Unanimous decision by Kansas Supreme Court: School financing system does not meet constitutional requirements

School district attorney Alan Rupe, left, presents his case in a school funding case at the Kansas Supreme Court Wednesday, Sept. 21, 2016, in Topeka, Kan. The hearing stems from a 2010 lawsuit brought by four school districts contending schools are underfunded by the state. (AP Photo/Charlie Riedel)

TOPEKA —  The Kansas Supreme Court on Thursday declared that funding for public schools in the state is unconstitutionally low, and it gave the Legislature until June 30 to come up with a response, setting up another possibility that it could order the closing of public schools if lawmakers fail to come up with a satisfactory solution.

The court did not give lawmakers specific instructions about how much more funding would be needed. But the Kansas State Department of Education has said that its budget request for the next two years was designed around meeting standards set out in an earlier Supreme Court ruling, and that request seeks at least $841 million in additional funding over the next two years.

The decision came during the Kansas Legislature’s weeklong recess. Legislators will return Monday for the second phase of the 2017 session, with the issue of school funding now at the top of their agenda.

Alan Rupe, lead attorney for the plaintiffs, said immediately after the decision was released that he believes the Legislature will act quickly.

“Voters did not retain the conservative legislators linked to Governor (Sam) Brownback, and instead replaced them with more moderate candidates,” he said. “Many Kansans associate Governor Brownback’s tax cuts with the state’s inability to fund basic state programs and agencies, as well as education. The new, more moderate Legislature has already suggested that it will repeal some of the tax cuts put into place by Governor Brownback. This would go a long way in not only allowing Kansas to address the inadequacies in education funding, but also in addressing the overwhelming budget deficit that Kansas is currently facing. “

In its 83-page decision, the court said standardized test scores in reading and math, both before and since the trial, showed that Kansas is not providing an adequate education to roughly one-fourth of all students and that certain minority groups are being harmed the most.

Based on the most recent test scores, the court said, nearly half of the state’s African-American students and more than one-third of all Hispanic students are not proficient in reading.

“We acknowledge that some subgroups can have their own special challenges to achievement,” the court said. “However, their particular hurdles do not satisfactorily explain why today nearly one-fourth of all Kansas students are not proficient in reading.”

The case, Gannon v. Kansas, was filed in 2010, at the end of Democratic Gov. Mark Parkinson’s administration. It alleged that cuts in public school funding made in the wake of the Great Recession starting in 2009 were unconstitutional and violated the standards of adequate funding that were set out in an earlier school finance case.

Plaintiffs in the Gannon case, which included the Wichita, Dodge City, Hutchinson and Kansas City, Kan., school districts, had asked the court to order the Legislature to increase funding upwards of $550 million a year.

That claim was based on Article 6 of the Kansas Constitution, which says, “The Legislature shall make suitable provision for finance of the educational interests of the state.”

The state had argued that school funding is a matter for the Legislature to decide as part of its authority to set the entire state budget and that courts should not try to second-guess the Legislature.

In 2014, the court ruled that parts of the school funding plan at the time did not treat all districts equitably, and it ordered changes to certain portions of the funding plan. But it sent the question of overall adequacy of funding back to a three-judge district court panel for reconsideration.

In that decision, the court reversed earlier decisions that said the adequacy of funding should be based on the actual cost of providing services. Instead, it said adequacy should be judged based on a set of educational outcomes, known as the “Rose standards,” which define the kinds of knowledge and skills a student needs to be successful in life after graduating from high school.

After another trial, the three-judge panel in 2015 reaffirmed its earlier decision, noting the large number of students in Kansas who were failing to meet state proficiency standards on reading and math tests.

And the court noted in its decision Thursday that as of the 2015-2016 school year, there were 33,000 Hispanic students and 15,000 black students performing below grade level in at least one of those subjects, enough students to fill “every school district in every county with an eastern boundary beginning west of Salina.”

In 2015, though, Kansas lawmakers repealed the school funding formula that had been in place since the early 1990s and replaced it with a system of block grants for the next two years. That effectively froze funding in place while giving lawmakers two years to come up with another formula.

But lawmakers so far have not come up with a new formula, and the block grant statute is set to expire on June 30.

The Kansas House has appointed a special committee this year to focus on writing a new formula. One of the members of that panel is newly elected Rep. Jim Karleskint, R-Tonganoxie, a former school superintendent who taught school finance to doctoral students at Baker University.

“It will be a real balancing act, but I think it could be addressed,” he said. “It’s not only test scores we need to look at. There are other criteria too. The Rose standards are going to be difficult to write a formula around, in my opinion.”

The court gave no specific instructions about how to fix the current funding system. But it warned that “if by June 30, 2017, the State has not satisfactorily demonstrated that any K-12 public education financing system the legislature enacts is capable of meeting the adequacy requirements of Article 6, then a lifting of the stay of today’s mandate will mean that the state’s education financing system is unconstitutionally invalid and therefore void.”

In an earlier school finance case in 2005, the court allowed the Legislature to pass a multiyear funding plan that phased in substantial increases over three years.

Rupe, however, said the Gannon case was filed because lawmakers failed to make good on that plan in the third year.

“I’m going to be quoting Ronald Reagan all over the place and tell the court, if it’s a multiyear plan, we need to trust and verify, and not dismiss the case so that we can make certain that the Legislature doesn’t all of a sudden change, with other folks’ return to the days of yesteryear and have substantial cuts,” he said.

Justices Carol Beier and Caleb Stegall, the newest member of the court, recused themselves from the case. Stegall had been Brownback’s chief counsel while the case was being litigated. Beier did not give a reason for her recusal.

In their places, senior Judges Michael Malone, of Lawrence, and David Stutzman, of Manhattan, were assigned to hear the case.