Co-authored with John Rury, Professor of Education at the University of Kansas.
The ongoing debate in Kansas over school funding is important not only for the state's education policy, but also for how we think about our democracy. Controversy was rekindled at the end of December when a three-judge panel of the District Court in Shawnee County issued a judgment declaring the legislature's current funding formula inconsistent with the Kansas Constitution. The panel noted that the formula was both inadequate and inequitable, and that as much as $802 million in additional resources for public education could be required for the legislature to meet its constitutional obligations.
Echoing other Republican legislators and conservative pundits, Senator Steven Fitzgerald of Leavenworth was quoted in the Kansas City Star describing the ruling as "terrible," adding "people who voted for their representatives aren't going to be too happy with the unelected judges saying their money has to go more into the schools." This suggests that courts should be subordinate to the majoritarian legislature, which in turn should have complete discretion over how, or even whether, to fund education for everyone.
But this argument misapprehends the nature of constitutional democracy. As conceived since the nation's founding, constitutions are understood to provide the legal framework for democratic government, distribute political authority among its branches, enshrine rights, and lay out the fundamental values and principles by which to live for generations to come. Given this, other laws and government action must be consistent with the constitution, or be deemed invalid.
In the American model of democracy, with three branches of government, it is the courts that have the responsibility for interpreting the constitution and determining whether the laws, policies and acts of the legislative and executive branches of government are consistent with the constitution. This is true in each of the states as well. Unelected judges do not make that process of determination undemocratic. Quite the contrary; the interpretation and enforcement of principles enshrined in the constitution, especially regarding the rights and interests of minorities, must be as impervious as possible to the political pressures of the day.
While the Kansas Constitution is consistent with the U.S. Constitution, it also reflects the values and principles of the state's people. Unlike the federal Constitution, it deals with education. In Article 6 it lays out principles regarding schools, specifying in Section 1, that "the legislature shall provide" for education "by establishing and maintaining public schools," and in Section 6(b), that "the legislature shall make suitable provision for finance of the educational interests of the state."
The Kansas Supreme Court has determined, like courts in other states with similar provisions, that this clause imposes constitutional obligations upon the legislature. And when the legislature's law and policy regarding funding for public schools is challenged by Kansas citizens, it is the constitutional duty of the courts to determine whether the formula fulfills that obligation. The courts of Kansas, including its Supreme Court, have held that the obligation to "make suitable provision" means that funding must be both adequate and equitable, meaning that all school districts in Kansas must receive a certain minimum level of funding, distributed equitably.
The judges in the most recent decision noted that 58,218 students are non-proficient in either reading or math and cited research and expert testimony indicating that additional resources can be critical to their success. They also observed that test scores have declined since the legislature cut funding in 2008. This raises the question of whether law-makers appropriately considered these children, many of them living in poverty, when reducing the state appropriation to local schools, now more than $500 per pupil lower than before the recession. It also suggests a pattern of inadequacy and inequity in funding. If majoritarian legislative views, such as that represented in Senator Fitzgerald's remarks, compromise the constitutional right of these children to an adequate education, it is the obligation of the courts to defend their interests.
Reasonable people may disagree with what constitutes adequate funding for education. But in the state that gave rise to Brown v. Board of Education, it is difficult to imagine anyone today seriously defending inequitable education. And to argue that the courts have no business judging the issue is to ignore the obligations imposed by the Constitution of Kansas, and to exhibit ignorance regarding the fundamental role of an independent judiciary in a constitutional democracy.