Topeka The long-running school finance lawsuit Gannon v. Kansas will return to the state Supreme Court on Wednesday, marking the fourth time the justices have been asked to resolve the matter.
This time, though, the oral arguments before the court will coincide with a hotly contested political campaign in which the issue of school funding is driving many races for state legislative seats.
The arguments also come at a time when five of the seven Supreme Court justices are on the election ballot themselves, and active campaigns are underway to convince voters to either retain or not retain them, based largely on their previous decisions dealing with school finance and other hot-button issues, including the death penalty.
All of that means, according to some observers, that voters in this year's elections may have as much to say, if not more, about the future of school funding in Kansas as the justices.
"I sort of agree that in many ways, the upcoming elections might be a referendum on the two sides of the school finance debate," said University of Kansas constitutional law professor Richard Levy. "There are a lot of other factors at play. But how the elections shake out will bear heavily on the legislative response to any Supreme Court order. And it might have an impact on the Supreme Court itself."
This year, the state will spend about $4.7 billion funding public schools, including $3.1 billion out of the state general fund, making K-12 education the single biggest expense in the state budget.
Plaintiffs in the Gannon lawsuit, however, argue that's not nearly enough to adequately fund the schools.
They have argued that the cuts former Gov. Mark Parkinson, a Democrat, ordered in 2009 and 2010 in the wake of the Great Recession, and the failure of the Legislature and Republican Gov. Sam Brownback to fully restore those cuts and keep up with rising costs, have caused harm to the schools, resulting in, among other things, lower student achievement.
And they say it's a violation of the Legislature's constitutional duty to "make suitable provision for finance of the educational interests of the state."
The Gannon case was originally filed in December 2010, shortly after Brownback's election, but before he took office.
In the years since then, he and the Republican-controlled Legislature have responded in several ways, most notably in 2015 when lawmakers repealed in its entirety the funding formula that had been in place since 1992, replacing it for two years with a system of "block grants" that effectively froze funding levels at that time in place.
Lawrence school district Superintendent Kyle Hayden said the block grant funding has been particularly harmful to the local district.
"We've been spending our reserve funds at a fairly rapid pace," Hayden said, speaking to about 550 people at the Lawrence Schools Foundation annual community breakfast. "There's a financial cliff that's coming, unless something changes."
The next school funding formula is expected to be written during the 2017 session. Between now and then, however, all 125 seats in the Kansas House, and all 40 seats in the Kansas Senate, are up for election.
That means no matter how the Supreme Court rules in the case — and most observers say it's almost a foregone conclusion that it will declare the current funding inadequate — it will be voters in the November elections who will largely determine what happens next with school funding.
"That’s proper. I wouldn't argue otherwise," said John Robb, one of the attorneys for the plaintiff school districts.
Both Robb and Levy agreed that the most likely outcome in the current phase of the lawsuit will be for the Supreme Court to declare the current funding levels inadequate and then direct the Legislature to fix the situation.
The major question will be how much, if any, direction the court will give about how much additional money it will take to make school funding in Kansas constitutionally adequate.
"And what I hope they do is to give the Legislature some sort of a guide star," Robb said. "That is to tell the Legislature, 'Do what you want to, but if you do this it would pass muster.'"
That's essentially what the court did in an earlier phase of the case dealing with the equitable distribution of funding, Robb said. And it's what the court initially did in an earlier school funding case, Montoy v. Kansas.
But the court received serious push-back from the Legislature in the Montoy case when, near the end, it ordered the Legislature to increase funding by hundreds of millions of dollars. Many GOP lawmakers interpreted that as usurping the role of the Legislature and violating the separation of powers doctrine by ordering an appropriation of money.
"That was widely interpreted by the Legislature as 'you must pay this amount of money,'" Levy said. "But the court has some obligation to say this is what’s adequate, based on information from below."
And it could be just as bad this time, if the court chooses that path, because, by Robb's estimates, the cost of bringing school funding up to the level of adequacy is in the neighborhood of an additional $800 million a year.
The next question for the Legislature, then, won't just be how to craft a new funding formula, but where to get the money it will take to satisfy the court.
Some state budget analysts have said the current budget today is about $300 million out of balance. That's roughly how much the state has had to take out of the highway fund, and through delaying payments into the state pension system, to keep the state general fund above water.
Add to that whatever the Supreme Court may say is needed to adequately fund public schools, and some observers say the next Legislature may be asked to raise taxes by as much as $1 billion to $1.5 billion a year.
How willing, or unwilling, the next Legislature will be to raise that kind of money, or any additional money, will depend on whom the voters choose to serve in the next Legislature.
"The problem since Montoy has been that courts can hold that the current system is unlawful as often as they want," Levy said. "But they are not prepared, and I don’t know that they have the power, to put money in that system. They are ultimately dependent on legislative compliance."