School funding adequacy: The next big question for the Kansas Supreme Court
Topeka ? The Kansas Supreme Court will soon be asked to decide whether a school finance bill that lawmakers passed on the final day of the regular session provides truly equitable funding for public schools.
In an earlier ruling, the court suggested that schools would not be allowed to open in the fall if lawmakers failed to solve the constitutional problems in the current funding formula.
Assuming the new bill passes constitutional muster — and many people think that’s a big assumption — then schools would reopen as scheduled in the fall. And as far as students, parents and teachers are concerned, life will go on as normal.
But that won’t be the end of the legal battles over school finance, because whenever the equity issue is finally resolved, the court will next turn its attention to the much larger question of overall adequacy of school funding.
The adequacy issue is not only bigger in terms of its potential price tag — roughly $550 million a year in additional school funding, according to the three-judge trial court panel that first heard the case — but it is also bigger politically, so much so that it is likely to dominate the upcoming 2016 legislative elections, regardless of which way the court rules.
Michael Smith, who teaches political science at Emporia State University, said there are already signs that parties and candidates are organizing around the school funding issue.
“If there is a moderate (Republican)-Democrat coalition — I don’t know how organized that is, but people are trying — they’re going to go into Johnson County and certain areas around Wichita and Topeka, and they’re going to hit that public school issue really hard,” he said. “That’s going to be their best shot to unseat some conservatives.”
On the other side of the political spectrum, Smith said, conservatives are already laying the groundwork to turn school funding into an issue about the court itself, raising the level of tension between the legislative and judicial branches to new heights.
“In the past, what we had was that the branches would grumble with each other, and so conservative legislators would go home and run for re-election by saying, ‘Well, those judges are doing it again, they’re being all imperious, and we didn’t want to raise taxes but our hands were tied by those darn liberal judges,'” he said.
“The difference is, now we have legislators that mean it, and they are actually fighting to really put some sharp restrictions on what the courts can do,” he said.
Examples of that have included proposed constitutional amendments to change the way Supreme Court justices are selected, none of which have passed, as well as a bill that did pass the Senate in March spelling out the possible grounds for impeaching Supreme Court justices, grounds that include “attempting to usurp the power of the legislative or executive branch of government.”
The adequacy lawsuit
The current case, Gannon v. Kansas, came about as a result of an earlier school finance case, Montoy v. Kansas, in which the Supreme Court ordered the state to increase school funding, based on estimates of the actual cost of providing all of the services that schools are expected to provide.
Following a bitter special session in 2005, the Kansas Legislature finally complied with that order, and in 2006 it passed a multi-year funding bill in which the state phased in over three years increases that totaled more than $800 million in additional funding. After the third year, according to that plan, funding would continue to increase with the rate of inflation.
But that plan came apart after the third year with the collapse of the financial industry, which hurled the nation’s economy into the Great Recession. As state revenues plunged, then-Gov. Mark Parkinson, a Democrat, ordered massive cuts in state spending, including public education.
In 2010, the group Schools For Fair Funding, a coalition of school districts that was behind the Montoy lawsuit, filed the new case, Gannon v. Kansas, after the Supreme Court declined to reopen the Montoy case.
After a month-long trial held in June 2012, a special three-judge panel sided with the plaintiffs and ordered the state to raise base per-pupil funding back to the level where it should have been under the Montoy settlement. At the time, that portion of the case was estimated to cost more than $400 million.
New court, new standards
But when that case was appealed to the Supreme Court, circumstances had changed. Lawton Nuss had replaced Kay McFarland as Chief Justice, and there were other new faces on the bench.
In a March 2014 ruling, the Nuss court essentially overturned a key part of the Montoy decision, saying “adequacy” should not be measured by cost estimates, but rather by the educational outcomes that the funding produces.
It then sent the issue of adequacy back to the three-judge panel for another review, this time using what are called the “Rose standards” for judging whether schools had enough money to meet expectations.
The Rose standards come from a 1989 school finance decision in Kentucky: Rose v. Council for Better Education, in which that state’s Supreme Court spelled out the kinds of knowledge and skills a person should have after graduating high school.
They include both academic skills in reading and other subjects that are needed for a person to be employable, along with certain “soft” skills such as knowledge of art, culture and civics that are needed to be a full participant in modern culture and society.
After another lengthy hearing in the summer of 2014, the three-judge panel issued its second ruling on Dec. 30, essentially saying it made no difference whether the court looked at the costs or the outcomes of education because they both measure the same thing.
The panel said that while the primary cost study used in the Montoy case was based largely on “inputs” — the cost of goods and services that go into an education system — “we sincerely doubt that its authors, or the objectives for which the inputs were formented, expressed or not, did so in ignorance of recognized educational objectives, such as the Rose factors, themselves formally enunciated in 1989.”
The court then went on to illustrate why it felt funding was still inadequate, based on the large number of students scoring below proficiency on statewide reading and math tests during the 2010-11 school year.
“If the statewide category of demonstrable non-proficient students in reading was considered to be the sole student body of a single, separate, school district (58,218), this school district would have constituted the largest school district in the state,” the panel wrote.
The panel also pointed out glaring achievement gaps for different sub-groups of students, including children from lower-income families.
“The economically disadvantaged subcategory of non-proficient students statewide in reading achievement was 44,248 or 19.5 (percent) of all students and 50,734 or 22.2 (percent) of them statewide were non-proficient in math,” the panel wrote. “Either of these two latter separate categories of non- proficient students could have filled nearly every seat in every school in every school district in every county with an eastern boundary beginning west of Salina.”
Soon after that opinion was released, the 2015 Legislature passed a bill repealing the entire school finance formula that had been in place for more than 20 years, replacing it with a system of block grants that effectively froze school funding in place for the next two years.
But the panel looked at that action during its third review of the case and issued another decision in June 2015 that the new law had only made things worse.
It then struck down several portions of the 2015 bill, effectively putting the old formula back in place, and reaffirmed its earlier ruling that said funding should be restored according to the formula agreed to after Montoy. But it stopped short of issuing another order, choosing instead to let the Supreme Court make the final decision.
New Kansas standards
Coincidentally, around the same time the Supreme Court changed the definition of adequacy by looking at student outcomes, the Kansas State Board of Education was changing its own curriculum standards for education, adopting what it now calls the Kansas College and Career Ready standards, which define whether students are on track for college admission or the workplace by the time they graduate.
The board also instituted new standardized tests for measuring student achievement under those standards, and the first scores from those tests were released last fall, showing that most students in Kansas are still performing below state expectations.
According to results from the 2015 tests, more than 1 in 5 students who took the English language arts test scored below grade level, and fully 58 percent scored below the level considered to be “on track” for college or the workplace. Among black and Hispanic students, 70 percent were not on track for college or careers.
And in math, the numbers were even worse: fully two-thirds of students taking the test were not yet on track for college or the workplace, including 81 percent of Hispanics and 85 percent of black students.
The decision to come
In written briefs filed with the Supreme Court, the plaintiffs argue, among other things, that the test scores show that current funding remains inadequate, and they are asking the court to uphold the three-judge panel’s order to increase funding by at least $550 million a year.
The state, meanwhile, argues that current funding must be considered adequate because all schools in the state are accredited, which means they must be meeting the standards established by the State Board of Education.
The state also argues that the whole question of “suitable” funding for education is a political question that must be left to the Legislature, and not the courts.
The court has said it plans to hear oral arguments in the adequacy case sometime this spring, although a formal date has not been announced. And many observers say they don’t expect a decision until after the November 2016 elections, in part because five of the seven Supreme Court justices are up for retention on that ballot.