Politics & Policy

We’Re All in Kansas Now, Toto

Everyone into the cellar: Judicial activism's twister touches down in Topeka.

You’d think that if a runaway judiciary could be stopped anywhere, it would be in Kansas, where common sense and rock-hard pragmatic populism are export crops. After all, this is a state where social conservatism has been largely triumphant for the last 15 years and where voters are so ardently scarlet that Democrats often have to cross-dress as Republicans or face defeat. Outside a few urban and academic precincts, no Kansas politician can win an election running as a liberal. The Democratic governor, the eerily icy Kathleen Sebelius, won her race by simply doing a better job running as a Republican than her Republican opponent did.

But, in the end, Kansans were as unsuccessful restraining the judiciary as everyone else, and as a result, the state’s taxpayers will be made to do what citizens in 45 of the 50 states in the nation have already been asked to do: pay a tax imposed on them by a judge seeking to fund state education in a way he or she finds agreeable, usually as a consequence of a ruling in an “equity” lawsuit. There are dozens of these lawsuits going on at any given time, often involving hundreds of millions of dollars. For lawyers, education is the new tobacco, and business is smoking.

What’s the Matter with Education in Kansas?

As a rule equity lawsuits involve relatively small cohorts of plaintiffs with specific gripes–in Kansas, for example, a small group of parents and the school administrators in a couple of mid-sized school districts complained that small, rural districts got more per pupil than they did, while big schools in affluent neighborhoods were able to augment state funds with local levies. In the case, Montoy v. Kansas, they said they wanted more money for some of their Spanish-speaking, disadvantaged, and other “at-risk” students. The basis for the complaint: A passage in the constitution that required the taxpayers to give every kid in Kansas a “suitable” education.

Of course, that’s probably what most Kansas citizens thought they were doing already. Despite a slowly shrinking population, not much is the matter with education in Kansas. The last session of the legislature saw a $142 million increase in educational spending. The state spends more than its neighbors on schools–two-thirds of the state budget, in fact–and already distributes that money more equitably than most other states do. Every year, nearly ten grand is spent on every student in the state. Kansas pays its teachers well, more than most other workers in this low cost-of-living state, and produces graduates whose performance is in the top ten nationally.

Yet despite the fact that, as the Wall Street Journal noted recently “the link between school spending and educational achievement is close to nonexistent,” in Montoy, the court found that the word “suitable” translates in money-talk to exactly $143 million. Next year, that figure will begin to swell, potentially reaching more than $850 million and, according to one study, costing more than 20,000 jobs and a $1 billion loss in productivity.

The court found that $850 million figure by accepting as evidence a discredited 2001 study by Augenblick & Myers, one of a handful of education experts who are retained by states to help them think about how much should be spent on reading, writing, arithmetic and condom-use for middle-schoolers. Consultants like A&M are notorious for their methodology–findings are often heavily influenced by simply going to school administrators and asking, “How much money do you need”–roughly akin to asking a meth-head, “How much crack do you need?” The huge sums these experts recommend are laughed off by the legislators who ask for them: The total increase recommended for Kansas, for example, was nearly a billion dollars. The legislature didn’t even bother saying, “Forget it!” before tossing it aside.

But studies like the one commissioned for Kansas are seized on by lawyers who follow in their wake and arrive in court armed with bales of data harvested from George W. Bush’s massive, ill-conceived joint venture with Ted Kennedy: The hideous “No Child Left Behind” education plan, with its stacks of test scores, charts, graphs, and other fodder for brief filers.

Taxing Bench

The judge in the Montoy case was Terry Bullock, a colorful judicial character, who drew on decisions by other activist judges in crafting his own and who used the A&M study as evidence because there was none otherwise. In his decision, Bullock admitted that “ordinarily it is not the Court’s role to direct the Legislature on how to levy taxes or on how to spend the funds it does collect, this case is the exception…[the legislature] has no choice when it comes to funding education. Under the Constitution, it simply must do it and do it adequately.” He ordered the legislature to allocate the additional $143 million or he would close the state’s schools.

But of course the real nature of Bullock’s interest wasn’t education. It was taxation: “As a result of the significant tax cuts passed by the Kansas legislature during the past ten years, the state has forfeited nearly $7 billion in funds which it would have otherwise had in the treasury. The depletion for 2005 alone is $918 million!”

Forfeited? Depletion? Exclamation point? Funding schools is one thing. Writing tax policy is another. Neither of them is typically a judge’s job. By making it his, Bullock worries more than just concerned Kansans. As Washington attorney Megan Brown, commenting on Montoy, noted, “If more states follow this path…reducing deference to legislatures in administering school systems, the jurisprudential and practical effect may be to substantially erode the functional and structural separation of power between branches of state government….”

Understandably, the legislature failed to take Bullock’s odd decision seriously until the state’s supreme court–all appointed by a succession of “moderate” governors–upheld Montoy and told the legislators to spend the money or the schools indeed would be closed. Legislators from both parties–along with a majority of Kansans–agree with the common-sense observation that the court overstepped itself. Some legal experts, including the state’s attorney general, Phill Kline, think the same thing: Richard Nadler explains the legal background here.

European Topeka

The governor called a special session of the legislature to respond to the court’s demand. As patient gambling lobbyists loitered in the hallways and corridors outside her statehouse office, she told reporters she felt gambling was the best way to fund state education. Sebelius had received contributions from gambling interests during her run for the governor’s office and had already approached House Speaker Doug Mays to make a deal to get a gaming provision passed. “This special session is about gaming,” Mays told his GOP caucus.

