School Finance I

"We affirm the district court's holding that the legislature has failed to meet its burden as imposed by (Article 6) of the Kansas Constitution to 'make suitable provision for finance' of the public schools." And so with those words the Kansas Supreme Court became what some might label an "activist court" by stepping beyond its authority into a role reserved by the Kansas Constitution for the legislature.

Yes, I took a moment to read the court's school finance opinion. And I too believe it brings into question separation of powers issues between the judicial and legislative branches.

The aforementioned Article 6 deals with education and pointedly says, "The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools.in such manner as may be provided by law." Folks, it is not the court's role to make the laws unless we are ready to amend this Consititution.

The court's opinion goes on to say, "We do not dictate the precise way in which the legislature must fulfill its constitutional duty." Well, why not?

I'll tell you why - because the court realizes that it is very close to opening "Pandora's Box." And once opened, it will be very hard to shutter.

Let me give an example. Article 7 of the Constitution deals with "benevolence" and says that the public good may require state support for those who cannot help themselves. So how long before the Supreme Court decides Kansans are not adequately supporting illigal immigrants living here?

Hyperbole? Perhaps. But the potential for court activism is endless.

In my view the governor and legislature abdicated their combined duty by not dealing with the school finance issue in the first place. It showed a compete lack of executive leadership. And placing the resolution in the hands of the court only compounded the problem, because it is wrong to legislate from the court. Why? We don't get to vote for judges.

You may, as I do, agree with the outcome - money for schools - but the means used to achieve that end are clearly at odds with established fundamentals of a representative democracy. The ends do not justify the means. And for that reason alone the court was wrong and henceforth deserves our watchful eye.

First published in the Manhattan Free Press, July 12, 2006.