Politics & Government

Kansas school funding still unconstitutionally inequitable

Alan Rupe, an attorney representing public school districts and students in Kansas, is questioned by the media after making oral arguments on school finance to the Kansas Supreme Court on May 10 in Topeka.
Alan Rupe, an attorney representing public school districts and students in Kansas, is questioned by the media after making oral arguments on school finance to the Kansas Supreme Court on May 10 in Topeka. Associated Press

The Legislature’s funding of schools remains constitutionally inequitable, the Kansas Supreme Court ruled late Friday, reaffirming its June 30 deadline for lawmakers to fix the problem or have the state’s school system shut down.

In short, disparities (in funding) among the districts remain inequitable and unconstitutional.

Kansas Supreme Court

“In short, disparities (in funding) among the districts remain inequitable and unconstitutional,” the majority court opinion said.

The Legislature will have a chance to address the court finding when it meets Wednesday for its annual “sine die” session, ordinarily the ceremonial ending of the legislative year. It was not clear late Friday whether lawmakers would take up the contentious issue then.

“I will be talking with my colleagues in the Senate about the best course forward dealing with the Court’s ruling – a ruling which tramples the checks and balances enshrined in the state constitution,” Senate President Susan Wagle, R-Wichita, said in a statement.

Gov. Sam Brownback, whose “block grant” school finance plan is at the heart of the dispute, also issued a statement criticizing the court shortly after the decision was handed down about 5 p.m. Friday.

The court is engaging in political brinksmanship with this ruling, and the cost will be borne by our children.

Gov. Sam Brownback

“The court is engaging in political brinksmanship with this ruling, and the cost will be borne by our children,” Brownback wrote. “We will carefully consider the implications of the court’s ruling and its disregard for the proper role of the Kansas Legislature.”

House Minority Leader Tom Burroughs weighed in with a statement of his own, saying Brownback and the conservative Republican-dominated Legislature have reached the end of the line on shortchanging schools.

“For years, Gov. Brownback and his Republican allies in the Legislature have refused to adequately fund our schools,” Burroughs wrote. “Today, the Supreme Court finally said enough is enough. Kansas school children deserve better. The Legislature should take whatever action is necessary to keep our schools open, something Democrats have been calling for all along.”

Justices presented the decision as the Legislature’s one last chance to fix inequitable funding, quoting from a school finance bill passed this year, House Bill 2655, that lawmakers had hoped would clear court review.

“We acknowledge the Legislature’s intent, as recently expressed in its preamble to HB 2655: ‘The Legislature is committed to avoiding any disruption to public education and desires to meet its obligation,’” the majority opinion said.

The justices kept in place the June 30 deadline.

“This will give the Legislature yet another opportunity to treat Kansas students fairly and (in the words of HB 2655) ‘to craft a constitutionally suitable solution and minimize the threat of disruptions in funding for education.’ 

Block-grant plan

The issue at hand was whether the Legislature had satisfied an earlier order to fix inequity in funding between rich and poor school districts.

A coalition of districts, including Wichita and Hutchinson, had sued the state, contending that Brownback’s block grant funding for schools was inadequate overall and unfair to poor and growing districts.

The block grants essentially froze school funding at the level of the 2013-14 school year, to give the Legislature two years to rewrite the formula for paying for public education. A special three-judge school panel and the Supreme Court ruled the block grant plan unconstitutional.

In their ruling, justices said HB 2655 didn’t solve the problem of inequitable funding and actually may have made it worse.

The reason was that it contained a “hold harmless” provision that guaranteed the bill wouldn’t reduce local option budget funding for any school district, although the vast majority wouldn’t get any more. The local option budget, or LOB, is money that voters can elect to tax themselves to provide extra funding for their own schools.

Inequity creeps in because property-rich districts can easily raise large sums of money with relatively small increases in their tax rate. Not so for the poor districts, where it takes a large jump in property tax rates to generate comparable income for the schools.

The justices gave short shrift to the state’s claim that it had to have the hold harmless provision to pass HB 2655.

“The political necessities of the Legislature are … irrelevant to our review,” the court’s majority opinion said. “The constitution of the people of Kansas does not change its requirements based on legislators’ support, or nonsupport, of proposed legislation.”

The court had earlier offered the Legislature a “safe harbor” solution that would pass court muster by restoring about $38 million in spending to equalize funding between rich and poor districts.

Less than 1 percent

Attorney General Derek Schmidt, whose office represented the state in the case, said that’s less than 1 percent of annual school funding and not enough to justify closing the schools.

All agree that Kansas schools, teachers, parents and kids need certainty that schools will open next fall, but today’s decision undermines that objective.

Attorney General Derek Schmidt

“All agree that Kansas schools, teachers, parents and kids need certainty that schools will open next fall, but today’s decision undermines that objective,” Schmidt said in a statement. “There is no good reason a Court order about less than 1 percent of the education budget should close the schools.”

Lawyers for school districts and the state of Kansas argued Tuesday, May 10, 2016, over whether the Legislature has complied with court orders to fix inequity in funding between rich and poor school districts, and if not, how to remedy the situati

In oral arguments before the Supreme Court on May 10, Solicitor General Stephen McAllister argued that the Legislature had met the equity burden with the tweaks it made in the funding system this year.

