TOPEKA - A few hours before his State of the State address Wednesday, Gov. Sam Brownback addressed a gathering of school superintendents in an effort to find some kind of common ground, or at least mutual respect.
At the same time, though, he acknowledged that he has a different view than most of the education community of what has happened to school funding in the three years he's been in office.
"I've been saying every year that I've been in office, we've put more money in K-12. And we have," Brownback told the Council of Superintendents. "Your experience has been, 'I've gotten less money,' which is true."
The main difference, he said, concerns how people count money put into KPERS - the Kansas Public Employees Retirement System, which funds pensions for state, municipal and school district employees.
Basically, he said, the Legislature and his administration were putting more money into KPERS at the same time the federal government was phasing out the stimulus money it had been providing states to cushion them from the impact of the Great Recession.
"And you're saying – and I'm quoting one of you – 'Well, that doesn't put diesel into the bus tank'," Brownback said. "I understand."
But he offered no apologies for that, saying it was important to shore up KPERS because of its massive unfunded liability.
"Ultimately, where state and local governments have really gotten hurt is they don't take care of their pension systems. This is Detroit's problem," he said, referring to the Motor City, which recently declared bankruptcy. "You've gotta fund your pensions."
He also offered no apologies for the fact that, as the federal government phased out the federal relief it had been getting from the federal government, he and the Legislature chose not to replace that money with state revenues, which had begun to recover by that point, and instead to pass a massive tax cut.
"Now, other places went different ways on this formula," he told the superintendents. "I'm saying that basically, on the long term, we've got to get growth happening in Kansas again. And if we're based on growth, we can fund things. If we're based on raising taxes, or if we're based on the same declining overall strength, we're going to have great trouble doing this over a long period of time, but your transition is hard."
Before the recession began in 2008, base state aid per pupil was $4,400. By the time Brownback took office, it had fallen to $3,937. In the first full year of the Brownback administration, it was lowered $3,780. It is currently set at $3,838.
But Brownback did offer an olive branch, of sorts, saying there needs to be more communication between the K-12 education community, and less litigation.
"My plea with you is, honestly, to have a lot more communication, and that it be a lot more specific," he said. "Maybe start out pretty general, maybe getting to know each other's names. … We just have not had enough communications in the system, I think, in particular between K-12 and the Legislature."
The meeting was attended by what appeared to be most of the state's 286 superintendents. They listened politely, and quietly, as Brownback spoke for about 20 minutes. During a brief question-and-answer session that followed, a few thanked the governor for his career and technical education initiative, but none tried to engage him directly on the school finance issue.
That question is now pending before the Kansas Supreme Court in a lawsuit that seeks to restore all of the money cut since the start of the recession — more than $500 million a year. If that should happen, the question then will become whether the Republican-dominated Legislature will comply with the order, or defy the Supreme Court.
Another headline for this post could have been, "Who the heck is Luke Gannon?" Because that, surprising as it was to many people in the Supreme Court chambers yesterday, turned out to be one of the more important questions.
There's a basic principle of law that says you can't just walk into court and start suing people over things you think they did wrong. You have to have "standing" to sue. You have to show that you have a direct interest in the issue involved, or that you have personally been injured by the other person's action.
For the record, Luke Gannon is the first of many named individuals who, along with four school districts, are the named plaintiffs in the case of Gannon vs. Kansas. But as Solicitor General Stephen McAllister pointed out, there is nothing in the million-plus page record of the case to show who any of those people actually are, and no evidence to suggest that they personally suffered any injury that was caused by the state's alleged underfunding of public schools.
Furthermore, McAllister argued that the school districts themselves lack standing to sue as well. The entire case, he said, rests on the plaintiffs' claim that underfunding schools has deprived children of their constitutional right to receive an education. But that right belongs to the students, McAllister said, not the school districts, and the districts do not have a right to sue on behalf of their students.
It's a longstanding principle of law that the plaintiffs have the burden to prove they have standing at every step in the case — at trial, and on appeal. Questions about standing can be raised at any point along the way, even by the court itself. And if the plaintiffs lose that argument, it's "game over."
In the decades-long history of school finance litigation in Kansas, McAllister said, this is an issue the courts have never addressed. And if the plaintiffs in this case can't prove they have standing, then there's no reason to even argue anything else.
If all you did was listen or watch the oral arguments Tuesday, you might walk away thinking the state might have landed a knockout punch. The justices seemed pretty impressed with the argument, and plaintiffs' attorney Alan Rupe didn't appear to handle the questions very well.
But in their written briefs, the plaintiffs laid out a more detailed response. First, they acknowledged that the issue has never been raised before, raising the question: Why not? Why is it that in all the cases dating back to 1972, not a single judge anywhere in Kansas has ever considered this a problem?
Second, with regard to school districts having standing, they argued that the state itself, through acts of the Legislature, has implicitly admitted that districts have standing.
Specifically, they refer to a statute the Legislature passed in reaction to the previous case, Montoy vs. Kansas. It specifically prohibits school districts from spending money out of their general fund — i.e., state money — to pay the cost of suing the state over school finance, although they may use their own Local Option Budget money to do so.
The very enactment of that statute, the plaintiffs said, proves that the state itself has admitted school districts have standing to sue. Why else would lawmakers feel a need to prevent them from using state money to do so, while allowing them to use their own local money?
