TOPEKA — Republicans and Democrats waded into controversy about the attorney general’s request to end the Kansas Supreme Court’s oversight of a case that led to orders requiring the Legislature fix constitutional violations in financing K-12 public schools.
After years of legal squabbling, Supreme Court justices took steps in 2019 to retain jurisdiction of the Gannon v. Kansas education funding case. The maneuver was designed to expedite the Supreme Court’s response if the Legislature balked at completing a remediation plan that included annual funding increases through 2023.
The Legislature approved and Gov. Laura Kelly signed a series of bills compliant with the Supreme Court’s interpretation of Article 6.
Attorney General Kris Kobach, a Republican, asked the Supreme Court last week to terminate its control over the case. He argued the Supreme Court should close out Gannon because the state met constitutional expectations for equitable funding outlined in the justices’ 2018 opinion and for adequate funding featured in a follow-up 2019 opinion.
“Because the 2022-2023 school year ended on June 30, 2023, and all planned funding has been phased in successfully … this court should now issue its mandate and release jurisdiction of this appeal,” Kobach’s motion said.
‘Makes no sense’
Brianna Johnson, spokeswoman for the governor, said Kelly opposed the attorney general’s attempt to “allow the Legislature to remove funding from our public schools.”
“Just as Kansas student test scores are on the rise, it makes no sense to undo all the progress Governor Kelly has made by fully funding our schools five years in a row and making it possible for students across the state to receive a quality education,” Johnson said.
Rep. John Carmichael, a Wichita Democrat and retired attorney, said there was substantial risk to the Supreme Court releasing its grip on Gannon. He said the Legislature had a record of eroding compliance with constitutional provisions on funding K-12 schools.
“The Kansas Supreme Court is well familar with the practice of the Legislature to comply with its orders only for the shortest time necessary,” Carmichael said. “If you look historically, that’s why we had the Gannon case filed. The Legislature, as soon as they were out from under supervision of the courts, immediately reduced school funding.”
Carmichael theorized Kobach’s objective was to enable the Republican-led Legislature to “significantly underfund” public schools in the future.
Supreme Court closure of the case could make it easier for the House and Senate to withdraw state aid from public schools and direct it in the form of vouchers to home and private schools, he said.
‘They’ve been fully funded’
Sen. Kellie Warren, a Leawood Republican and chair of the Senate Judiciary Committee, said she would need to study details of what it would mean for the state’s highest court to formally step back from Gannon. She said a point to be considered was the Legislature’s demonstrated commitment to fully funding K-12 public education in a manner respectful of Supreme Court opinions.
“They’ve been fully funded, according to the Supreme Court, so it seems to me like the issue has been resolved,” she said.
Warren said another piece to this puzzle was separation of powers among the judicial, legislative and executive branches of state government. The Legislature should be in control of appropriations to public schools, she said.
“That’s our duty under the constitution and that’s where it should remain,” said Warren, an attorney and 2020 candidate for state attorney general.
The legal dispute about school funding in Kansas hinged on a 1966 amendment of the Kansas Constitution. The amendment required the Legislature to provide “intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities.”
Under Section 6 of Article 6 of the constitution, the Legislature had the duty to deliver suitable funding for every public school student in Kansas.
Montoy passes to Gannon
In 1999, a legal challenge to constitutionality of Kansas’ school finance system was filed in Shawnee County District Court. The district court didn’t find constitutional violations in Montoy v. State and dismissed the case. An appeal to the Supreme Court produced a 2003 opinion that said the case shouldn’t have been summarily tossed. The Supreme Court said suitability of school finance wasn’t a fixed issue and had to be monitored.
The district court responded by declaring the Legislature neglected to met educational interests of students. The legislative and executive branches were given an opportunity to remedy constitutional flaws in state funding, but the district court decided lawmakers didn’t do enough.
In 2005, the Supreme Court in Montoy said the school finance formula inadequately provided aid to school districts in terms of minority, at-risk and special education students. The Legislature adopted a series of funding reforms, but the Supreme Court’s next opinion in Montoy said those increases didn’t make the grade. A special session of the Legislature doubled the budget increase to K-12 education. The Supreme Court accepted the Legislature’s revision, but retained supervision of the case.
The 2006 Legislature substantially changed the state’s school finance formula. The Supreme Court determined the Legislature was still in compliance with its previous K-12 funding orders and dismissed Montoy.
Reductions in state aid to schools during the national recession preceded filing of the Gannon lawsuit in 2010 by a coalition of school districts.
At trial in 2012, Gannon plaintiffs alleged the state had avoided equitable and sufficient funding to public education. A three-judge trial court agreed. On appeal, the Supreme Court said the funding mechanism met equity provisions of the constitution, but the lower court used the wrong standard to consider adequacy.
The district court panel answered by again concluding the state’s funding approach violated constitutional requirements for adequacy, a position upheld by the Supreme Court. The Gannon case moved back and forth from trial to appellate court, but the Supreme Court decided in 2019 the Legislature’s multi-year financing plan complied with the constitution. The justices, however, retained jurisdiction of Gannon.
