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Archive for Thursday, August 22, 2013

Attorneys use sharp rhetoric in final school finance briefs

August 22, 2013

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Lawyers in the school finance lawsuit pending before the Kansas Supreme Court used sharp rhetoric to drive home their points in final written arguments to the seven state justices.

The case, Gannon vs. Kansas, is scheduled for oral arguments on Oct. 8. In recent days, attorneys from both sides filed their third and final written briefs to the court, responding to the arguments each side had made in earlier briefs.

Their language reflects how passions in the case are running high on both sides, something evident from the lawyers' opening paragraphs.

“Despite the (plaintiff) Districts' highbrow rhetoric about the Legislature and Kansas schools, the only relief they seek is more money,” wrote Stephen McAllister, a Kansas University law professor who is serving as solicitor general for the state in its appeal of the case. “The case is about money and, most importantly, it is about who decides how much funding is 'suitable' for Kansas schools.”

The plaintiffs – a group of school districts called Schools for Fair Funding who argue that the Kansas Legislature has violated its constitutional duty to provide suitable funding for public schools – were equally caustic in their response.

They argued that the state has mischaracterized their case as, “merely the money-hungry machinations of political operatives who had been appropriately thwarted in their attempts to devour more state resources by the operation of the democratic process.”

“The State even tries to drum up sympathy for State Legislators in response to Plaintiffs' supposed 'attempt to demonize the Legislature',” wrote Alan Rupe and John Robb, the Wichita attorneys representing the plaintiffs. “The State essentially argues that this is a 'public policy debate' and that the Court would risk engaging in 'taxation without representation' should it act contrary to the political will of the Legislature.”

The state is appealing a decision handed down in January by a three-judge panel that held the state is under-funding public schools by more than $500 million a year.

The plaintiffs have filed a cross-appeal, arguing that the three-judge panel did not go far enough, and that the actual level of under-funding is closer to $1.3 billion a year.

The plaintiffs' case rests on Article 6, Section 6, of the Kansas Constitution, which says the legislature “shall make suitable provision for finance of the educational interests of the state.”

In the last school finance case, Montoy vs. Kansas, the Supreme Court said that meant the state had to base its funding on the actual cost of providing an education, including the cost of complying with laws such as the federal No Child Left Behind act, which requires all students to be proficient in reading and math by 2014.

That ruling in 2005 led to a lengthy special session in which conservative Republicans in the Kansas House at first refused to comply with the order, arguing that Court had overstepped its bounds and that school funding should be a legislative decision.

They eventually relented, though, after the Court threatened to close the entire K-12 public school system unless the Legislature complied.

In the new case, the state is making essentially the same argument.

“The Districts offer this Court one skewed view of the world, a view in which courts and litigants will determine funding for Kansas public schools in perpetuity while the people's elected representatives have neither authority nor control over this quintessentially fiscal matter,” McAllister wrote.

But the plaintiffs counter that the Legislature's authority is constrained by the Constitution.

“The Legislature lacks the power to decide to completely disregard the costs for a suitable education when it makes funding decisions,” they argued.

Also in recent days, two outside groups – the Kansas Association of School Boards and the Emporia school district – have asked permission to file so-called amicus, or “friend of the court” briefs supporting the plaintiffs.

The Court is expected to rule on the case around the end of the year.

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