By CELIA LLOPIS-JEPSEN
In the summer of 2005, the Legislature butted heads with the Kansas Supreme Court over a ruling that ordered an influx of money to public education.
The result? Kansas came closer than ever to a constitutional crisis.
With Kansas facing a similar Supreme Court deadline this spring, state lawmakers are talking about ways to challenge or restrict the court’s authority on the topic of K-12 funding. A special committee formed to address the latest court ruling will meet Monday and Tuesday at the Statehouse.
Key participants in the 2005 special session sat down with the Kansas News Service in recent weeks to share their memories of the 12 days in the House — and 11 in the Senate — when lawmakers debated defying the justices but ultimately backed down.
In the process, they missed a critical court deadline that raised the stakes of the session — and had people who doubted a school shutdown could ever happen rethinking their assessment.
‘Time is running out’
Kathleen Sebelius, governor at that time, recalled calling the special session that brought lawmakers back to Topeka in late June 2005.
That spring, the Legislature had attempted to resolve a school finance lawsuit — Montoy v. Kansas — by adding $142 million to the state’s education spending. Sebelius suspected that wasn’t enough. Though she didn’t veto the bill, she declined to sign it.
“I said that over and over during the session,” she said. “So we sent it quickly to the court without my signature.”
Sebelius believed the bill fell short of two requirements the state had to meet: putting enough money into schools to help student outcomes and distributing the money in a way that was fair to resource-poor school districts.
On June 3, 2005, the court agreed, ordering the Legislature to double that $142 million figure by the start of the new fiscal year on July 1 — an important date for school district budgets. The justices settled on that amount based on a school finance study the Legislature had commissioned four years earlier.
“Time is running out for the school districts to prepare their budgets,” the justices wrote in explaining the July 1 deadline. “The Legislature has known for some time that increased funding of the financing formula would be necessary.”
Sebelius wanted the Legislature to comply, and many moderate Republicans agreed.
“We thought we were putting an adequate amount of money in, but the court thought otherwise,” recalled former Senate president Steve Morris, of Hugoton. “So I thought, well we’ll just have to do what we have to do.”
Sebelius set a June 22 start date for the special session and Morris called a few of the Senate’s committees back early to craft legislation that would meet the court’s demands. When the full Senate returned, it passed the bill on its first day.
That’s not to say senators had no reservations about the situation. After passing the legislation, some Senate Republicans set to work pursuing possible constitutional amendments that would tie the court’s hands on school finance in the future.
Court out of bounds?
The House, meanwhile, was at a standstill. Complying with the court ruling was anathema to conservative leaders there who saw it as caving to a branch of government overstepping its authority.
“We were pretty shocked that this court would not only weigh into that issue,” said then-representative Mike O’Neal, referring to school finance, “but literally order the Legislature to appropriate a certain amount of funds.”
The Hutchinson Republican was the longtime chairman of the House judiciary committee and argued that separation of powers doctrine — and in particular provisions in the Kansas Constitution and legal precedent — meant the court was out of bounds.
Democrats and some moderate Republicans disagreed.
“We have equal branches of government, and we need to remember that,” Morris said.
The lack of a resolution frustrated members of the Senate who wanted the House to wrap up its work, get the money to schools and allow everyone to go home.
“At one point I put out a news release where I called it ‘Mays malaise,’” Senate Minority Leader Anthony Hensley said, referring to then-Speaker of the House Doug Mays. “They were unable to do anything.”
Mays, a Topeka Republican who left the Legislature a year later, didn’t respond to an interview request for this article.
Talk of potentially defying the court by ignoring its ruling, or asking Kansas voters to amend the state constitution, continued. The Kansas Constitution had — and still has today — a provision requiring the Legislature to suitably fund public schools, and potential ideas in 2005 included adding a line to it barring the court from weighing in on that matter.
In a legislative hearing, Washburn University law professor Bill Rich testified against the idea.
“That would mark a really radical change in the history of the relationship between the judicial and legislative branch,” Rich said.
It effectively would have carved out part of the constitution as unenforceable by the courts, Rich argued, and that could have broader implications. If lawmakers wanted to prevent judicial scrutiny of their compliance with a constitutional duty, Rich said, they should ask voters to remove that duty from the Kansas Constitution.
In this case, that would have meant deleting the clause requiring Kansas to suitably fund public schools. But asking the public to do that may not have been politically palatable.
“I think the Legislature knew that that was not going to pass,” Rich said.
As the impasse continued, lawmakers missed the court’s July 1 deadline, raising the possibility of school closure.
Political and government leaders knew school closure was a risk because a lower court ruling had made that clear. Absent a constitutional school finance system, the judicial branch was prepared to strike down the current one. In doing so, the court would block its implementation, which meant stopping the flow of money to schools.
The missed deadline increased pressure on everyone. School administrators like Randy Weseman, then superintendent of the Lawrence district, weren’t sure how long they would have the authority to keep paying the bills in the new fiscal year.
“When you’re talking about not providing education in August for 11,000 kids, 2,000 employees,” Weseman said, “it’s a huge undertaking to talk about just stopping that train.”
For Weseman, the matter was further complicated by the fact that Lawrence, a growing district, was in the middle of building new schools. He and other administrators watching the stalemate in Topeka began preparing to ask the Kansas Supreme Court to allow schools to continue paying certain critical expenses.
An ‘intense’ July 1 meeting
But the schools never closed. Two things happened in quick succession that appear to have pushed the legislative process forward. One was a closed-door nighttime meeting July 1 in Sebelius’ office, with key players like Morris, Hensley and Mays all present.
Mays reportedly left abruptly, dodging the questions of reporters waiting outside the room.
Hensley described the meeting as “very intense.” Mays knew, he said, that Democrats and moderate Republicans had been discussing a bill to comply with the court.
The other event, the next morning, was an order from the state Supreme Court, which wasn’t pleased with the Legislature missing its deadline. The justices gave state lawyers six days to prepare for appearing in court and presenting any last-minute arguments against blocking the flow of money to schools.
In the days that followed, the House and Senate negotiated.
“We basically had to pay the ransom and make sure the schools were going to open,” said O’Neal, who was one of the six negotiators.
They reached a resolution, and both chambers signed off on it two days before state lawyers were due back in court. That was a relief for moderate Republican leaders like Morris.
“It felt like we had taken a load off,” he said. “We had done what we needed to do.”
‘Quite a bit of reform’
O’Neal said conservative Republicans didn’t leave the negotiating table empty-handed. The final law approved by both chambers on July 6 included a raft of policies O’Neal and others pushed for.
Those included a policy goal for schools to spend at least 65 percent of their state aid on instruction, new procedures for filing school finance lawsuits against the state and provisions barring the courts from enforcing any rulings by cutting off money to schools.
“We felt like we got quite a bit of reform in exchange for writing a bigger check,” O’Neal said.
All attempts in 2005 to pursue a constitutional amendment, which would have required a two-thirds majority in each chamber before proceeding to a public vote, failed.
As for the statutory ban on closing schools, which lawmakers did pass, it’s not clear that the courts consider it binding absent a constitutional amendment. In more recent school finance rulings, cutting off money to schools has remained an option on the table despite the 2005 law.
Celia Llopis-Jepsen is a reporter for the Kansas News Service. You can reach her on Twitter @Celia_LJ.