State legislators might have almost three months before the next session convenes in Topeka, but they would be served best by planning to redo the state budget for the fiscal year already underway. The $5.96 billion state general fund approved last session will not be enough to fund public K-12 education at a suitable level.
Lawmakers and Gov. Sam Brownback were told by a district court in January that such funding is unconstitutionally low. The deficit is at least $440 million -- annually. The conservative supermajority decided to ignore the ruling as it constructed a budget, and appealed to the Kansas Supreme Court in hopes of a different outcome.
It doesn't appear that will happen. This week, the state's highest court began hearing the lawsuit. While a ruling won't be released until January, it's not difficult to read the tea leaves.
"They took all the resources out of the system and then stand here and plead that they can't afford to increase funding to schools," said Alan Rupe, a Wichita attorney representing the students and school districts.
"Clearly, the promise you and others were espousing ... years ago has never been kept," said Justice Eric Rosen.
The reference, of course, is to the 2005 Supreme Court order to the Legislature to increase funding. Lawmakers complied, raising the base aid per pupil significantly to $4,492. Legislators didn't actually get to that amount, but agreed that was the amount necessary to provide the "suitable education" as well as the "intellectual, educational, vocational and scientific improvement" called for in the Constitution. Per-pupil aid peaked at $4,400 in 2009 and has trended down since. Last year, lawmakers approved $3,838.
In defending the state, State Solicitor General Stephen McAllister said: "The Legislature has to deal with the real world. The constitution shouldn't be a suicide pact."
We couldn't agree more. But since the state was founded in 1861, public education has been the state's primary focus. The Constitution was written to ensure Kansas children received quality education.
What was suicidal was the Legislature's decision in 2013 to reduce income tax rates so dramatically. The regressive policy shift certainly allows for wealthier Kansans and businesses to save money, but it also reduces the largest revenue source the state depends on. To cry poor-mouth to defend not paying for suitable education is disingenuous at best. Yet that is precisely the state's position.
It will be interesting to see what happens when the court orders legislators to make up the funding. House Speaker Ray Merrick, R-Stilwell, recently said he did not see the Legislature "going along with what the courts say." Expect to hear the phrase "judicial overreach" being bandied about.
Here's the problem. It was the Legislature that defined "suitable education." The Legislative Education Planning Committee set the criteria used by Augenblick & Myers, the consulting firm hired by the Legislature to determine what was the "suitable provision for finance." It was the Legislature that determined $4,492 was the appropriate BAPP. All the court did was agree that amount satisfied the constitutional mandate. Since then, it has been the Legislature that decided to decrease K-12 funding.
The Kansas Supreme Court will not be usurping legislative authority when it instructs lawmakers to fulfill their constitutional duty. The judges simply will be doing their job. Legislators should follow suit.
Editorial by Patrick Lowry