Senate President Susan Wagle said too many of her legislative colleagues were intimidated by the Kansas Supreme Court to initiate a constitutional showdown with justices prompting dramatic increases in state appropriations to public schools.
Wagle, a Wichita Republican who consistently voted against K-12 funding bills linked to decisions by the Supreme Court, said even like-minded conservative colleagues were "afraid to take on the Supreme Court." If the Republican-led legislative branch took a separation-of-powers stand and the Supreme Court carried out a threat to shutter schools, the Senate president said, it would be a golden opportunity to pursue a federal lawsuit.
"Why couldn't we take this to the U.S. Supreme Court and say, 'What authority do they have to close our schools?' Maybe we should take on that confrontation," Wagle said.
Many Republicans share Wagle's frustration with the state Supreme Court on legal questions resulting in education spending hikes, but there is no consensus on triggering a constitutional crisis.
Democrats, who appreciate the recent surge in state spending on schools, have no interest in throwing the Supreme Court under a bus.
"None of us want a constitutional crisis," said House Speaker Ron Ryckman, R-Olathe. "No one wants to have that threat out there of schools being closed. That's not good for anybody, but we also know that making promises we can't keep isn't either."
Wagle, who has discussed the possibility of seeking the GOP nomination to replace U.S. Sen. Pat Roberts, used ominous terms while speaking last week to a group of Kansas business owners to justify a federal challenge of state Supreme Court authority.
"The other cloud hanging over the dark sky of Kansas is the Supreme Court that continually mandates from the bench how much money we should spend on K-12," she said. "The Legislature keeps complying with the court because they make the threat of closing the schools. But you shouldn't have unelected men in robes deciding how much money to spend."
In 2017, the Supreme Court declared state aid to K-12 schools to be unconstitutionally inadequate based on a lawsuit filed in 2010. The Legislature and then-Gov. Jeff Colyer in 2018 increased state aid by $500 million over five years. The court accepted the targeted investment to address academic inequities, but ruled an inflation adjustment was needed after per-pupil state spending on schools cratered under former Gov. Sam Brownback.
Democratic Gov. Laura Kelly, the Kansas State Board of Education and attorneys for the four plaintiff school districts in January urged the 2019 Legislature to add $92 million per year for inflation. Negotiations were proceeding in that direction when Schools for Fair Funding, representing plaintiff districts in Hutchinson, Dodge City, Wichita and Kansas City, Kan., abruptly raised its inflation demand to $275 million.
Kelly said she was unmoved by Schools for Fair Funding's change of heart.
"We put a school-finance program together based on the figures the state Board of Education and, at that point, Schools for Fair Funding agreed upon. We will be supporting that throughout the process," the governor said.
Manhattan Sen. Tom Hawk, a Democrat who served as superintendent, counselor and teacher in the Manhattan-Ogden school district, said the revised request by Schools for Fair Funding complicated resolution to the K-12 issue and development of a new state budget.
"Do I have a concern about the budget? Yes," Hawk said. "Do I have a concern about the difference in opinion about what the appropriate inflation amount is? Yes. I tend to side with the state Department of Education."
Ryckman, the top Republican in the House, said Schools for Fair Funding's ballooning demand damaged negotiations with school district administrators and others about an appropriate level of new funding guided by "what they really need — not wants." He said the Legislature should settle the K-12 issue so tax dollars could be used to improve transportation, mental health services and early-childhood development initiatives.
"We were getting really, really close" in negotiations, Ryckman said. "We're still working hard with that number, trying to find out what it is. We're trying to end the litigation."
Wagle said an option to involvement of the U.S. Supreme Court was to put before Kansas voters an amendment to the Kansas Constitution removing the state Supreme Court from consideration of state education appropriations to the 286 districts serving 490,000 students.
"It's very important to have that done. We have to get the Supreme Court out of the business of appropriating funds — permanently," the Senate president said.
Hawk said Kansas voters wouldn't take kindly to an amendment likely to be used by lawmakers to deflate state K-12 spending.
"No, that's why we have a constitution," he said. "We should not treat that lightly just because in the short run somebody is not getting their way."