Oral arguments in Gannon – a case of the misguided, misinformed and a missed opportunity

The oral argument phase of the Gannon adequacy case before the Kansas Supreme Court was a real head-scratcher.  The two-hour back-and-forth between justices and attorneys provided little confidence that the Court will finally do the right thing and dismiss the case. This examination will analyze the arguments of both attorneys and the queries and comments of the judges to show

• how the plaintiffs’ position is weak, unconvincing and misguided,
• the justices were both uninformed and misinformed when it comes to the underlying principles of the case,
• how the state missed a golden opportunity to
  • rebut the argument that the answer to poor outcomes is more money, and
  • provide evidence that the measure of outcomes relative to Rose standards is not determinable because the measure of those standards has yet to be determined.

The Misguided.

Attorney Alan Rupe argued for the Gannon plaintiffs. Let’s give him credit, he truly believes it’s a good idea to saddle the Kansas taxpayers with an extra $800 million a year to give to the schools. Also, he is spot-on in his position that Kansas students are performing at unacceptably low levels.  It’s his remedy that is fatally flawed. Rupe is misguided in his notion that there is a causal relationship between money and outcomes. He even used the word causation in his opening remarks.  A wealth of academic research, some of which are referenced in this KPI policy paper, refutes the notion that an increase in money to education causes an increase in outcomes.  Even the Kansas Association of School Boards, the biggest lobbying group for more money to public education in this state, refuses to make a causal relationship between money and outcomes.

Rupe tries to make the case that education funding is “nearly $800 million short in terms of money to public education in order to meet those Rose standards.” He erroneously supports that idea by claiming that test scores went up for a few years after Montoy funding was in place and went back down “when funding was cut.”

In the afore-mentioned KPI policy paper we provided this evidence discrediting that claim:

• NAEP scores have been essentially flat for the last 12 years, regardless of funding levels, and
• state assessment scores continued to improve after the base state aid per pupil (BSAPP) piece of the funding formula was reduced.

Rupe also is misguided when it comes to weighting students for funding purposes. He reluctantly concurred with the justices about using a weighted funding scheme to target those “one-third who are underperforming.” (More on the “one-third” later). Rupe stated “with regards to the weightings, I think they work because they allow for statewide focus on subgroups of kids.” He went on to say the weightings “would be the solution that would work in this situation.” Mr. Rupe should know better. As an attorney for Schools for Fair Funding (SFFF), a litigation initiative supported with taxpayer dollars, money that would otherwise be available to educate kids from roughly 50 Kansas school districts, he is well aware that there is no mechanism at the state level to target money to “subgroups,” as he refers to them. As KPI exposed in this research paper, hundreds of millions of dollars “targeted” to at-risk students pursuant to the Montoy decision not only failed to improve outcomes, but most of the money was never targeted to those students. Despite the Court’s directive to focus more money on at-risk students, the schools virtually ignored the Court’s wish. Because local control over spending decisions minimizes oversight, schools can spend virtually however they wish with no accountability.  Justice Biles went as far as suggesting that if targeted money is spent on all students, that could inherently be considered  unconstitutional since the educational needs of non-targeted students are already being met.

Finally, while trying to convince the Court that all sources of money should NOT be considered – federal funds and local option budgets (LOB) should be disregarded for this purpose – Rupe described LOB as “too uncertain.” He clung to that position even though Chief Justice Nuss reminded him that LOB is about a billion dollars a year. Rupe avoided the Chief Justice’s assertion through an erroneous misdirection. He argued that for some districts LOB was “not certain”, claiming the “Galena’s of the world cannot do that.” He failed to mention one little detail: state equalization made LOB a very predictable source of revenue, in excess of a billion dollars per year, as Chief Justice Nuss kept reminding him.

The misinformed.

In concept, the Supreme Court is to apply the law, not make policy. However, the justices’ comments made it clear they see their role as making policy in Gannon. In fact, if one only had an audio feed and didn’t know the setting or the principals, you would think it was a legislative committee that was discussing how much and how to spend education dollars. Taking it a step further, the justices were discussing a “remedy” of upwards of a billion dollars extra per year to public education in Kansas having little knowledge of the subject matter. The justices appear to know shockingly little about education, in terms of both funding and the present state of student performance.  And inexplicably, they don’t seem to understand the state of the Rose standards, the very barometer they identified as the basis for determining funding adequacy. It’s bad enough that the Court is comfortable in usurping the Legislature’s power of the purse, but it’s beyond the pale that they’ll do it with such a clear lack of basic knowledge of education issues.

