Beneath the Radar


Beneath the Radar
by Richard Nadler

On June 3, the Supreme Court of Kansas issued a ruling requiring the state legislature to appropriate an additional $853 million per year to Kansas schools, K-12. The basis of the decision, said a unanimous court, was a clause in the Kansas Constitution: “The legislature shall make suitable provision for finance of the educational interests of the state.”

The increase equals roughly 20% of the state’s entire general revenue budget.In comes at the end of a fifteen year period during which Kansas’ expenditure per pupil doubled, exceeding the rise in consumer prices by 29%.

In 1973, the U.S. Supreme Court refused, in San Antonio Independent School District v. Rodriguez, to “equalize” school spending. No trend better illustrates judicial activism than the steady stream of state school finance decisions that followed. From Connecticut to California, liberal courts have broken legislative budgets and spending caps.“Equalization” has served as a pretext for tax increases in some states, and for attacking local control of schools in others.Indeed, “school finance litigation” has become a multi-billion dollar business, commanding its own corps of specialty lawyers and expert witnesses.

To a large extent, these developments passed beneath the radar of conservative opinion makers. The fights are sporadic and local.Moreover, conservative icons want no part of them. Victory against the education lobby carries a political price; grumbling acquiescence to a court does not.Thus, the most prominent conservatives in Kansas – men like Attorney General Phill Kline, Sen. Sam Brownback, and Sen. Pat Roberts – have absented themselves from public debate over the Kansas court’s actions.

The rationales state jurists present for assuming control of legislative functions have become bolder.In its June 3rd decision (Montoy v. Kansas), the state supreme court spills as much ink justifying its jurisdiction as its remedies.The latter are predictable and formulaic:more money for public education; less local control for district patrons.But the former are bold and exciting.In explicating their takeover, the Kansas Supremes cite a growing body of literature from law journals and other states, as well as their own precedents.Fans of republican government should take note.

In the Sunflower State, judges, legislatures and schools co-existed for a century and a half without it entering the heads of the first to replace the role of the second in appropriating for the third.But today, Kansas courts assume a right to determine public policy on the basis of the presentations of litigants before the bar.Explicitly adopting the rationale of a Kentucky court, the Kansas justices quote it:

“…[In this case] we are asked – based solely on the evidence in the record before us – if the present system of common schools in Kentucky is ‘efficient’ in the constitutional sense.… To avoid deciding the case because of ‘legislative discretion,’ ‘legislative function,’ etc., would be a denigration of our own constitutional duty.To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.”

In other words, the “record” that is presented in the course of litigation not only can, but must, replace the form of “fact finding” that goes on in state legislature.To refrain from a decision based on the limitations of the knowledge base available through litigation is “unthinkable.”

In fact, the imperfection of the legislative process provides the rationale for intervention.“Specifically,” say the justices in Montoy, “the district court found that the financing formula was not based upon actual costs to educate children, but was instead based on former spending levels and political compromise [Italic mine-RN].”

The rules-based actions that legislative bodies apply to base-line budgets are thus structurally suspect.A process so arbitrary invites review.But once a case has been presented, how are the constitutional duties of the three branches of state government defined?Once again, the Kansas court cites its Kentucky peers:

“The judiciary has the ultimate power, and the duty to apply, interpret, define, and construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it.It is solely [italic added by the Kansas justices – RN] the function of the judiciary to so do. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of the other branches, or even that of the public.”

Now, the relevant entries of Webster’s Collegiate Dictionary define “Apply” thus: a) “to bring into action, to put into operation or effect (as in a law);” andb) “[to] put to use, especially for some practical purpose.”

These phrases describe the traditional function of the executive branch in our state constitutions.What the Kansas Supreme Court has substantively claimed is an exclusive right to make law on any case brought before it.The constitutional oaths state executives take, like those of legislators, are in vain.

States are a particularly promising venue for this brand of juridical monopoly.The Kansas Justices cite a 1991 Harvard Law Review article to explain:

[U]nlike federal courts, state courts need not be constrained by federalism issues of comity or state sovereignty when exercising remedial power over a state legislature, for state courts operate within the system of a single sovereign.”

So our “single sovereign” is liberated from lesser sovereignties, as well as the constitutional claims of its co-equal branches of government.

For how long can the court claim this license? Harvard Law explains: “… the Court too must accept its continuing constitutional responsibility… for overview… of compliance with the constitutional imperative.’

To summarize:The public policy dicta of a state court need not be constrained by the messy squabbling of elected legislators, nor by facts neglected by the litigants-at-bar; nor by the constitutional duties of its co-equal branches; nor by lesser political subdivisions; nor by time itself.

It was a persistent dream of socialist and fascist thinkers of the twentieth century to replace the noisy, class-influenced machinery of democracy with a professional corps of experts who would design economic and social institutions in the interests of the people.In Montoy, the Kansas Supremes set their hands to it.But the best they could produce was a rehash of fragments of the legislature process, ripped from their moorings in popular sovereignty.

The court adopted a single study by a single committee of the legislature.The justices treated its proposals as law, and rammed them down the throats of all concerned.Montoy’s policy prescriptions – more funding for public schools, less local control – would have surprised the U.S. Supreme Court justices who rejected a “remedy” in 1973. For the majority, Justice Powell wrote:

It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain, under the present system, a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools.The people of Texas may be justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe that along with increased control of the purse strings at the state level will go increased control over local policies.

But then, Powell was constrained by those silly federalist principles.

— Richard Nadler is president of America’s Majority, a not-for-profit dedicated to building the demographic base of the conservative movement.


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