Politics & Government

After nine years, could Kansas school funding lawsuit be over? Justices will decide

Justices on the Kansas Supreme Court appear ready to wrap up a legal fight over school funding that lawmakers have been trying to end for nearly a decade.

The high court heard arguments Thursday over whether public schools in Kansas are now constitutionally funded after the Legislature approved a $90 million increase in April. The boost is the latest in a series of moves aimed at complying with court orders to appropriate more money for schools.

The plaintiff districts – Wichita, Kansas City, Dodge City and Hutchinson – argued the newest finance plan falls about $270 million short of complying with the constitutional requirement for the state to provide “suitable” funding for public education.

The justices gave few indications of how they plan to rule, but questioned an attorney for the plaintiff districts more aggressively than in the past.

“I’ve been on this court 14 years and 11 of those 14 years there’s been ongoing school finance litigation ... is there ever crossing the finish line in these types of cases?” Justice Eric Rosen said.

Kansas has been litigating the Gannon case for nine years. Many lawmakers are hopeful this year’s dollar increase will finally draw the case to a close after years of changes to education funding.

The Supreme Court largely signed off on a plan last year that adds $525 million a year for schools. The increase is still being phased in.

But the court faulted lawmakers for not adjusting for inflation in the plan and the $90 million approved this year is a response to that concern.

The state is leaning heavily on the argument that the school finance plan passed this year had the agreement of the Republican-controlled Legislature, Democratic Gov. Laura Kelly and the state Department of Education.

“Everyone agreed that this is what would satisfy not only the constitution, but also the best interests of the children,” said Toby Crouse, the Kansas solicitor general who argued the case on behalf of the state.

Alan Rupe, the lawyer for the school districts, said they initially supported the Legislature’s plan, but a recalculation of the benefits showed that the money provided to account for inflation was far less than they originally were led to believe.

Schools for Fair Funding, the group that has represented the districts in the Gannon case, says lawmakers should have provided an additional annual increase of $90 million for four years.

“You don’t figure the inflation on a loaf of bread by taking one slice and figure inflation on one slice. It’s on the whole loaf,” Rupe said.

Under Schools for Fair Funding’s vision, Kansas schools should eventually receive roughly $363 million more a year to make up for inflation. Lawmakers and Kelly say the $90 million a year is enough.

“I think the unanimous support of the State Board of Education, the Legislature and the governor is a strong indication that we’ve satisfied” the court’s direction, Crouse said.

Rupe urged the court to hold lawmakers to a target they set to spend at least $3.7 billion in annual spending on education.

But the justices appeared to leave open the possibility that the funding could be considered constitutional, even if it doesn’t fully meet targets from previous rulings by the court.

“You’re equating the target with the constitution and I don’t think you can do that,” Justice Dan Biles told Rupe at one point.

Even if the Supreme Court sides with the Legislature, it could retain control of the lawsuit for several years to ensure lawmakers follow through on their funding plan.

Biles noted that after reaching an agreement on constitutionally adequate funding in a case called the Montoy decision in 2006, the Legislature reneged and cut funding, prompting the current Gannon case.

Biles was a lawyer for the state Board of Education before he became a justice.

“Thirteen or 14 or 15 years ago I stood in exactly the same spot you’re standing right now, probably on the same carpet, and made the same argument, and the Legislature reneged on the deal,” Biles told Crouse.

He said he was concerned that freed of court oversight, the Legislature could cut funding again or even try return to former Gov. Sam Brownback’s policy of using “block grants” to fund schools, which the court ruled unconstitutional

Biles said if the court gives up jurisdiction and the Legislature breaks its promises, it would require the plaintiffs to completely restart the years-long process of trying a case in district court and then getting it back up to Supreme Court review.

“That seems to be wrong,” Biles said.

Following the arguments, Attorney General Derek Schmidt acknowledged that in the Legislature, “sometimes promises made are not promises kept.” But that needs to be balanced against the drawbacks of never-ending litigation, he said.

“As long as the plaintiffs (school districts), whenever disgruntled, can run back to the court and ask for assistance, it chills the legislative process,” Schmidt said. “It stifles innovation and it keeps us stuck in a debate about school finance litigation instead of how best to serve Kansas kids going forward.”

The Supreme Court is expected to issue a ruling by the end of June.

Whatever the justices decide, their opinion isn’t expected to immediately affect schools. Rupe has asked that even if the court sides with the districts, it give lawmakers another year to make changes, eliminating the need for a special session in the coming months.

Goddard school board member Kevin McWhorter watched the court proceedings and said “I think both sides want to get it wrapped up.”

McWhorter, who has been active in Schools for Fair Funding, said he thinks the state needs to add money to better account for inflation going forward.

Dave Trabert of the conservative Kansas Policy Institute said the Supreme Court itself had said the state doesn’t have to have a particular level of funding.

“It instead says the state must have a system of funding, like a formula, and it does,” Trabert said.

But in the end, “none of this is going to have any benefit for kids because just spending more doesn’t change student achievement,” he said. “Money is not a proxy for outcomes.”

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