To wit:

• Justice Lee Johnson exhibited his lack of understanding of the relationship between money and outcomes. He referred to testimony in a lower court by Kansas City (USD 500) superintendent Cynthia Lane in which she claimed improved scores at one KCK elementary was due to money from a federal grant. Justice Johnson stated, “How can you take (Dr. Lane’s) testimony and say money doesn’t matter?” He continued with, “I don’t know how you can argue that money doesn’t matter when you look at that example.” He made that claim despite the fact that the solicitor general for the state, Stephen McAllister provided evidence that the improvement at that school was a function of a new principal, different teachers and a changed learning culture.
• Justice Eric Rosen asked McAllister what the role of the Court should be if the legislature decided that “we’re going to cut spending in half or we’re going to cut it three-quarters.” McAllister tried to be deferential to such a ridiculous assertion by reassuring that would never happen, to which Justice Rosen responded, “we’ve heard a lot of wills and won’ts in this case…I’m never surprised by anything.” Perhaps Justice Rosen would be surprised to know that total money to education has and continues to increase over the course of the Gannon case.
• Justice Marla Luckert showed how little she understands the State Board of Education’s (SBOE) role in all this. She made the claim that the Legislature told the SBOE to “go out and design a curriculum to meet the (Rose) standard. The board has done so, or at least attempted to do so, and in response to that told the Legislature ‘For us to do this we need X number of dollars.’” Nothing could be farther from the truth. First of all, the SBOE does not design curriculum to meet standards. The SBOE sets the standards, the local districts decide curriculum.  Secondly, the SBOE has NOT attempted to define or measure the Rose standards. They have taken no action, and have had only one briefing that resulted in no votes being taken by the board. There is certainly no record that they have told the Legislature they need “X number of dollars” to do so. The last budget request by the SBOE in July was done in a manner of just minutes, with no basis for the request, as KPI revealed in this blog.
• Justice Dan Biles interpreted the outcome data and said, “Seems to me two-thirds (of students) are flourishing and one-third are floundering.” He suggested that the Court should “target the remedy to that one-third” because that is where the current system is unconstitutional. Justice Biles reminded the Court of the amount of local control given school districts over spending decisions, so it is naïve to think that school districts will somehow focus any new money ordered by the court on the “floundering” one-third even if directed specifically to do so. However, demanding that a local district take very specific action tied to a funding stream would be a departure from the fig leaf of “local control” and very well may bring another round of litigation from local boards who may think their authority is being undermined.

Just as important as the misinformed questions the justices asked, are the ones they failed to ask.

1. They didn’t question that targeted money pursuant to Montoy, a funding increase they effectively mandated, wasn’t targeted by the school districts to those very students who were generating the dollars. Did they not know that or did they just not want to raise that issue?
2. They never questioned the assertion that more money leads to higher outcomes. Does that mean they take that as, in legal terms, a statement of fact?
3. They failed to question Rupe on the reality that outcome data has been essentially flat, regardless of funding levels. Are they not aware of the long-term trends in test scores?

The missed opportunity.

The heart of solicitor general McAllister’s arguments is that Kansas students are doing fine overall, which means, according to the state, Rose standards are being met. Consequently, there is no need for the Court to order more money to fund education. This line of reasoning, which was really nothing more than a Rupe counterargument, represents a huge missed opportunity to make a much stronger case against further judicial interference in the legislative process by taking the argument in a much different direction.

Ironically, the most significant opportunity missed was NOT agreeing with Rupe that Kansas students are performing at unacceptably low levels. McAllister countered that by stating, “Kansas is achieving in some categories fifth or eighth or tenth in the country – that’s awfully good success.” He sees relative, not absolute outcomes, as an indicator of success. “Kansas is making excellent use of resources to do pretty well compared to the nation.” That approach is truly a double-edged sword because by making that counterargument:

• It means the state’s position is that student success is not measured at the individual level but at the aggregate level, and
• the only assertion that could follow is that more money is not needed because student performance is acceptable to the level of meeting Rose. The very nature of taking that position is a de facto acknowledgement that money and student performance are related. However in fairness, McAllister did mention on a few occasions that more money does not necessarily lead to higher outcomes.

