Understanding Justice Beiers Concurring Opinion

1
Understanding Justice Beiers Concurring Opinion

• Bruce D. Baker

2
Education is a Fundamental Right under the KS
Constitution

• (b) The legislature shall make suitable provision
  for finance of the educational interests of the
  state. No tuition shall be charged for attendance
  at any public school to pupils required by law to
  attend such school, except such fees or
  supplemental charges as may be authorized by law.
  The legislature may authorize the state board of
  regents to establish tuition, fees and charges at
  institutions under its supervision.

3
Why the KS Supreme Court assumed in 1994 that
education was not a fundamental right

• Plaintiffs had challenged the differences in
  funding as violation of equal protection
• Trial court Judge Luckert had to decide whether
  these differences either (a) treated suspect
  classes differently or (b) deprived children of a
  fundamental right.
• She decided that neither situation applied, but
  passed on the question of whether a fundamental
  right existed
• Deprivation did not exist because the legislature
  had passed accreditation standards and because
  all districts met those standards
• But, there were still disparities present, above
  and beyond the minimum standard that required
  evaluation
• Beier explains and Justice Luckert concurs that
  the Supreme Court backed out of Luckerts opinion
  that since she had applied rational basis, she
  must be assuming that no fundamental right
  exists. Rather, she assumed that no-one had been
  yet deprived of a fundamental right that might
  exist.

4
If education is a fundamental right

• State policies denying that right to any group of
  otherwise similarly situated students would have
  to be reviewed under strict scrutiny.
• Does this mean that current school finance
  policies must be reviewed under strict scrutiny
  in equal protection challenges?

5
Senators spin

• "If the Supreme Court should adopt the reasoning
  of these three justices, what it would amount to
  is, the court would take over writing the school
  finance formula and determining how much money
  should be spent, because the state could never
  win a lawsuit again," (AP Wire, Sept. 9)

6
What Beier actually wrote

• "Of course, once we recognize the existence of a
  fundamental right to education under our Kansas
  Constitution, the question is how legislation
  implicating education financing should be
  reviewed. As I have said, I understand and agree
  that the rational basis standard of review should
  apply."

7
What Beier actually wrote

• "If inequities in a school financing system
  become so egregious that they actually or
  functionally deny the fundamental right to
  education to a segment of otherwise similarly
  situated students, we must be prepared to require
  more of our legislature than a mere rational
  basis for its line drawing."

8
Question How much is needed to achieve
constitutionally sufficient outcomes?
9
In short

• Justice Beier has explained that if the
  legislature is to go so far in its design of
  state school finance policy that the legislature
  actually or functionally denies students access
  to some minimally adequate, constitutionally
  guaranteed level of education, then the court
  should apply strict scrutiny to their evaluation
  of the legislature's actions.
• Yes, in such a case, it would be very difficult
  for the legislature to "win." (e.g. protect their
  right to deprive some students of a
  constitutionally adequate education.) But then
  again, it should be.

10
That said

• This whole discussion relates only to whether the
  current school funding system violates the equal
  protection clause, which thus far, the Supreme
  Court has determined it does not.
• However, the court retains much wider latitude to
  rule that the system does not make suitable
  provision for finance of the educational
  interests of the state.
• Thus far, the court has considered suitable to
  mean both equitable distribution and adequate
  level.