Faced with open skepticism from the bench, McAllister proposed a fall-back position of severing the unconstitutional provisions from the rest of the school finance law and allowing schools to open with partial funding – about $1 billion short – while the Legislature grapples with the equity issue again next year.

Friday’s court opinion said that would not be acceptable and hurled the lawmakers’ own words back at them:

“Among other things, severance and the immediate loss of $1 billion of school funding would seriously undermine the legislature’s ‘desire to meet its obligation’ under Article 6 of the constitution,” the ruling said.

“And this loss of 25% of all educational funds until such time as the Legislature might restore them contradicts the legislative intent to (1) ‘avoid any disruption to public education;’ to (2) ‘enhance predictability and [provide] certainty’ in planning school district budgets; and to (3) ‘maximize opportunities for more funds to go to the classroom.’ 

Justice Lee Johnson filed a separate opinion partially dissenting from the majority’s ruling.

He agreed with the majority that the Legislature had failed to fix the inequities but wanted to take a more aggressive stance on the remedy.

He said he would prefer that the court order the Legislature to return to its last constitutionally acceptable funding formula, which was repealed when the Legislature passed Brownback’s block grant plan.

I fear that some (legislators) might view the closure of all public schools as a victory.

Supreme Court Justice Lee Johnson

“By allowing the Legislature to close the schools and shut off all monies to all the public schools through the simple tack of taking no action to fix the unconstitutional inequities, this court would be enabling the legislature’s dereliction of constitutional duty,” he wrote. “Moreover, I fear that some (legislators) might view the closure of all public schools as a victory.”

“In my view, maintaining the integrity of our state constitution and providing of the equitable educational opportunities for our children are too important for this court to be constrained by any concern that the Legislature will be offended that we told it how to do its job,” Johnson wrote. “After all, this court has its own job to do, as well.”

‘Edge of the cliff’

John Robb, a lawyer representing the school districts, also blamed the Legislature for not following earlier court orders to fix the inequities but said he expects lawmakers to act.

“I’m an optimistic person. It’s not too late to step back from the cliff,” Robb said. “But the Kansas Legislature has stepped up to the edge of the cliff, and now it’s up to them to put things right. They know what they need to do. I have faith in people and faith in the Legislature that they’re going to do right by our kids, because they’re their kids, too.”

House Speaker Ray Merrick, R-Stilwell, blasted the court in a statement responding to the decision.

“The court has yet again demonstrated it is the most political body in the state of Kansas,” Merrick’s statement said. “Dumping the ruling at 5 p.m. the day before a long weekend and holding children hostage.”

Apparently anticipating that criticism, the court blamed the Legislature for the problem in its ruling.

“The inability of Kansas schools to operate would not be because this court would have ordered them closed,” the opinion said. “Rather, it would be because this court would have performed its sworn duty to the people of Kansas under their constitution to review the legislature’s enactments and to ensure the legislature’s compliance with its own duty under Article 6” of the state constitution.

Merrick said the Legislature “acted in good faith to equalize the record amounts of money going to schools” and fired a political shot of his own, referring to the fact that five of the seven justices will be up for retention on the Nov. 2 general election ballot.

“Frankly, I find their actions disgraceful and hope Kansas voters will remember this in November when deciding whether these justices should be retained,” Merrick said.

Wichita schools

Wichita school officials hailed the ruling in their favor.

Board member Lynn Rogers, who is running for a state Senate seat, said he wasn’t surprised by the ruling but was not optimistic that lawmakers will be able to craft a fix by June 30.

“The state understands how dangerous it is to close the schools. It’s extremely expensive to shut down,” he said. “Economically, this could be a huge bust for the state of Kansas, and I hate what it does to our reputation as a state.”

Betty Arnold, president of the Wichita school board, said she’s dreading the June 30 deadline.

“I’m not so sure our legislators are committed enough to keep schools open, and that’s scary for me,” she said. “Look at how many times they’ve been ordered to do so, and there has not been a real effort to do anything other than a little bit of fancy footwork.”

Rep. Steve Huebert, R-Valley Center, said he was disappointed in the ruling but added he thinks the chances of a statewide school shutdown are “very slim.”

“That would really be a nuclear option,” said Huebert, a former Valley Center school board member who now sits on the House Education Budget Committee. “I don’t believe the courts are going to cross that line in the sand that they have drawn – not us, them. I honestly do not believe it’s going to happen.”

Wichita school district’s chief financial officer Jim Freeman briefed media on Tuesday, reviewing options presented on Monday night. USD 259 faces cost increases of up to $30 million next school year and no additional state funding. (March 22, 201

Wichita public schools superintendent John Allison comments on Supreme Court ruling that Kansas school funding is inequitable. (Feb. 11, 2016/Mike Hutmacher/The Wichita Eagle.)

Attorney General Derek Schmidt talks with reporters after the Kansas Supreme Court grilled his deputies on school funding. (Nov. 6, 2015)

Alan Rupe, attorney for Schools For Funding, talks with reporters after oral arguments before the Kansas Supreme Court. (Video by Bryan Lowry)

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