After School Funding Ruling, Kansas Conservatives Renew Push to Limit Supreme Court's Reach

by | June 27, 2018

By Jonathan Shorman

Calls for a state constitutional amendment to restrain the Kansas Supreme Court are growing louder after the justices ruled again that lawmakers are not adequately funding schools.

Conservative Republicans called Monday's decision an example of judicial overreach and moved to make the court's power a campaign issue.

A proposed constitutional amendment embraced by some lawmakers would block the court from reviewing overall spending on schools. Amendment supporters must sway voters to elect pro-amendment candidates if they want a realistic chance of passing a change through the Legislature. In their view, the latest ruling provides significant evidence that the court has overstepped its bounds.

"It is vitally important that the people of Kansas direct how their tax dollars are prioritized for our students and it appears that a Constitutional Amendment is the only way to give control back to the people," House Speaker Ron Ryckman, R-Olathe, said in a statement.

Kansas Secretary of State Kris Kobach, who is running for governor, said the court was acting far beyond its judicial role. He called for an amendment that would make clear the judiciary may not determine spending amounts for education. Gov. Jeff Colyer said he supports a statewide vote on an amendment.

The Legislature has responded to several court opinions since Schools for Fair Funding -- representing several districts, including Wichita -- sued over funding in 2010. In the latest round, lawmakers approved $522 million in new annual spending, ramped up over five years.

The Supreme Court said Monday that the plan doesn't sufficiently account for inflation. Attorneys for the districts estimate $97 million more a year may be needed, while state attorneys put the amount at $50 million to $60 million a year.

The justices gave lawmakers until April to say how they plan to address the issue, with another opinion due in about a year. In the meantime, they allowed the funding plan to move forward.

The decision stopped well short of some actions the court could have taken.

The court didn't stop the flow of funds to districts, a move that would have effectively closed schools. It also did not set a short deadline for action that would have required a special legislative session during campaign season.

And complying with the court decision will not require the massive increases of $1 billion or more that some had predicted.

"Part of the logic of a constitutional amendment is the court shouldn't tell us what to do. It seems to me this ruling was very deferential to the Legislature," said Mark Tallman, a lobbyist for the Kansas Association of School Boards.

Talk of a constitutional amendment has come and gone in the past, but grew more serious during this year's legislative session.

The Kansas Chamber of Commerce, Kansas Farm Bureau, Kansas Contractors Association and other groups formed the Coalition for Fair Funding to lobby for an amendment. The coalition's proposal would give the Legislature sole authority to set total spending amounts on education.

A House committee passed the amendment, but the full House never debated it.

John Donley, a lobbyist for the coalition, said the group wants lawmakers to consider an amendment when they meet again next year.

"The court is still inserting itself into funding decisions at some level and we think the constitutional amendment discussion needs to be part of the dialogue," Donley said.

Approving an amendment would be a difficult task. Supporters would need two-thirds support in both the House and Senate to send the proposal to a statewide vote, where it would need to pass with a simple majority. The governor doesn't have the ability to approve or veto an amendment.

Whether a constitutional amendment advances or fails may depend on the outcome of House races this fall. Representatives are up for election this year, but not senators.

House Majority Leader Don Hineman, R-Dighton, said he expects an amendment to be an issue in some races.

"It could cut both ways. In some districts there will be a push to change the constitution. In others, there may be more of an appetite to stay away from that," Hineman said.

The Coalition for Fair Funding doesn't plan to make endorsements or intervene in races, Donley said. But he said that some of the members of the coalition have their own election efforts.

Notably, the Kansas Chamber of Commerce sometimes plays a big role in races and its legislative agenda includes supporting a constitutional amendment.

Sen. Oletha Faust-Goudeau, D-Wichita, indicated that if lawmakers pursue an amendment next year, the battle will be even more intense and lead to a standstill. She said she believes an amendment wouldn't pass.

"If you get new legislators, I don't think they're going to go in and vote for that," Faust-Goudeau said.

House Minority Leader Jim Ward, D-Wichita, said no Democrat would ever vote to take away the court's power to review legislation for its constitutionality.

"It's just not going to happen," he tweeted.

No Democrat will vote to take away a child's right to a suitable educational opportunity. Nor will we vote to change separation of powers and take away court's legitimate power to review legislative enactments for constitutionality. It's just not going to happen. @RepJimWard

-- Jim Ward (@RepJimWard) June 26, 2018

Republicans could use the prospect of support for a constitutional amendment to rally conservative voters to the polls.

Republicans have tried to excite conservatives in the past two election cycles by urging them to vote against retaining Supreme Court justices. None of the justices are on the ballot this time, however.

"You're going to have, I'm sure, conservatives running for office on a platform of 'I want this constitutional amendment to come back up in 2019,' " said Michael Smith, a political scientist at Emporia State University.

Smith warned there are risks to using an anti-court message in the general election, however. Voters have previously signaled their support for the justices by rejecting efforts to oust them.

"If you keep doing it over and over, it could be that you're really persistent and third time's the charm," Smith said. "But it could also be that you don't look too good trying again and again and failing each time."

(c)2018 The Wichita Eagle (Wichita, Kan.)