Bench Memos

Kansas Court Unilaterally Increases State Education Funding

A few weeks ago, a Kansas district court unilaterally ordered Kansas to increase education funding by at least $654 per pupil. Even though Kansas has increased total school funding every year during Governor Brownback’s term of office, the court found the state’s education funding was unconstitutionally low. The ruling will cost Kansas taxpayers an estimated $442 million per year; no spare change for a state already facing a $267 million dollar deficit. This case—judicial activism at its worst—illuminates the need for judicial selection reform in Kansas.

The decision originates from the Kansas Supreme Court’s suspect Montoy v. State line of cases, which interpreted the state constitutional requirement for “suitable provision for finance of the educational interests of the state” to require an additional $853 million in education funding for their K-12 system.

Partial blame for these cases certainly falls on the state constitution’s text, which leaves room for enterprising liberal jurists to inject policy views into a case. Even still, not only do these education-funding opinions violate separation of powers, co-opting the legislature’s power of the purse, but they also ignore the political-question doctrine, which directs the court to abstain from resolving certain controversial political debates.

The political-question doctrine generally applies when courts lack the expertise to promulgate “judicially discoverable or manageable standards.” Without such standards, courts must engage in the kind of individualized decision-making typically reserved for democratically elected representatives. This is the case when courts try to determine a proper level of education finding. As the Illinois Supreme Court argued, in a 1996 case that is strikingly similar to the Kansas funding cases:

What constitutes a “high quality” education, and how it may best be provided, cannot be ascertained by any judicially discoverable or manageable standards. The constitution provides no principled basis for a judicial definition of high quality. It would be a transparent conceit to suggest that whatever standards of quality courts might develop would actually be derived from the constitution in any meaningful sense… Rather, the question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion.

The Kansas education funding cases have not created judicially manageable standards where the Illinois Supreme Court fell short. Instead, they have seen courts jettisoning their role of strictly interpreting the law, in favor of playing economists and education policy experts. So for example, the Kansas court two weeks ago rejected the need to lower taxes during an economic downturn—despite the contrary conclusions of Kansas’s democratically elected representatives—because lower tax rates shouldn’t be counted on to stimulate future economic growth. But does this mean that the legislature cannot decide to cut other social programs instead?  How high does the court think taxes should go?

Beyond the decision’s constitutionally deficient reasoning, the opinion also rests on the faulty premise that educational funding levels are the drivers of educational quality. This premise does not appear to hold up. A State Budget Solutions study found that “state ACT and graduation data hardly correlates at all with education spending, indicating that a number of factors other than spending must impact student success.” Never mind that—apparently it’s enough that financing experts band together to mechanically calculate constitutional funding levels.

The case is on appeal, and the Kansas Supreme Court may eventually overturn this decision. Either way, this case demonstrates why judicial selection reform in Kansas is so essential—the decision is a natural byproduct of following a judicial-selection method that has been known to foster a left-leaning judiciary. As Senate Majority Leader Terry Bruce explained,“By usurping the power of the legislature to appropriate state funds, judges have bestowed upon themselves unprecedented power which is now leading to a constitutional crisis. . . . There is no better example of why the state of Kansas needs to reform its judicial-selection process.’”

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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