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Kansas Supreme Court teetering on tyranny

If the Kansas Supreme Court rejects the Legislature’s latest attempt to mollify on school funding as predicted, Governor Colyer and the Legislature will soon face another monumental decision.  Individually and collectively, they must decide whether (finally) to defend the constitution and reject the court’s attempt to establish a judicial oligarchy or (again) make an even greater offering of appeasement to the deities, which will (still) do nothing for students.

Yes, that’s a rather stark statement.  But governors and legislators risk destroying our state’s founding principle of liberty by continuing to allow the judiciary’s assault on the separation of powers.  Samuel Adams said, “The liberties of our country, the freedom of our civil constitution, are worth defending against all hazards: And it is our duty to defend them against all attacks.” And no less than the Kansas Supreme Court says the same is true at the state level.

Striking down the Legislature’s attempt to allow local judges to elect their own Chief Judges (rather than be appointed by the Supremes), the court wrote, “…by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either.” The Court went on to say that “[O]ne department of government usurps the powers of another department when it exercises coercive influence on the other.”

Ordering the legislature to appropriate more money under threat of (illegally) closing schools is certainly coercive, thereby invoking the legislature’s duty to oppose encroachment on its constitutional authority.

Some legislators have been willing to defend the constitution and the rule of law but so far, most legislators along with governors Sebelius, Brownback and Colyer have opted for appeasement – and thrown students under the bus in the process.

Court has no authority to set funding

A 1994 decision from the Kansas Supreme Court in USD 229 vs. State of Kansas said the constitution prohibits courts from setting funding levels, as the authority to appropriate is vested solely in the Legislature.  The current court’s Goldilocks games – not setting a specific amount but continually saying ‘it’s not good enough’ – is sham.

Court sets political flip-flop standard

PoliticalDictionary.com defines ‘flip-flop’ as “A sudden reversal of opinion or policy by a politician, usually running for office.”  Kansas Supreme Court justices aren’t running for office but their antics are most certainly political.

Their initial ruling in March 2014 declared the lower court had used the wrong test to determine adequacy and established a new test, saying adequacy is met when funding is reasonably calculated so students can meet specific (Rose) standards; they also said all funding, not just Base State Aid, should be considered and that the cost studies used by the lower court were “more akin to estimates” than the certainties the lower court envisioned.  (It’s widely believed the court’s position was informed by a 2009 KPI study proving that the Augenblick & Myers study used in previous court proceedings had been deliberately skewed to produce inflated costs.)

But that was 2014, when the Legislature was decidedly more conservative and perhaps more likely to stand up to tyranny; the 2016 judicial retention elections were also just around the corner and there was already talk among conservatives of taking a run at getting some of them booted.  The 2016 election not only dashed hopes of getting some new justices, but also ushered in a much more liberal and compiant legislature.

Thus emboldened, the October 2017 court ruling was one flip-flop after another.  The cost studies previously dismissed suddenly were resurrected as the basis for needing to spend at least $600 million more and Base State Aid was all the rage again.

The bogus A&M cost study wasn’t designed to theoretically meet the Rose standards, and neither the plaintiffs nor the Department of Education has been able to quantify an attainment measure.  Not to worry though; the Kansas Supreme Court declared that approximately 25 percent of students weren’t meeting standards based on performance on the 2017 state assessment test – even though the standards for that test pre-dated the March 2014 court establishment of a new standard.

$818 million might only be halfway there

Legislators increased funding by $293 million over two years in May 2017, which was rejected by the court in October.  Now the court will determine whether another $525 over five years will appease the court and the entitled plaintiffs, but it’s not looking good.  In oral arguments last week, several justices were clearly miffed that the Legisalture didn’t fully fund the additional $1.7 billion to $2 billion recommended by the WestEd cost study.

That study survived a peer review by one scholar hired by the Legislature, but another respected scholar hired by Kansas Policy Institute concluded that cost function studies “…do not provide valid and reliable estimates of the minimum “cost” of achieving a given outcome.  Dr. Scafidi’s data also disproves the notion that spending more causes student achievement to improve.


The only appropriate response to a court that won’t respect the rule of law embodied in the separation of powers doctrine, the state constitution and Kansas statutes is to simply thank the court for its opinion.  No more money…no more appeasement.  Governor Colyer and legislators should (finally) put students above all else (including re-election worries) by keeping schools open and, at the earliest possible opportunity, implement accountability measures with consequences; reward employees for improved student performance and allow students in the worst-performing schools to attend another school with a taxpayer-funded scholarship.

To do otherwise threatens the future of our state and leaves more generations of students behind.