The state Supreme Court didn’t explicitly threaten to close Kansas schools in its latest opinion that found public school financing unconstitutional, but the threat is implied. The court made that exact threat in a June 2016 decision, and justices said they will seek a remedy if lawmakers are unable to build and adopt a new financing formula no later than April 30 in their most recent ruling.
The opinion, released Oct. 2, is the fifth opinion issued by the Court in the ongoing Gannon case, a lawsuit that pits a handful of Kansas school districts seeking additional school funding against the Kansas Legislature.
“With that regrettable history in mind, while we stay the issuance of today’s mandate through June 30, 2018, after that date we will not allow ourselves to be placed in the position of being complicit actors in the continuing deprivation of a constitutionally adequate and equitable education owed to hundreds of thousands of Kansas school children,” the unanimous opinion reads.
Former House Speaker Mike O’Neal, an attorney by trade, says the opinion marks a redline in the sand.
“It remains to be seen what it is they think they can do,” O’Neal says. “They can’t force the Legislature to appropriate funds. What they can do is try to appropriate push the nuclear option of prohibiting schools from opening in the fall, which of course, would violate the rights of all students.”
Equity
The Court threatened to close schools last year over concerns that school funding wasn’t equitable. In a special session in June 2016, lawmakers tweaked parts of the block grant funding to satisfy the Court, and the plaintiffs in the lawsuit signed off saying they considered the equity part of the Gannon lawsuit resolved. Legislators tweaked parts of the funding formula dealing with equity during the 2017 session.
“We had an agreement, but a few small things changed,” current House Speaker Ron Ryckman says. “It wasn’t anything major.”
One change offered school districts flexibility in how they spend capital outlay funds. School boards were limited in how they could spend that locally raised funding. It could be used solely for capital projects, but the formula the Court recently rejected expanded the ways it could be used.
“We said if they want to use it for band uniforms or bus oils changes, (school boards) can do it,” Ryckman says.
The Courts said that was inequitable, however.
“While this overall increased flexibility can hold many advantages for local school boards when making spending decisions, it also can cause concerns if it creates or increases wealth-based disparities,” the Court’s opinion reads.
The Court also put local option budget, or LOB, funding in the crosshairs. School boards can increase property taxes up to a certain percent to be used for their own schools through the LOB. Currently, 44 districts have maxed out their LOB authority, collecting from local taxpayers through property taxes an additional 33 percent of their state financial aid.
The Legislature temporarily suspended the need to get voter approval to go beyond a certain LOB limit under the block grant funding, but reinstated that requirement under the new formula. Now the Court says that creates disparity.
“They took away the right for people to vote,” Ryckman said of the Court’s decision. “I don’t know how you take the word ‘suitable’ and take away the right to vote.”
O’Neal says taking aim at the LOB and capital outlay spending targets Johnson County, and any school finance formula that is likely to be adopted by the Kansas Legislature will require votes from at least some members of the Johnson County delegation. Expansion of local funding opportunities is often a critical component to get Johnson County schools and their representatives in the Legislature on board.
“Even the most liberal-minded, let’s-support-our-schools folks are going to be hard pressed to come up with enough funds that everyone can agree to. The only way you can get a school finance plan passed is with Johnson County votes,” O’Neal says.
The 88-page opinion is divided into two sections. One section addresses equity, which appears to put Johnson County and wealthier school districts in the cross hairs. The second part of the opinion addresses adequacy, or the amount of money schools receive.
Lawmakers passed a $1.2 billion tax increase last year in conjunction with funneling approximately $300 million more to school districts, but that might not be enough. Still, Senate leadership is on record in a joint statement saying increasing taxes again to fund the Court’s “unrealistic demand is not going to happen.”
Some lawmakers theorize addressing adequacy to the Court’s liking might require between $500 million and $1 billion more in school funding. That would require an across-the-board cut of 20 percent to all other state agencies or a tax increase 150 percent more than the 2017 increase.
The Perfect Storm
“It’s a perfect storm,” according to O’Neal.
Those gathering clouds may signal a Constitutional showdown. What happens if lawmakers reach April 30 or June 30 and are unable to reach an agreement? The Court says it will seek a remedy if that happens.
Justices can’t order the appropriation of funds, and they can’t send out the National Guard to bar school doors. They could attempt to order the Kansas Treasurer not to write checks to schools, O’Neal says. However, there’s a state law that prevents the Court from enjoining state funds.
“We anticipated the nuclear option and put it in statute that they can’t do it,” O’Neal says. “If they do it, they’re doing it contrary to a law that has been on the books since ’05.”
That law has never been tested in Court, but if it were to be, the initial decisions wouldn’t come from the Kansas Supreme Court. The case would start in lower courts.
Kansas State Treasurer Jake LaTurner’s office wouldn’t say whether LaTurner would cut checks or heed an order from the Kansas Supreme Court not to.
“The Treasurer doesn’t want to deal in hypotheticals. However, he hopes Kansas’ students will continue to receive a world class education no matter the circumstances,” Braden Dreiling, Director of Public Relations for the Kansas State Treasurer’s Office, said.
