Thursday, February 14, 2013

The People are King, but Where Do They Rule?

Two days of hearings on a constitutional amendment regarding suitable school finance concluded today.  I testified in opposition on behalf of KASB.  My testimony is below.

Two basic views on the constitution and the role of the courts emerged.  Several Legislators expressed the view that the Legislature, not the courts, should determine funding levels, because Legislators are directly accountable to the people in regular elections.  Senator Forrest Knox expressed the view that in the American system, the people are king, expressing their views through majority votes in elections.  From that perspective, Kansas Courts have overstepped their authority in ordering specific levels of funding, and the constitution should be changed to give the people more control over school funding through their the legislative representatives.

I tried to represent an alternative view.  I agreed the people are king, but noted that the people have placed in their constitution a higher standard for funding education.  The constitution was adopted by the people, and the people have said they expect their representatives to provide "suitable finance" for the educational interests of the state - a higher standard than the expression of a legislative majority. The current constitutional language allows individuals to challenges whether the Legislature is meeting that standard set by the people.

Committee chairman and Senate Vice President Jeff King noted that the people added the provision regarding suitable funding in 1966, and could vote to amend it once again. That is certainly their right.  The question is whether Kansas SHOULD remove a higher standard for educational funding, or whether education funding should continue to be given a special status.  That is the real question for the Senate and House, and if two-thirds of each chamber agree, ultimately for the people.

Testimony before the Senate Committee on Judiciary on SCR 1608 – Suitable Provision for Finance, Kansas Constitution, by Mark Tallman, Associate Executive Director, Kansas Association of School Boards, February 14, 2013
            Thank you for the opportunity to testify on SCR 1608.  We oppose this proposed constitutional amendment because we believe it would weaken our state’s commitment to education as a fundamental right of the people and a fundamental duty of government.  That commitment was placed in the constitution by the people of Kansas at the beginning of statehood.  It was strengthened when the education article was amended by the people in 1966 to read “The legislature shall make suitable provision for finance of the educational interests of the state.”

            Since 1966, the Kansas system has worked extremely well.  Measures of educational attainment have steadily increased.  Kansas ranks among the top states in education not just in our region but nationally.  The cost of providing this system has increased at a slower rate than total personal income in the state, which has risen along with educational attainment.

            This proposed constitutional amendment would modify that direction by adding “The financing of the educational interests of the state is exclusively a legislative power under article 2 of the constitution of the state of Kansas and as such shall be established solely by the legislature.”

            If the people intended school finance to be whatever the legislature deemed appropriate, there would have been no need for language directing the legislature to make suitable provision for finance.  The legislature already had that authority.  The purpose of the current article is to provide a higher standard.  A right or duty defined exclusively by a legislative majority is not a constitution right.

            A constitutional right or duty means that citizens can appeal to the courts for relief from legislative action or inaction.  Although the American system is based on majority rule, our state and federal constitutions include many rights that are intended to be above exclusive legislative control, in order to protect both majority and minority rights.

            This amendment would mean children, districts, communities, regions of the state or any other individual or group not represented by the Legislative majority could lose the right to seek relief through the courts if the Legislature fails to provide funding necessary to provide the educational improvement mandated by the section one of the same constitutional article.

            We believe educational rights and duties should be held to a higher standard than whatever a shifting legislative majority deems appropriate, because no function of the state is more important.  We agree with Governor Brownback, who has observed that as the fundamental duty of the federal government is national defense, the core function of state government is education.

            We believe the state can and should find an appropriate way to deal with current constitutional challenge, as it has done in the past.  Therefore, we oppose the passage of SCR 1608. 

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