But many conservatives, led by veteran lawmaker Mike O’Neal, arrived with a different plan in mind. They argued that the function of the special session should be to amend the constitution to keep courts in check. Freshman Lance Kinzer tried to introduce an amendment prohibiting loopy judicial power grabs like Bullock’s and cited a 1962 decision by the court in which the court sensibly admitted it lacked the power of the purse. The amendment would have had to pass voter scrutiny later this summer. Although it was minor–a couple of sentences–and, in the words of the governor, “wouldn’t really change the…constitution,” Democrats and breakaway Republicans blocked it. When conservatives tried for another constitutional amendment, this one designed simply to tell courts they can’t close schools as a means of enforcing a decision, the Democrats and their Republican allies blocked that, too.

Those efforts failed because while many Kansans may be conservatives, the ascendancy of red-state values hasn’t yet washed across Topeka. There, a three-party system is solidly in place: a mostly genial, well-run, and stable Democratic party; an enthusiastic, growing conservative Republican faction; and a dwindling, liberal GOP wing including legislators like Ward Loyd, a representative from the rural southwest, who told me that despite the fact that he often votes with the Democrats, he couldn’t run as one. “If I ran as a Democrat, I would lose,” he said simply. Other liberal Republicans told me the same thing, but asked to not be identified. As one of them explained, his conversion to Republicanism was a practical, not an ideological, matter: “I decided I wanted to win.” Once in Topeka, the faux-Republicans can comfortably revert to form. Few local weekly papers cover the voting records of legislators so most of their constituents have no idea how liberal their representatives often are.

The Senate, nominally controlled by its vast Republican majority, is in the hands of moderates like Senate President Steve Morris, who is much more comfortable working with Sebelius and other legislative allies, like Loyd, and finds it difficult to work with conservatives whom he calls “a pain in the ass.” At times, like during these debates, he avoids contact altogether with the Speaker of the House because, according to Morris, his “ideology is a problem.” He said that he prefers to work with the governor and Democrats to produce Senate legislation, which is sometimes shaped to undermine the House conservatives, while infuriating the growing number of Senate conservatives.

In the Kansas house, Mays, who aspires to the governor’s job, tries to govern a Byzantine caucus, which, during the special session at least, was often filled with intrigue and suspicion. He is very reluctant to discipline his wayward members, since if he threw them out of the Republican caucus, the Democrats might be able to take control of the House. Mays knows he needs about ten more conservatives in the House before he can play bad cop.

Still, Mays is often effusive in praise of his Democratic opposite, Dennis McKinney, a quiet, intelligent farmer who is so reasonable he’s routinely reelected in a district that is only 25 percent Democratic. The two men attend the same church in Topeka, where they sometimes share a pew. According to McKinney, “Between a third and a half of the Democratic caucus is pro-life” and many describe themselves as social conservatives. “The national [Democratic] party doesn’t make it easy for us here,” he said.

In the middle are the “moderate” Republicans, nearly two dozen of them, shifting the power from one side of the house to the other. These shifting alliances drastically limit conservative power and often produce Democratic victories, like this failure to slap down judicial over-reach. As longtime local TV newsman Mike Mahoney wisecracked during the house debate, “I tell people I know what it’s like to cover European politics. I’ve been to the Kansas legislature.”

This same Republican cannibalism extends far from Topeka and explains how the state came by its liberal courts. “It’s impossible for a conservative to win the governorship in Kansas,” Rep. Kathe Decker told me. “Democrats will vote for their candidate and moderate Republicans will stay home.” Nobody I met in Topeka could tell me the name of the last conservative governor of Kansas–although one suggested the late Joan Finney, a conservative Democrat and a charismatic populist who was governor from 1991-95.

The new Republican-party chairman, Tim Shallenberger, who was soundly defeated by Sebelius in a 2002 gubernatorial election (“that moustache of his looked like Hitler’s!” one frustrated state senator said), thought with his help the GOP could change. He pointed out that until recently the state party “actively campaigned against conservatives” and cited the example of one top Republican who left the party to work for a group opposing the Kansas Marriage Act, which passed only after overcoming stiff moderate Republican opposition.

In the end, the special session ended in defeat for Mays and the conservatives. Isolated by the governor, the state senate, the House democrats and liberal Republicans and the judiciary, after 12 days, they were finally done. “I’m amazed we held out this long,” Mays said. The legislature ended up voting to spend an additional $148.4 million but lawmakers are worried that the court might still close the schools when the judges meet today, since the funding isn’t in precisely the form the court ordered.

One way or another, the issue will be back again when the legislature meets for a regular session in January. They’ll again be asked to pony up more hundreds of millions of dollars, effectively reversing any tax cuts and creating a financial abyss where today a slight surplus exists. The gambling lobbyists hope that if enough debt is generated by the courts and the legislature, their moment might yet come. On my way out of the statehouse, I found myself on an elevator with three cheerful Democrats–two representatives and a staffer. “Come back next year,” one of them told me. “We’ll be passing gaming!”

Denis Boyles is author of Vile France: Fear, Duplicity, Cowardice and Cheese. He is presently working on a book about midwestern politics

Denis BoylesDennis Boyles is a writer, editor, former university lecturer, and the author/editor of several books of poetry, travel, history, criticism, and practical advice, including Superior, Nebraska (2008), Design Poetics (1975), ...


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