In January 2013, a district court in Kansas ruled in Gannon v State of Kansas that the Kansas legislature was not meeting its constitutional obligation to properly fund K-12 education in the state. The ruling was a huge blow to Sam Brownback and his cronies, as it would require either huge state budget cuts elsewhere or (gasp) eliminating the tax cuts he so lovingly pushed through the legislature. And it wasn’t just the bottom line of the ruling that stung, but the way in which the ruling was handed down, as I noted last year.
As everyone anticipated, the ruling was appealed, and yesterday the Kansas Supreme Court handed down their ruling. Their press release sums it up like this:
The court declared certain school funding laws fail to provide equity in public education as required by the Kansas Constitution and returned the case to Shawnee County District Court to enforce the court’s holdings. The court further ordered the three-judge panel that presided over the trial of the case to reconsider whether school funding laws provide adequacy in public education – as also required by the constitution.
Conservatives, led by Brownback, have been shouting for months that this is a political matter for the legislature, not the courts, to decide and yesterday’s ruling takes this shouting head on. Indeed, the bulk of the 110 page ruling is devoted to addressing this question, and they repeatedly and at length told Brownback and his minions in the legislature to pipe down and do their jobs.
In the syllabus of the opinion, they wrote:
7. Through Article 6, the education provision of the Kansas Constitution, the people expressly assigned duties to the Kansas Legislature that both empower and obligate. Under this article, the legislature must perform its duties in compliance with the requirements the people have established.
8. The Kansas Constitution clearly leaves to the legislature the myriad of choices available to perform its constitutional duties under Article 6. But the judiciary is the final authority to determine adherence to constitutional standards. The people’s constitutional standards must always prevail over the legislature’s statutory standards should the latter be lower. [pp. 2-3]
Such nice polite language. Within the opinion, however, the justices are a bit more pointed and direct:
We have long held that constitutions are the work of the people.
And the intent of the people of Kansas is unmistakable. They voted in 1966 to approve amendments to Article 6 of their 1859 constitution—which amendments included adding these particular provisions. And the people knew full well how to make the legislature’s constitutionally assigned tasks simply discretionary, i.e., “the legislature may.” Instead, in the very same article—Sections 1 and 6(b)—they chose to approve the amendment drafters’ mandatory language, i.e., “[t]he legislature shall.” Simply put, the Kansas constitutional command envisions something more than funding public schools by legislative fiat. [p. 43, citations omitted and emphasis added]
That would leave a mark on its own, but that’s just the starting point. They go on . . .
[I]n the special legislative session of 1966, an effort arose in the Kansas House of Representatives to change the proposed amendment to Article 6 by deleting “suitable” so the amendment simply would read: “The legislature shall make provision for the finance of schools and other educational interests.” But this attempt failed on a floor vote of 41 to 60 with 24 absent or not voting.
The 1966 legislature’s insistence on keeping “suitable” to specifically modify “provision” communicates a clear intention to not give itself absolute discretion in the finance of schools.
This qualifier, together with the constitution’s “shall make . . . provision,” even further reflects a judicial role in these disputes arising under Article 6.
Moreover, later in 1966 this same constitutional language was obviously approved by the people of Kansas in a statewide election. [p. 45, citations omitted]
The 1966 constitutional change—from the legislature’s over 100-year-old assignment under Section 2 to merely “encourage” the promotion of educational improvement to actually “provide for” improvement—is significant. More specifically, it again demonstrates the drafters’ intention to not give the legislature carte blanche or absolute discretion in performing its constitutional assignment. [p. 46]
Obviously the 1966 amendment’s legislative drafters, at least two-thirds of both of the legislature’s chambers which are required for a constitutional amendment, and the people of Kansas wanted more from the legislature. Otherwise these word changes—requiring “suitable provision” for finance instead of simple “provision” and “provid[ing] for” improvement instead of merely “encourag[ing]” it—were meaningless. [p. 47]
In sum, in Article 6 of their constitution the people of Kansas have directed their legislature to perform its duties that the people have created—in compliance with requirements the people have established. [p. 50, emphasis added]
Once upon a time, say the KS Supremes, there was a Kansas legislature that didn’t trust themselves or future Kansas legislatures with “absolute discretion” in deciding what will and won’t stand up to constitutional scrutiny. Today, say the KS Supremes, we see the wisdom of their work, because the recent iterations of that body have failed — repeatedly and intentionally — to meet the constitutional standard the people have assigned them to meet.
Having disposed of the “you can’t talk about this, ’cause you’re just judges” nonsense put forward by the state, the court went on to rule on the merits. Again from the syllabus:
9. Article 6 of the Kansas Constitution contains at least two components: adequacy and equity.
10. To determine compliance with the adequacy requirement in Article 6 of the Kansas Constitution, Kansas courts apply the test from Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989), which establishes minimal standards for providing adequate education. More specifically, the adequacy requirement is met when the public education financing system provided by the legislature for grades K-12—through structure and implementation—is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose and presently codified in K.S.A. 2013 Supp. 72-1127.
11. Under the facts of this case, the district court panel did not apply the correct test to determine whether the State met its duty to provide adequacy in K-12 public education as required under Article 6 of the Kansas Constitution. Therefore partial reversal and remand is required for the panel to make an adequacy determination, complete with findings, after applying the correct test to the facts.
12. Regardless of the source or amount of funding, total spending is not the touchstone for adequacy in education required by Article 6 of the Kansas Constitution.
13. To determine compliance with the equity requirement in Article 6 of the Kansas Constitution, Kansas courts do not require adherence to precise equality standards. Instead, school districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort.
14. Under the facts of this case, the district court panel correctly held the State established unconstitutional, wealth-based disparities by withholding all capital outlay state aid payments to which certain school districts were otherwise entitled under K.S.A. 2012 Supp. 72-8814(c).
15. Under the facts of this case, the district court panel correctly held the State established unconstitutional, wealth-based disparities by prorating and reducing supplemental general state aid payments to which certain school districts were otherwise entitled under K.S.A. 2012 Supp. 72-6434 for their local option budgets. [pp. 3-4]
It’s at this point that the court’s opinion caught folks on both sides — and the media trying to cover the case — off guard. The court did not simply order the state to increase its spending, but sent the case back to the lower court with additional guidance for consideration of not only equity (which it held to be lacking) but also “adequacy” and then to rule on possible remedies to these wealth-based disparities. Even more interestingly, the court also provided guidance to the state legislature, laying down a July 1 deadline for them to act on their own before a solution is imposed on them.
Brownback et al. are trying to put on a good face. They feared that if they lost, the court would simply accept the number dictated by the lower court and demand that the state pay it. Instead, despite the fact that they lost the big argument — yes, Governor, some of your education funding decisions have been unconstitutional and the courts have concerns about the others that they’ll keep looking into — the conservatives are celebrating a three and a half month reprieve in how things should be changed to make it all constitutional.
Because that’s all this is: a reprieve.
I do not see any way in which the legislature will act by July 1 and meekly approve an increase in funding which would end the litigation. Instead, I predict they will do nothing but shout, there will be more briefs and arguments at the lower court level [the order remanding the case does not order the panel to re-hear the case (though they may reopen the evidentiary record) but to apply a different test when making their analysis of constitutionality and remedies], and whatever that panel decides will undoubtedly be appealed once more to the Kansas Supreme Court.
Given how the Kansas Supreme Court smacked the legislature and governor around in this ruling, I wouldn’t expect them to be any more lenient with a recalcitrant legislature and governor down the road.
photo h/t to bloomsberries and used under Creative Commons Attribution-NoDerivs 2.0 Generic license.