for some time. On school finance, however, the Court should sign off on school funding approved by a bipartisan legislative coalition and Governor Laura Kelly and stand down on future litigation.
The history of school finance litigation stretches back over 50 years and stems from a complete rewrite of the Education Article of the Kansas Constitution proposed by state lawmakers and adopted by voters in 1966. This revision says simply “the legislature shall make suitable provision for finance of the educational interests of the state.”
Since 1966, lawmakers, state courts, and school districts have engaged in six cycles of litigation over what exactly “suitable provision” means. In the current cycle, which began in 2010, lawmakers are making their seventh trip to the Court to settle the lawsuit. In other words, in six prior attempts—once in 2014, twice in 2016, twice in 2017, and once in 2018—lawmakers fell short in meeting the Court’s view of suitable funding.
In the most recent cycle, the first three trips to the Court, led by former Governor Brownback and his far-right legislative allies, were not credible. They chose to ignore established funding guidelines, threaten the Court, campaign to oust Court justices, and enact multi-billion dollar cuts in state income taxes. Kansas voters rejected these tactics in the elections of 2016.
Beginning in 2017 a bipartisan coalition of state lawmakers has taken the Court’s orders seriously and crafted credible steps toward settling the litigation.
Why is school finance so hard? Imagine, if you will, allocating $5 billion among 300 school districts in ways that are adequate in meeting educational goals and equitable across widely diverse rural, urban, and suburban schools.
Even so, after nearly ten years of lawsuit drama, Kansans should expect these cycles of litigation to end.
The Kansas Supreme Court has the power to establish a higher bar for itself and lower state courts in considering future complaints on the suitability provision of the Kansas Constitution. Through prior rulings, the Court has established standards for adequacy and equity in school funding; it could order that only a substantial departure from those standards by state lawmakers would qualify for judicial review. An expression of heightened restraint by the Court in applying those standards could usher in an era free of litigation over school finance.
A “substantial departure” could, of course, be in the eye of the beholder, as “suitable” has been, but the justices can certainly find the right words. Obviously, the dramatic cuts in base funding and block-grant chicanery during the Brownback era represented flagrant deviations from funding guidelines and deserved judicial attention.
Judicial restraint on challenges to school funding could send powerful messages to school districts and state lawmakers: First, that school districts should focus their attention on demonstrating how additional funding leads to improved student performance, particularly for students most in need. And second, that state legislators keep school funding in line with established standards for adequacy and equity and assure that school districts are held accountable for student performance.
As high drama on abortion politics resurfaces, the Court should clear the way for a litigious-free path on school finance.
H. Edward Flentje is professor emeritus at Wichita State University and served with former Kansas Governors Bennett and Hayden.
