When the Kansas Supreme Court ruled last October that the level of state support for public schools was constitutionally insufficient, Justice Lee A. Johnson agreed with the unanimous decision, but thought it did not go far enough.

The court gave the legislature until April 30 of this year to come up with a plan to cure the unconstitutionality. Back in October, Johnson wanted the legislature to get to work immediately and meet a much earlier deadline. The 30-year history of Kansas school finance litigation was on his side.

In his dissent on the question of timing, Johnson wrote, “The (court) majority’s historical recitation belies the notion that we can expect anything other than a last-minute submission that will need revision, or at least refining, to pass constitutional muster … Kansas has failed an entire generation of children … And we need to do what we can to avoid failing Kansas children for yet another school year.”

Johnson’s singular riff was an extension of other stern language in the majority’s opinion, which said:

“With that regrettable history in mind … after (June 30, 2018) we will not allow ourselves to the placed in the position of being complicit actors in the continuing deprivation of … education owned to hundreds of thousands of Kansas school children.” The clear implication: come up with an adequate plan or the schools will not open for the 2018 session.

Combine the majority’s determined stand and Johnson’s low expectation of legislative diligence and one would think the legislature would rise to the occasion.

One would be wrong.

In the early hours of Sunday morning, it finally approved a $500 million increase in school funding, phased in over five years. It had spent barely a week cobbling together a plan just in time for Attorney General Derek Schmidt to craft the formal response to the court by April 30.

There is no guarantee that the court will find the $500 million — given inflation and other fiscal factors — to be constitutional under the standards of student performance the state agreed to adopt.

So then what?

Thus far in the extended litigations, the court has — properly — declined to suggest any numbers out of respect for the constitutional separation of powers that vests budget authority in the legislative branch.

But if the court decides $500 million is insufficient, that would at least establish a floor. And if the legislature considers $500 million not a floor but a ceiling, the state arrives at another constitutional crisis.

The legislature’s pledge to phase in $500 million over five years will not mean the end to the litigation; the court likely will maintain jurisdiction for at least that long. The reason: the court and Kansas students were burned a dozen years ago when, after seven years of legal struggle, the court dismissed Montoy v. Kansas in 2006 because the legislature largely complied with the court’s rulings. But pressures from the 2008 recession led the legislature to reduce school funding drastically, so the present case (Gannon v. Kansas) had to be filed in 2010 aimed at re-establishing a constitutional level of funding.

And one thing is certain. If the court rejects the $500 million/five year plan or maintains jurisdiction, we’ll endure another period of legislative and executive branch mutterings about amending the constitution to limit the court’s authority.

Altering the historic constitutional distribution of powers because of transient political disputes would be a dark, dangerous path to start down.


Davis Merritt, Wichita journalist and author, can be reached at dmerritt9@cox.net.