That argument, however, hinges on the presumption that the Kansas Legislature always knows exactly what it's doing, and never passes a law that turns out to be unnecessary or irrelevant - an assumption that many would dismiss out of hand.
More than a few court observers have speculated that a ruling in favor of the plaintiffs, ordering the Legislature to add hundreds of millions of dollars to the school finance formula, could lead to a constitutional showdown with the Legislature that the court, this time, may not win.
If that's the case, and there's no guaranty that it is, the question of standing could give them a face-saving way out of this case, and out of the whole business of adjudicating school finance issues.
Lawyers in the pending Kansas school finance case Gannon vs. Kansas may be testing the limits of their own vocabulary — not to mention everyone else's — in making their final written arguments to the Kansas Supreme Court.
As you may recall, the case turns on whether the Legislature has violated the Kansas Constitution's requirement to make "suitable provision" for school finance. Earlier this year, a special three-judge panel ruled that current funding is unconstitutionally low and ordered the legislature to increase it. The Supreme Court, which upheld a similar ruling in 2005, will now review the question.
That case is set for oral argument next Tuesday. In the days leading up to the showdown, several amici curiae, or "friends of the court" have filed briefs, prompting reply briefs by attorneys for the actual parties.
In one response brief, attorneys for the state actually reached back into Greek mythology to illustrate their point, with a little help from the Nebraska Supreme Court, which first used the phrase.
Arguing that the court should not engage in the business of trying to run public schools or make policy decisions about how much money schools should get, the state quoted the Nebraska court, which ruled on a similar question in 2007:
"[The] landscape is littered with courts that have been bogged down in the legal quicksand of continuous litigation and challenges to their states' school funding systems. Unlike those courts, we refuse to wade into that Stygian swamp."
There is no indication in the brief to suggest who wrote it. There is little doubt, however, that whoever wrote it used that swampy quote — out of the nearly infinite number of quotes they could have used — because it perfectly sums up the utter contempt that the state's lawyers have for the plaintiffs' case.
In fact, throughout their response, the state's attorneys don't even really refer to the plaintiffs' case. They call it a "case" — in quotation marks, suggesting they really don't think it deserves to be called one.
Although less prosaic in their brief, the plaintiffs didn't show any greater level of respect in replying to the amicus brief by former Kansas State Board of Education member Walt Chappell, the only outside party to intervene in support of the state's position.
Chappell now is the president of his own company, Educational Management Consultants. In his spare time, he's been organizing parades of people to come before the current state board and speak out against the new English and math standards known as Common Core.
Chappell argued in his brief that schools have plenty of money, and they simply need to be more efficient with it. He suggested saving half a billion dollars by consolidating school districts. He also suggested requiring teachers to work longer hours and changing the definition of "at-risk" students to decouple that designation from poverty status.
In response, the plaintiffs said Chappell had actually summed up the state's own position pretty well, and called his ideas "a self-contained demonstration of the completely reality-free school funding decision-making that would result" if this court accepts the state's arguments.
That's just a sampling of the arguments the lawyers have been making in writing. On Tuesday, they'll get to argue verbally in front of seven justices, and each other.
The court has set aside 60 minutes for oral arguments beginning at 9 a.m. Tuesday.
The Kansas Supreme Court today granted two requests by outside parties to file amicus curiae, or "friend of the court," briefs in the pending school finance suit.
Without comment, and over the objection of attorneys defending the state of Kansas, the Court gave permission to the Education Law Center, a New Jersey-based organization that advocates for students' rights and school funding.
It also granted permission to Walt Chappell, a former State Board of Education member who now runs a consulting business, Education Management Consulting.
In recent months, Chappell has been instrumental in organizing groups of people to come to state board meetings and speak out against the Common Core standards for reading and math.
Chappell was elected as a Democrat in 2008, but later switched parties and became a Republican. He was soundly defeated for reelection in the 2012 GOP primary by current board member Kathy Busch.
A side note about the school finance case that has probably gone under-reported is the fact that Justice Carol Beier has recused herself from the case.
According to Court records, Beier announced her recusal on Jan. 11, the day the notice of appeal was filed. The Court announced it publicly in March at the same time it ordered the state and plaintiffs to try to mediate the dispute - a mediation effort that was ultimately unsuccessful.
As is common with recusals, Beier did not offer a public reason for stepping aside.
That could turn out to be important later on. In the last school finance case in 2005, Beier wrote a concurring opinion, arguing that the Court should have gone further than it did. She argued the Court should have declared education to be a "fundamental right" under Kansas law, and the 14th amendment to the U.S. Constitution.
In legal parlance, that normally means that courts must apply "strict scrutiny" to any governmental action that interferes with a fundamental right. The burden then shifts to the government to show that its actions are necessary to achieve a compelling state interest, and that the actions are narrowly tailored to achieve those interests.
Beier said the Court could still apply the lower "rational basis" test in school finance disputes, as long as the inequities in the system are not so "egregious that they actually or functionally deny the fundamental right to education to a segment of otherwise similarly situated students."
Two other justices - Robert Davis and Marla Luckert - joined her in that opinion. That's one vote short of a majority on the seven-justice Kansas Supreme Court, but with Beier recusing herself, and other personnel changes on the Court, it's hard to predict how that will shake out this time.
Since 2005, four of the seven seats on the bench have changed hands, including Davis'. All four were appointed by Democratic Govs. Kathleen Sebelius and Mark Parkinson.