On June 3, the supreme court of Kansas issued a ruling in Montoy v. Kansas requiring the state legislature to appropriate an additional $853 million per year to Kansas elementary and high schools. The basis of that decision, said a unanimous court, was a clause in the Kansas constitution: “The legislature shall make suitable provision for finance of the educational interests of the state.”
In a special session of the legislature that concluded July 6, majority Republicans tried and failed to pass a constitutional amendment restricting the court’s role in school policy. Its crucial passage read:
“The executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money, or to redirect the expenditure of funds appropriated by law.”
Despite strong majorities in both chambers for the constitutional change, a bipartisan alliance blocked the attempt to limit the court to its constitutional functions. Thus, Kansas must now allocate a court-ordered $143 million supplement, the first installment on the $853 million it will have to pay this year to avoid shutting down its schools.
Using Trendy Litigation
The total court-ordered increase equals roughly 20 percent of the state’s entire general revenue budget. It comes at the end of a 15-year period during which Kansas’s per-pupil expenditures doubled, exceeding the rise in consumer prices by 29 percent.
In 1973, the U.S. Supreme Court refused, in San Antonio Independent School District v. Rodriguez, to force Texas school districts to “equalize” school spending, preventing future lawsuits seeking to force the federal government to equalize spending.
However, a steady stream of state courts has since sought to use state constitutions to force through school finance equalization decisions on the state level. From Connecticut to California, liberal courts have broken legislative budgets and spending caps in response to those suits.
Equalization has served as a pretext for tax increases in some states and for attacking local control of schools in others. “School finance litigation” has become a multibillion-dollar business, commanding its own corps of specialty lawyers and expert witnesses.
Increasingly Bold Rationales
The rationales state jurists present for assuming control of legislative functions have become increasingly bold. In Montoy v. Kansas, the state supreme court spilled as much ink justifying its jurisdiction as its remedies. The latter are predictable and formulaic: More money for public education; less local control for district patrons. But the former are bold and exciting. In justifying their takeover, the Kansas justices cited a growing body of literature from law journals and the rulings of other states, as well as their own precedents.
In its ruling, the Kansas court assumed a right to determine public policy on the basis of the presentations of litigants before the bar. Explicitly adopting the rationale of a Kentucky court, the Kansas justices quote it:
“[In this case] we are asked–based solely on the evidence in the record before us–if the present system of common schools in Kentucky is ‘efficient’ in the constitutional sense. … To avoid deciding the case because of ‘legislative discretion,’ ‘legislative function,’ etc., would be a denigration of our own constitutional duty. To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.”
In other words, the court held, the “record” presented in the course of litigation not only can, but must, replace the form of “fact finding” that goes on in a state legislature. To refrain from a decision based on the limitations of the knowledge base available through litigation is “unthinkable,” according to the court.
In fact, the judges said, the imperfection of the legislative process provides the rationale for judicial intervention: “Specifically, the district court found that the financing formula was not based upon actual costs to educate children, but was instead based on former spending levels and political compromise” (emphasis added).
The rules-based actions that legislative bodies apply to baseline budgets are thus structurally suspect, according to the court, and a process so arbitrary invites review. But once a case has been presented, how are the constitutional duties of the three branches of state government defined? Once again, the Kansas court cites its Kentucky peer:
“The judiciary has the ultimate power, and the duty to apply, interpret, define, and construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of the other branches, or even that of the public” (emphasis in original).
Claiming ‘Ultimate Power’
Note the court claims the “ultimate power” to “apply” the Kentucky Constitution. The relevant entries of Webster’s Collegiate Dictionary define “apply” as: a) “to bring into action, to put into operation or effect (as in a law)”; and b) “[to] put to use, especially for some practical purpose.”
These phrases describe the traditional functions of the legislative and executive branches in our state constitutions. Hence, what the Kansas Supreme Court has substantively claimed is an exclusive right to make law on any case brought before it.
States are particularly vulnerable to this brand of judicial tyranny. The Kansas justices cite a 1991 Harvard Law Review article to explain, “unlike federal courts, state courts need not be constrained by federalism issues of comity or state sovereignty when exercising remedial power over a state legislature, for state courts operate within the system of a single sovereign.”
That means the court can ignore the will of lesser sovereignties within the state, such as county governments, school districts, and the like.
For how long can the court claim this license? The Harvard Law Review article cited by the Kansas court says, “the Court too must accept its continuing constitutional responsibility for overview of compliance with the constitutional imperative.”
That means the public policy dicta of a state court need not be constrained by the messy squabbling of elected legislators, by facts neglected by the litigants-at-bar, by the constitutional duties of the court’s co-equal branches, by lesser political subdivisions, or by time itself.
In deciding Montoy, the Kansas court adopted the findings of a single study by a single committee of the legislature. Montoy‘s policy prescriptions–more funding for public schools, less local control–would have surprised the U.S. Supreme Court justices who rejected a similar “remedy” in 1973. For the majority, Justice Lewis Powell wrote,
“It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain, under the present system, a large measure of authority as to how available funds will be allocated.”
Of course, Powell was constrained by those pesky federalist principles.
Richard Nadler ([email protected]) is president of America’s Majority, a Midwest public policy institute. Another version of this article appeared in the June 28 edition of National Review Online.
For more information …
“Liberation Jurisprudence: How Activist Courts Have Torn Family and Society Asunder,” by Bruce Frohnen, published in the May-June 2001 issue of Family Policy, a publication of the Family Research Council, is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to http://www.heartland.org, click on the PolicyBot™ button, and search for document #8325.