(Syndicated to Kansas newspapers April 11, 2016)

Martin HawverIn the same five-page order for a hearing on whether the Kansas Legislature has met its constitutional duty to provide equal support for public education, the court also has likely taken itself off the hook for its threat to close public schools on July 1.

Nope, it’s not right at the top of the order that sets a schedule for a hearing on whether the Legislature has, to the satisfaction of the high court, equitably funded capital outlay and supplemental state aid for school districts but down on the last page.

Down on page five, it says, “The briefs should address the remedial action to be ordered, and upon what date it should take effect, if the court were to conclude compliance has not been achieved.”

That’s the key: Did the Legislature’s internal shuffling of money within the school finance formula equalize the state’s aid to school districts—even with the inherently disequalizing “hold harmless” provision—meet the court’s order to deliver equal assistance to all districts, or not?

If the court finds that the moving around of existing funds—and giving districts their mathematically computed level of aid, and some a little more—meets constitutional muster, then the deal is done, and everything goes away. Maybe, except for that troublesome “hold harmless” provision that makes sure that in the reapportionment of state aid no district loses any state money.

If the court finds that the school spending bill that Gov. Sam Brownback signed into law last week doesn’t meet that equity standard, then it gets interesting.

The high court’s Feb. 11 order to the Legislature to fix that inequity or see the jurists shut down appropriations to public schools on July 1 becomes the thick black cloud hanging over the state.

The state’s position before the court is that the Legislature has fixed the problem spending no new money, just reshuffling it among districts—except for those that would lose money in the deal, and they are held harmless. Oh, and that financing public schools is the Legislature’s job and the court should stay out of that.

The school districts which are suing the state for not meeting its constitutional duty to equitably finance public education don’t think the shuffling of money around meets that goal. They have suggested that for about $38 million more or so, lawmakers could equitably finance that capital improvement and Local Option Budget assistance, and that small piece of the school finance issue could be cured.

But that hammer the court waved around—closing schools if the appropriation of that special assistance is unconstitutionally distributed, making the appropriations unlawful to disperse to districts—got smaller when the court asked the state and the schools to offer up their own plans for remedial action.

Key is that if the finance-fix is unconstitutional, we’re betting that neither the state nor the schools in the case want schools closed. The state, which includes the Legislature that passed the bill (32-5 in the Senate and 93-31 in the House) in this year in which all members stand for re-election, doesn’t want those voters to believe legislators closed schools, and the schools, well, we’re betting that they want to stay open.

Best guess is that if neither party to the lawsuit wants schools closed, they are going to come up with “remedial action” that is just short of closing down anything. And, because five members of the Kansas Supreme Court stand for retention election this year, we’re betting that the court will find at least one side’s remedial action fits the bill.

The lawsuit isn’t over by a long shot. But we’re betting that the threat of closing down schools is.