It has been precedent in several states that courts get to decide funding levels for K–12 education, effectively removing such spending from legislative control.

Dan’s righteous indignation at a district court’s ruling that Congress must fund Planned Parenthood is worth a read. He nails all the points about how deciding what gets funded and at what levels is a fundamental legislative power that courts should not second-guess. “If Congress lacks the power to decide when not to spend taxpayer money, it may as well disband,” he writes.

He’s correct, and the same thing ought to apply to state legislatures. Yet it has been precedent in several states that courts get to decide funding levels for K–12 education. And unlike Planned Parenthood in the federal budget, education spending is one of the largest portions of state budgets, effectively removed from legislative control if people file a lawsuit and get judges to agree with them. In those states, the legislatures may as well disband, too.

In general, public schools are funded by a combination of local property taxes and state aid. The level of state aid is decided by the legislature in the state’s budget. That’s a legislative function, no different from setting funding levels for transportation or health care. People argue over how high it should be, but once the legislature votes and the governor signs it into law, that should be it until the next budget cycle.

Some states, though, have provisions in their state constitutions that include adjectives that activist judges have exploited to take the power of the purse away from the legislature on education. For example, the Kansas constitution says, “The legislature shall make suitable provision for finance of the educational interests of the state” (emphasis added). How much funding is “suitable,” and who gets to decide?

One might think the legislature decides, since it is named in that sentence. The Kansas constitution also has a vesting clause, similar to the federal constitution, that says, “The legislative power of this state shall be vested in a house of representatives and senate.” Budgeting is clearly a legislative power. But it has been the practice in Kansas that because the word “suitable” appears in the constitution, it is up for interpretation by the Kansas Supreme Court.

So whenever state aid in Kansas isn’t as high as school districts want it to be — and they basically always want it to be higher — the districts file a lawsuit alleging that the funding level is not suitable and therefore is unconstitutional. And rather than dismiss these suits as self-serving legal sophistry, the Kansas Supreme Court has ruled in their favor many times before and ordered higher education spending.

The rulings have enormous impact. As a 2019 New York Times story after one such ruling said, “Kansas now spends more than $4 billion a year on its public schools — about $1 billion more than it did during the 2013-14 school year — because of the court’s decisions.”

After that 2019 decision, the Kansas Supreme Court held the case open for five more years, effectively giving the justices veto power over the legislature’s education-funding levels. The person to whom the veto power actually belongs, Governor Laura Kelly (D.), said in 2024, “The Legislature must not take this ruling as license to cut funding from our public schools.”

That’s her opinion, and she can act on it if she wants as the state’s governor, who must sign the budget for it to become law. But courts should not. That’s not their job, and the decades-long legal battles over the Kansas education budget show it isn’t a particularly good way to run government, either.

Kansas is far from the only state where activist courts rewrite the state budget for education. Courts in Washington, New Hampshire, New Jersey, Pennsylvania, and North Carolina have all ordered higher education spending in recent years. Just because this constitutional abuse has become routine doesn’t make it any less serious.

Congress should be able to choose how much it wants to fund Planned Parenthood, and state legislatures should be able to choose how much they want to fund public schools.