Big day almost here: Kansas Supreme Court to decide whether school funding plan is constitutional

TOPEKA — Lawyers for the state of Kansas and four plaintiff school districts will be back in front of the Kansas Supreme Court on Tuesday, arguing — for the sixth time — about whether the state is spending enough money on public schools to comply with constitutional requirements for adequate and equitable funding.

This time, though, the stakes are as high as they’ve ever been. In its most recent order in October, the court struck down the funding formula lawmakers had approved during the 2017 session, saying the state must have a constitutional funding system in place by June 30.

After that date, the court said, “We will not allow ourselves to be placed in the position of being complicit actors in the continuing deprivation of a constitutionally adequate and equitable education owed to hundreds of thousands of Kansas school children.”

That has been interpreted as a threat that the court could effectively shut down the public school system by blocking the spending of any money under an unconstitutional formula, thus forcing lawmakers back into a special session this summer.

That’s something that no legislator wants, especially those who face primary battles for re-election this year. Primary elections will take place Tuesday, Aug. 7.

Still, few are willing to offer odds on the chances that the court will be satisfied with the bill lawmakers passed this year, a bill that has been described as phasing in a $522 million increase in annual funding over five years.

“I don’t think they’re very good,” House Democratic leader Jim Ward, of Wichita, said in a phone interview.

Rep. Melissa Rooker, R-Fairway, who serves on one of the committees that crafted the plan, said she was only slightly more optimistic.

“I expect them to take issue with at least part of it,’ she said in an interview at the Statehouse. “We’re closer. We’ve made progress. But I don’t think this is going to suddenly solve it. I think there will be more work to do.”

Much of what the attorneys will say on Tuesday has already been spelled out in written briefs they’ve filed with the court. And one of the issues they disagree about most is exactly how much money the Legislature actually added in school funding.

The state, in its brief, argues that when this year’s school funding bill is combined with last year’s increase and another bill passed this year dealing with local option budgets, Kansas will be providing more than $1 billion a year in new funding for schools compared with the 2016-2017 school year.

That’s more than enough, the state argues, to satisfy the requirement for adequate funding.

Local option budgets are the additional money districts can raise through local property taxes to bring in additional money, above and beyond what they receive from the state.

“The state did not increase funding by $1 billion,” attorneys for the plaintiff districts responded. They argue that only $368 million can be attributed to the two bills passed this year, while a little more than $485 million is attributable to the bill lawmakers passed last year, which they note the court determined was inadequate.

The plaintiffs also argue that the state is claiming credit for increased state payments into the Kansas Public Employees Retirement System, or KPERS, which the court has previously said is not money that school districts have available to them to pay for day-to-day operations.

Another point of contention concerns whether the funding lawmakers provided meets the court’s requirement that it be “reasonably calculated to have all Kansas public education students meet or exceed” certain educational outcomes.

At issue there is a cost analysis that lawmakers received in March from consultants who said it would take between $1.8 billion and $2.1 billion to bring all or most students up to the level that the Kansas State Board of Education has established for being at grade level, or on track toward being ready for college by the time students graduate from high school.

Plaintiffs in the case argue that the funding bills that lawmakers passed don’t come close to meeting that mark.

The state, on the other hand, uses a combination of arguments. It says that the bill is partially based on the funding model that the consultants recommended. But it also argues that lawmakers opted for a “safe harbor” funding plan, going back to the 2008-2009 levels of funding, which the court previously said was constitutional, and adjusting that for inflation.

The two sides also differ on the question of whether the funding formula is equitable. One provision in particular requires districts to spend a certain percentage of the local option budget money on programs or services that target students who are “at risk” of failing or dropping out.

Plaintiffs argue that provision puts more restrictions on districts with large numbers of at-risk students, while districts with wealthier populations will have more latitude to spend those funds however they want.

If lawmakers are forced back into special session, the political consequences could be far-reaching. Some people expect conservatives in the Legislature will push again for a constitutional amendment taking away the court’s authority to review challenges to funding adequacy, arguing that decision should be solely up to the Legislature.

One such amendment was introduced this year in the Legislature, but it was never acted upon.

“Oh, I think you’ll see a lot of noise about that,” Ward said. “I think there’ll be a high volume of political rhetoric. But at the end of the day, they don’t have 27 and 84,” referring to the number of votes needed in the Senate and House respectively to pass a constitutional amendment.

The state, in its brief, even prepared for the possibility that the court could find the latest plan inadequate. If that happens, the state has asked the court to accept the first year of the plan and let the Legislature address the court’s remaining concerns in the 2019 session.


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