Supporters back Kansas constitutional change

By JOHN MILBURN

Associated Press

TOPEKA -- Supporters said Wednesday a proposed change in the Kansas Constitution regarding education is necessary to curb court rulings that infringe on the Legislature's authority to appropriate money.

The change would specify only the Legislature has the authority to make decisions regarding financing of education in Kansas. The measure, if approved by two-thirds of both legislative chambers, would go on the August 2014 primary ballot.

Legislators are considering the change in response to a recent Shawnee County District Court ruling ordering the state to increase school spending by at least $440 million. The state has asked the Kansas Supreme Court to stay the Jan. 11 ruling and is seeking mediation with the plaintiffs' attorneys to discuss a settlement.

Supporters told the Senate Judiciary Committee the judicial branch has the authority to decide whether legislative policies are constitutional. But they said the courts overstep their boundaries when they require increased state spending on education.

Senate Education Committee Chairman Steve Abrams said legislators and the governor have the authority to set education policy and funding levels. While the American tradition of judicial review has been an accepted practice since 1803, courts cannot set policy but rather decide if a law is constitutional.

"The people of this state must have the authority to remind the judiciary that their power is also limited and that the Kansas Constitution gives authority for appropriation and policy development to the Legislature and the Legislature alone," said Abrams, an Arkansas City Republican and former chairman of the State Board of Education.

Abrams said at some point, the branches of government must take a stand to protect their authority.

John Robb, a Newton attorney representing parents and school districts in a lawsuit against the state, said the amendment was a "legislative power play" to change the constitution before the current case is heard by the Kansas Supreme Court.

"It would be like (Kansas basketball coach) Bill Self calling the NCAA for a rule change at halftime of a losing game," Robb said.

Dan Thatcher, a research analyst with the National Council of State Legislators, said 45 states have faced school funding lawsuits since 1970, with only Utah, Nevada, Hawaii, Delaware and Mississippi not going to court. He said the rulings have moved from a question of equal funding to whether state funding is adequate to meet the stated goals. However, Thatcher said he could recall no court that has been as specific in setting dollar amounts in their rulings as Kansas.

"We have a lot of experience to draw from," Thatcher said.

Legislators discussed similar amendments following a 2005 Kansas Supreme Court ruling that ordered increases in school spending. Legislators responded by increasing funding by nearly $1 billion but were forced to back off those levels during the Great Recession, prompting the current lawsuit and lower-court ruling.

Thatcher said other states have tried to amend their constitutions regarding education in recent years, noting Alabama voters rejected a measure to remove mention of education as a fundamental right in 2012.

Opponents to the proposed Kansas amendment will testify today. Mark Tallman, lobbyist for the Kansas Association of School Boards, previewed his organization's position after the committee hearing saying the determining factor for what makes an education suitable for students shouldn't be a moving target in the Legislature.

"We support a constitutional right to an education that should be a higher standard than just a legislative majority," Tallman said.

Other opponents have said if such an amendment passes, arents, students and school districts will have no legal recourse for changing legislative funding levels to ensure their rights to an adequate education are met.

But Abrams said that wouldn't be true because legislators stand for election every two years in the Kansas House and four years in the Kansas Senate. If residents disagree with legislative spending priorities, voters can hold them accountable at the ballot box, he said.

"They all report back to those who elected them and stand on their record," Abrams said.