James J. Kilpatrick

Last week the Supreme Court turned down appeals in two cases it might usefully have heard. One case came from Kansas, the other from Hawaii. The cases had nothing in common, but they involved interesting points of law. Besides, the court needs something to do.

In Bergman v. Kansas , the court had an opportunity to strike a blow, not only for the ordered equality of public schools, but also for their voluntary inequality. This is the question, clumsily worded, that the high court refused to hear:

"Does a state violate equal protection when it purposefully disadvantages schoolchildren by unevenly restricting funds available for public education and then prohibiting underfunded school districts from funding the difference out of local funds?"

Translation: When public schools are financed hugely and equally through state funds, may individual localities independently supplement the state appropriation?

Historically, Kansas was among the 17 Southern and border states that once operated racially segregated public schools. Half a century ago, Oliver Brown of Topeka gained fame as the lead plaintiff in Brown v. Board of Education. After the high court's unanimous opinion came down, the state went to work toward equalizing its black and white schools.

In one way or another, through its legislature and its various courts, Kansas has been struggling toward "equalization" ever since. In the case just snubbed by the U.S. Supreme Court, the state's own Supreme Court succinctly explained the state's most recent effort:

"The changes made by H.B. 2247 included modifications to the weighting components of the finance formula and changes to the authority of certain districts to raise revenue through local ad valorem property taxes. H.B. 2247 modified the funding formula by increasing the Base State Aid Per Pupil (BSAPP), bilingual, and at-risk weightings, phasing in increases in special education funding, eliminating the correlation weighting (while retaining the low enrollment weighting) ..."

In the appeal just rejected by the Supremes, a group of parents in suburban Kansas City argued strenuously (but unavailingly) for their right voluntarily to tax themselves locally to improve their own schools. They ask: Is it constitutional for the state to handicap some school districts that are wrongly perceived as privileged or unduly advantaged, in order to achieve an appearance of equality among all school districts?

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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