Kansas Supreme Court Threatens School Shutdown in Light of Legislative Non-Compliance

The Kansas Supreme Court on Saturday threatened to freeze the state's education budget and shut down public schools, after legislators failed to comply with the court's order to double the amount of education funding it had budgeted for the 2005-2006 school year. The court's stern actions could have major reverberations in the CFE case in New York, and in other school-funding lawsuits around the country.

[read text of Kansas Supreme Court order]

In its June 3 ruling, the Kansas Supreme court gave the legislature one month, until July 1, to add an additional $143 million to the state's education budget. On June 22, Governor Kathleen Sebelius called a special session of the legislature to address the court's order and avert a constitutional crisis. By Saturday, the eleventh day of session, lawmakers had produced several school finance plans but all lacked enough support to pass. Legislators adjourned on Saturday and are set to reconvene on Wednesday. The Kansas Supreme Court will hold a hearing Friday morning to determine whether the legislature has responded to its order, giving lawmakers just two days to finally satisfy the court mandate.

As of Saturday, there were two major school-funding proposals on the table. In an effort to break the deadlock, the senate approved a school finance plan that was drafted by a bi-partisan coalition and supported by the governor. The plan would provide an additional $160 million to schools this year and $30 million in property tax relief for low-wealth districts.

Meanwhile, the house approved a $139 million plan that would deliver schools about 60 percent of the funds up front ($86 million), $33 million after the completion of a costing-out study later this year, and $20 million in additional funding for 2006-2007. The proposed phase-in of funds prompted critics to question whether the plan would satisfy the court's requirement to immediately provide an additional $143 million to schools. Further, the plan is contingent on the house and senate approving a proposed constitutional amendment that would prohibit the court from ordering the legislature to make specific appropriations. The amendment has been a persistent obstacle throughout the negotiations and has already failed once in the house.

The attempt by some Kansas legislators to prevent the court from checking the legislature's power is reminiscent of the situation in New York, in which the governor and some members of the legislature continue to mask their unwillingness to come up with a school-funding remedy in CFE by accusing the courts of judicial activism. Charges of judicial excess have not only been invalidated by the courts, but are a direct infringement of the doctrine of the separation of powers upon which our government rests. Critics in Kansas have berated the legislators for continuing to sidestep compliance by trying to enshrine into law a legislative monopoly over the power of appropriation.

"You can't create, with a constitution, three branches of government and then, with a constitutional amendment, saw one branch off," said Alan Rupe, the Wichita attorney who filed the lawsuit against the state of Kansas that led to the supreme court's ruling.

The Kansas case dates back to 1999 when the State was sued for failing to fulfill its constitutional duty to provide suitable funding for all schools. In January 2005, the Kansas Supreme Court ruled in favor of plaintiffs and ordered legislators to bring its funding system into constitutional compliance by April. In contrast to the situation in New York, where the State totally defaulted on a court-mandated deadline, the Kansas legislature enacted legislation to respond to the court's April deadline. Six weeks later, however, responding to a motion filed by the plaintiffs, the court held that the proposed legislation was inadequate. On June 3, the court ordered the legislature to provide an additional $143 million or face a potential shutdown of schools. In its ruling, the court completely rejected the State's separation of powers arguments that are similar to those that Governor Pataki has advanced in his appeal of the latest CFE order.

July 5 , 2005