In his state of the state address this January, Kansas Gov. Sam Brownback cautioned the state Supreme Court against forcing the legislature to cough up more money for K-12.
In October, the Kansas State Supreme Court heard Gannon v. Kansas, in which the plaintiff sued the state of Kansas charging the legislature’s school-funding plan violated the state constitution. Kansans still await the court’s ruling.
The case received national attention, with the New York Times billing it as a showdown between cold-hearted Kansas legislators who refused to adequately fund their schools and judges who should be looking out for the kids. That’s certainly one spin, but it’s not the whole story. What’s really at stake is whether the courts and the feds will succeed in wresting control over schools from duly-elected state legislators.
Monkeying with Words
The plaintiffs filed suit under the precedent of the 2005 Montoy v. Kansas decision. In Montoy, the judges found the legislature’s school-funding plan violated article six of Kansas’s constitution, which reads, “The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools … which may be organized and changed in such manner as may be provided by law.”
The court, ignoring the “provided by law” part, fastened on the word “improvement.” Using a 1999 dictionary to define “improve,” the judges ruled the constitution essentially requires Kansas to ensure its schools show increasing standardized test scores. Never mind that the judges looked up a different word than what appears in the constitution, and that “improvement” clearly means something more cultural and holistic than just the result of a bubble-test. The court seized final say in school funding from the legislature.
Leveraging that case, the Gannon plaintiffs declare, “the legislature has continuously evaded its duties by adopting new legislation,” which they do not believe satisfied the court’s standard. It’s a curious turn of phrase to accuse a legislature of evading its duties by adopting the school legislation it’s required by their constitution to provide.
Little Case on the Merits
The plaintiffs did not, however, base their case on decreasing school performance. It would have been a hard case to make—Kansas’s statewide SAT average puts it among the top 10 states in the country, and Kansas spends almost 14 percent more per pupil than the national average.
Instead, the bulk of their case is made by saying Kansas must fund its schools sufficiently to meet the burdens of the federal No Child Left Behind (NCLB) law. The thing is, at this point NCLB is a bad joke. NCLB mandated the fantasy goal that all schools must reach 100 percent proficiency by 2014. Congress never expected the law would survive long enough to see every school in America face harsh federal sanctions for not being perfect. Literally no amount of money spent is likely to meet this goal, and by extension the plaintiff’s standard.
Since the brief was filed, Kansas received a waiver from the Department of Education releasing it from NCLB-imposed mandates. On one hand, this makes a considerable part of the plaintiff’s case moot. On the other hand, the strings attached to the waiver make it only another example of federal intrusion into local schools. The waiver was granted only on the condition Kansas adopt the Obama administration’s particular policy preferences, such as the Common Core.
The feds now have the leverage to micromanage Kansas school policy, and earlier this year they threatened to revoke the waiver because Kansas convened a task force rather than conduct a pilot study on the teacher evaluation regime they were mandated to adopt.
If the court sides with the plaintiffs in Gannon, Kansans will find the courts control their schools’ purse strings, the feds control their policies, and their legislators, and by extension the citizens, have less and less say left in their schools.
Max Eden ([email protected]) is a research assistant in education policy at the American Enterprise Institute. Article reprinted from AEI’s blog with permission. This article was updated in January with information about Brownback’s state of the state. Image by John Jackson.