Kobach decides against fighting Kelly line-item education veto that angered Republicans

Kansas Gov. Laura Kelly’s line-item veto of a provision in the state’s education budget that could have devastated funding for small, rural schools appears likely to stand after Kansas Attorney General Kris Kobach’s office said it had decided against challenging the decision in court for now.

Kobach spokesperson Danedri Herbert said Friday the office “has decided not to take any action” on the line-item veto “at this time.”

The statement leaves open the small – but unlikely – possibility Kobach, a hard-line Republican and Kelly’s 2018 opponent, could reverse course later. Someone else, perhaps GOP lawmakers, could also file their own lawsuit.

Kelly, a Democrat, angered Republicans last month when she signed legislation funding K-12 education but vetoed a provision that would have altered how schools calculated their population. The change threatened to reduce funding to shrinking rural school districts, as well as a handful of urban districts including Kansas City, Kansas, and Wichita.

Kelly’s office expressed appreciation for Kobach’s handling of the review late Friday.

“While Governor Kelly and Attorney General Kobach may not always agree, we appreciate the Attorney General’s thoughtful and professional approach to vetting legal issues such as this,” Kelly spokesperson Brianna Johnson said in a statement.

“Governor Kelly is committed to protecting our rural schools, and her measured exercise of her constitutional line-item veto power over an item of appropriation of money did just that.”

One school district — Fowler USD 225 — would have taken an existential funding cut under the legislation. The Meade County district, with about 100 students, receives about $1.5 million in state funding a year. Fowler officials feared the formula change would have led to a cut of more than $400,000, threatening the district’s ability to keep its school open.

“Let’s just get to the point: the school would close down after the next year. There’s really nothing else to be said,” Superintendent Jamie Wetig told The Star in an interview last month.

In recent years GOP lawmakers have separated school funding from overall government funding as a way to tie the school funding to policy provisions that may not be able to pass with a veto-proof majority on their own.

Republicans had argued the decision to line-item veto the change was unconstitutional because it didn’t appropriate a dollar amount. In Kansas, governors have the power to line-item veto dollar figures in spending bills.

But top Republicans had previously signaled a full-blown challenge of Kelly was unlikely. Kansas Senate President Ty Masterson, an Andover Republican, in May said there was a 75% chance a lawsuit wouldn’t be filed.

Masterson suggested Republicans had expected Kelly to line-item veto more provisions in the bill. “The fact that they backed clear down to one little thing I don’t know that it’s worth the fight right now,” he said.

Kobach’s decision not to sue means that, for now, a legal precedent has not been set as to whether the line-item veto is constitutional.

The provision Kelly vetoed adjusts the formula for determining funding to each district by allowing schools to calculate aid based upon their current or previous years enrollment rather than any of the past two years. The change would have helped growing districts in suburban parts of the state, but it would have harmed shrinking rural districts and the state’s largest urban districts. Districts that closed a school in the last year would have been required to use current year enrollment only.

While rural districts would have faced the highest percentage cuts to their funding, Kansas City, Kansas, Public Schools and the Olathe School District would have lost the largest raw dollar amounts at $3.2 million and $1.6 million, respectively. The Bonner Springs district in Wyandotte County would have lost nearly $760,000.

According to the Kansas Department of Education, the Shawnee Mission School District would have gained about $1.1 million in funding, but a spokesman for the district said internal numbers indicated the district wouldn’t have benefited from the proposal. Wichita Public Schools would have lost more than $200,000 under the plan, but the Maize district in the suburbs would have gained more than $1.2 million.

At least nine districts, including Fowler, would have lost more than 5% of their state funding under the provision, according to figures circulated by the governor’s office.

The uncertainty over a potential lawsuit had communities fearful the formula change would not only harm school budgets but also deal a blow to small communities where schools are central to local identity.

Fowler closed its high school at the start of the academic year and began sending students in grades 7-12 to Meade, about 11 miles away. The agreement sets the stage for a potential future consolidation of the districts, but the funding cut would reduce the chance that Meade USD 226 would continue to operate the elementary school in Fowler.

“When you lose your school, you lose your town, you lose your community,” Wetig said.

The Star’s Katie Bernard contributed reporting