McAllister had a golden opportunity to exploit the Rose standards as a means to dismiss the case, but failed to capitalize on the chance. All three parties fallaciously came to their own conclusions that Rose standards have been defined and measured by the State Board of Education. As stated above, Justice Luckert described an SBOE scenario of activity regarding Rose that simply did not happen. Alternatively, both attorneys made their cases vis-à-vis non-existent Rose measurements. McAllister incorrectly claimed that the Rose standard statute has lead “the State Board of Education issuing regulations all intended to…try to achieve these capacities.” And the other justices seemed to accept the fact that somewhere those measurements have been defined and developed.  That is simply not the case. The SBOE has done nothing to measure the Rose capacities, as KPI detailed here.

He also missed a chance to make a convincing case that there is no causal relationship between an increase in money to education and an increase in student performance. He could have asserted this with both data specific to Kansas and broader nationwide research studies. McAllister should have used achievement gap data both before and after the Court ordered over $800 million in the Montoy case a decade ago. The hundreds of millions of additional at-risk dollars that were allocated pursuant to the Court’s decision failed to reduce achievement gaps between the economic haves and have-nots. Furthermore, the additional money failed to budge NAEP scores from pre-Montoy funding levels. These examples alone would have:

• provided hard evidence of a lack of a causal relationship between money and performance, and
• a reminder that judicial interference in a legislative function is ill-advised.

There was exchange during the proceedings that McAllister could have pounced upon, but didn’t. During the discussion of Emerson Elementary in USD 500 as example of more money making a difference in student achievement, Chief Justice Nuss asked McAllister if he had an example of more money leading to scores being stagnant or “gotten worse.” McAllister wasn’t able to provide one. However, KPI reported a clear example of the combination of more money and lower scores rests within the same school district. Northwest Middle School in Kansas City received a larger federal grant than Emerson Elementary with the result of lower scores on state assessments, both in absolute numbers, results relative to a similar USD 500 middle school that received no federal grant, and the district as a whole. This is powerful data that directly refutes the testimony given by Dr. Lane to the lower court, testimony that was obviously given great weight by the comments of Justice Johnson as described above.

Concluding remarks.

It would be disingenuous to declare that this phase of Gannon represents a crossroads in Kansas education. Kansas education, particularly funding, isn’t really at a crossroads so much as stuck in a round-about like the one the Griswolds can’t exit in European Vacation with nearly four decades of litigation as proof. However, the proceedings before the Supreme Court in the current Gannon phase provide a clear snapshot of the tangled intersection of the relevant parties. There are the plaintiffs, who represent the never-ending litigants who keep coming back to the judicial trough, making their case that the education system is underfunded. There is the state, which is careful to simultaneously overstate the performance of education while cautioning there are some subgroups left behind who need extra attention.  Finally, there are the courts, seated with justices who seem to relish the idea of overstepping their constitutional bounds by usurping the legislature function of appropriating tax dollars. Unfortunately, it is the kids of Kansas who are trapped inside this litigation triangulation. As we learned after Montoy, hundreds of millions of additional dollars don’t make a dime’s worth of difference when it comes to student outcomes.

When, and how, will it end?

When? A cynical, but realistic outlook is that the litigation merry-go-round will continue for the foreseeable future. The Court hasn’t set a date for when it might make a “remedy.” in the Gannon case. The issue gets muddied when considering the Legislature is preparing to rewrite the school finance law next session. It’s reasonable to believe that whatever the new law looks like, litigation will soon follow. Schools will again turn to the courts for more money, especially if the Court in the Gannon case rules in their favor.

How? That’s impossible to say, but the discussion among the justices and the attorneys seemed to narrow to targeting money to the “one-third” that is not meeting the Rose standards – in their collective opinions.

As stated at the outset, the court should do the right thing and dismiss the case since Rose standards have not been defined and measured. Therefore, it is impossible to determine the adequacy of funding pursuant to those standards that the Court constitutionalized in 2014.

At one point in the proceedings, Justice Biles wondered aloud when school finance litigation is going to end. If history is a guide and the Court continues to overstep its constitutional bounds, probably not any time soon. As the 2017 Legislature begins to take shape and the members wrestle with a new education finance law, like a helicopter parent, the Court remains omnipresent. As long as the Court provides favorable remedies to the school districts across the state, as they did in Montoy a decade ago and appear poised to make a similar decision in Gannon, the incentive remains for schools to go back to the well.