Topeka Gov. Sam Brownback says it is a good legal strategy for legislators to change the school finance formula just prior to a trial on education funding.
But John Robb, an attorney who represents school districts suing the state, said Brownback's plan will provide no legal protection.
"Playing games with the court system in an attempt to delay what the kids of Kansas are constitutionally entitled to is not the answer," Robb said.
Last week, several legislative leaders said it would be better to delay action on Brownback's school funding plan so that it could be further analyzed after the current legislative session and before the next one.
They have cited little support for Brownback's proposal to remove state limits on local property taxes for school funding. And they say Brownback's system of eliminating weights, or extra funding for certain education expenses, such as children who are learning to speak English, is extremely complicated.
But Brownback, a Republican, said he didn't think delaying work on changing the school funding system was prudent and he noted the upcoming trial in June.
“Once you have that case decided by the lower court, your options of how you deal with things get substantially restricted,” Brownback said.
“Your best time to deal with this is before you go to trial. As an old attorney and litigator, the time to settle something is before you go to trial, rather than afterwards,” he said.
Landon Fulmer, Brownback's policy director and point man on the school finance proposal, told legislators recently that Brownback's proposed legislation contains "something that is unique to a bill of this magnitude: it sunsets after four years."
Fulmer added, "This is important not only for ensuring that the Legislature can stay ahead of lawsuits, but also for appropriate public discussion at regular intervals of the thing we spend about half of the SGF (state general fund) on year to year. This is truly the Kansas way." He also said that passage of Brownback's proposal by the Legislature "will reset the clock on any lawsuit."
Robb, the attorney representing 55 school districts that claim the state is under-funding education, said that won't work.
"The governor's approach is an attempted end-run around funding the known costs (of education)," he said. "If his plan is adopted, the courts won't buy it. His remarks about loss of flexibility show that he understands this concept. The courts are highly likely to order that the known costs be funded. This will cost more," Robb said.
How much more? Here, Brownback and Robb are in agreement. Both say the costs could reach $1 billion.
Based on a previous Kansas Supreme Court decision, the Legislature approved a 3-year funding increase to schools, but before the final year was allocated, the Legislature started cutting education funds.
Robb said school cuts have totaled $455 million, and that schools were underfunded prior to the cuts. Base state aid is now $3,780 per student, the lowest it has been in a decade.
Fulmer has said a $1 billion settlement is the equivalent of either a 36 mil statewide property tax increase, or a 3-cent per dollar increase in the state sales tax, or a 2 percent increase in income taxes. "We have to act now to head this off," he said.
But Robb said $1 billion is less than half what it would cost to eliminate the state income tax, which Brownback has proposed. "The problem is that the Constitution requires that schools be funded but not that taxes be cut," Robb said.
Meanwhile, Democrats in the Legislature have argued that starting to restore school funding cuts from the state's growing reserve fund would be the better path. The school finance formula, they argue, is not broken, simply inadequately funded.