Topeka Tuesday's court ruling in the ongoing school finance lawsuit could open the door for something Gov. Sam Brownback and Republican leaders in the Legislature have long been calling for — an overhaul of the state's school finance formula.
That's the assessment of Kansas University constitutional law professor Rick Levy. But he said lawmakers should be careful to make sure any new formula is designed to produce the results that the courts are now saying are expected.
"If I were advising the Legislature, I would start over and craft a formula based on what it takes to achieve the outcomes, and see where that takes you," Levy said. "If they think there are savings to be had, then craft the appropriate law in a way that targets those savings."
A three-judge panel ruled Tuesday in the case of Gannon vs. Kansas that current funding for public schools is unconstitutional. And while the judges did not order lawmakers to increase funding by a specific amount, they suggested that under the current formula, it could require raising the base aid formula to $4,654 per pupil. The current funding level is $3,852 per pupil.
The funding formula is used to determine each school district's spending authority. Districts actually receive more than the per-pupil amount because of "weighting" factors that apply to students from low-income households, non English-speaking households and other students who are more difficult, and more expensive, to educate. Weighting factors also apply to school districts with rapidly declining, or rapidly growing, enrollment.
Kansas Department of Education officials estimate that would cost at least $548 million a year. But the total price would likely be higher because under the current formula, an increase in base aid also triggers increases in other school spending.
But the judges also left open the possibility for other options and said the adequacy of whatever plan lawmakers come up with will be judged by its results.
"(T)he affirmative path to compliance and its duration may well rest in sincerity, practicality, and reasonable accommodation," the judges said. "A renewed effort at mediation focused on a remedy would seem appropriate, yet, at the parties choice."
Brownback and some Republican legislative leaders have said they think it's time to overhaul the formula anyway. And Levy said Tuesday's ruling could be seen as an invitation to do just that.
But Levy said one thing lawmakers ought to avoid is repeating of what happened in 2005 in response to the previous school finance case, Montoy vs. Kansas, when the Kansas Supreme Court ordered lawmakers to increase funding. Then, lawmakers were called into special session, but House Republican leaders at first refused to comply with the court order, prompting the court to threaten to shut down public schools until the Legislature complied.
In the end, lawmakers relented and passed a bill phasing in about $500 million in additional funding over three years, along with a statute that was supposed to guaranty future funding would be based on continually updated estimates of actual costs.
But that Montoy plan soon fell apart and the state began cutting education spending in 2009 when state revenues plummeted in the wake of the Great Recession. And by the time the economy started to recover and revenues rebounded, newly elected Brownback pursued a policy of enacting sweeping tax cuts instead of restoring base school funding to its pre-recession levels.
That prompted many of the same plaintiffs in the Montoy case to file the current lawsuit. Initially, the three-judge panel ordered lawmakers to restore funding to the levels that had been promised in the Montoy remedy, but the Supreme Court struck down that part of the decision and remanded the case to the panel for reconsideration using a different standard.
Instead of focusing on the actual cost, the court said in March that adequacy of funding should be determined by a different standard based on the results that funding produces. And those results would be measured using a set of educational outcomes known as the "Rose standards."
Tuesday's decision by the three-judge panel is certain to be appealed again to the Supreme Court. But in the meantime, Levy said, lawmakers should focus on funding education budgets at a level needed to achieve those results and building a record to explain why they think a particular level of funding is sufficient.