COURT REPORTER
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TWO THAT GOT AWAY [By James 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
the Base State Aid Per Pupil (BSAPP), bilingual,
court; and once again, no. “The ordinance is a
opportunity to strike a blow, not only for
and at-risk weightings, phasing in increases
reasonable and viewpoint-neutral restriction on
the ordered equality of public schools, but
in special education funding, eliminating the
speech in a nonpublic forum.”
also for their voluntary inequality. This is
correlation weighting (while retaining the low
the question, clumsily worded, that the high
enrollment weighting) ...”
Judge McKeown explained: “The Center for Ethical Reform is a pro-life/anti-abortion
court refused to hear: In the appeal just rejected by the Supremes,
advocacy group that hires airplanes to tow
“Does a state violate equal protection when
a group of parents in suburban Kansas City
aerial banners over heavily populated areas.
it purposefully disadvantages schoolchildren
argued strenuously (but unavailingly) for their
These banners are typically 100 feet long
by unevenly restricting funds available
right voluntarily to tax themselves locally to
and display graphic photographs of aborted
for public education and then prohibiting
improve their own schools. They ask: Is it
fetuses. The Center has used this publicity
underfunded school districts from funding
constitutional for the state to handicap some
technique in many states and has found it to
the difference out of local funds?”
school districts that are wrongly perceived as
be very effective in spreading its message.”
privileged or unduly advantaged, in order to Translation: When public schools are
achieve an appearance of equality among all
Students of constitutional law had hoped the
financed hugely and equally through state
school districts?
Supreme Court would take the Honolulu case
funds, may individual localities independently
on First Amendment grounds. Is the sky over The record in the Kansas case suggests that the
Waikiki to be equated with a public park? If
state has made Herculean efforts, as a state,
so, the anti-abortionists might be entitled
Historically, Kansas was among the 17
to equalize and improve its public schools.
to their banners. Judge McKeown’s panel
Southern and border states that once
Counsel for the petitioners ask the high court:
refused to buy that argument. The airspace
operated racially segregated public schools.
Why should parents in Topeka or Lawrence or
over a city cannot be equated with public
Half a century ago, Oliver Brown of Topeka
Wichita be forbidden voluntarily to enlarge the
parks or public streets. It has never “typically
gained fame as the lead plaintiff in Brown
pot by taxing themselves? The nine justices,
been a focus of expressive activity.”
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.
perhaps numbed by last week’s argument in
supplement the state appropriation?
school cases from Kentucky and Washington
If the high court’s calendar were packed with
State, would not stay for an answer.
high-powered cases awaiting oral argument, denial in these two cases could be easily
In the same Order List in which they turned
understood. For good or ill (the alternatives
In one way or another, through its legislature
down the Kansas case, the Supremes denied
could be argued either way), these days the
and its various courts, Kansas has been
an appeal from the Center for Bio-Ethical
justices have plenty of time on their hands.
struggling toward “equalization” ever since.
Reform from a ruling of the 9th Circuit in
In the case just snubbed by the U.S. Supreme
Hawaii. In a unanimous panel opinion by
(Letters to Mr. Kilpatrick should be sent by
Court, the state’s own Supreme Court succinctly
Judge Mary Margaret McKeown, the court
e-mail to kilpatjj@aol.com.)
explained the state’s most recent effort:
upheld Honolulu’s ordinance prohibiting
“The changes made by H.B. 2247 included modifications to the weighting components
aerial advertising. Lovers of the beach at Waikiki will applaud.
COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE
of the finance formula and changes to the
Two questions were before the court: Is the
This feature may not be reproduced or
authority of certain districts to raise revenue
ordinance pre-empted by federal aviation law? If
distributed electronically, in print or
through local ad valorem property taxes. H.B.
not, does the law violate the First Amendment’s
otherwise without the written permission of
2247 modified the funding formula by increasing
protection of free speech? No, answered the
uclick and Universal Press Syndicate.
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