Changing the Kansas Constitution to more clearly define or remove the word suitable from Article 6 to fix the constant school finance litigation in the state is an option for the Kansas Legislature with the help of the people, but it’s not an easy task.
“If the Kansas Legislature wished to begin the process of Constitutional Amendment, they could,” said Lumen ‘Lou’ Mulligan, law professor at the University of Kansas. “It takes a two-thirds vote out of both the Kansas House and the Kansas Senate to send a Constitutional Amendment to the general ballot and that just requires a majority of voters to approve.”
If that is a choice the Legislature wants to make, they have almost infinite options.
“There’s numerous ways they could do it,” said Mulligan. “First, they could just delete that sentence altogether. That would take the question out of the court system. They could delete the word suitable from Article 6, Section 6 if that’s what they wanted to do and that would almost assuredly take the question away from the Kansas courts. They could insert language at the beginning of that sentence, something like, ‘As determined exclusively by the Legislature, the Legislature shall make suitable provision…or, it could go on even further and they could say, add a whole new sentence if they wanted to.”
It may be hard to figure out who actually writes any of these proposals.
“It could be anyone who would draft it and then put it in the hands of a legislator to get it submitted before the House or the Senate,” said Mulligan. “It could be an outside group. It could be the Chamber of Commerce. It could be the Kansas Education Association. It could be a staffer, or it could be a legislator him or herself, but it would have to be introduced by a legislator.”
There is also the consideration of putting a number into the Kansas Constitution to define suitable, but Mulligan doesn’t see that as a solution.
“You would be, once again, locking in a judicial question,” Mulligan said. “If what you’re trying to do is try to ensure that the courts are not involved in budgeting, then I would not put in a particular percentage. That just creates a new legal question.”
The Legislature has until the end of the fiscal year to come up with a solution, whether that is through a new school finance law or through amending the document.