Montoy v. State ( 2005 )

Luckert, J.,

concurring: I concur fully in the result of the majority of the court and most of its rationale. However, I would find that education is a fundamental right under the Kansas Constitution. In this regard, I agree with Justice Beier s analysis of this issue.

As Justice Beier indicates, I addressed this issue when acting as the trier of fact in U.S.D. No. 373, et al. v. State, No. 90 CV 2406 (Shawnee County District Court, filed Dec. 16, 1993) (Slip op.), but did not state a conclusion of law regarding whether there was a fundamental right to education under the Kansas Constitution. Rather, as does Justice Beier, I cited the analysis of opinions such as Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993), and Kukor v. Grover, 148 Wis. 2d 469, 496, 436 N.W.2d 568 (1989), and left open the issue stating that “there may be a fundamental right.” (Slip op. at 94). Despite this language in the trial court decision, the Supreme Court interpreted my conclusions of law to include a determination that education was not a fundamental right. Further, the Supreme Court, at least impliedly, reached that conclusion. U.S.D. No. 229 v. State, 256 Kan. 232, 261-63, 885 P.2d 1170 (1994). Respectfully, I disagree with that conclusion and would adopt the rationale set forth in Justice Beier s concurring opinion, emphasizing the unique nature of Article 6, in which Kansas citizens mandate legislative action and then define the scope of the required action. See Article 6, § 1 (“The legislature shah provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools.”); Article 6, § 6(b) (“The legislature shall make suitable provision for finance of the educational interests of the state.”).