The Kansas legislature has reached what they term first adjournment, a fancy term for a three-week recess. Lawmakers will take a deep breath and reconvene in early May, faced with a full-plated agenda that will feature approving a new K-12 education finance law attempting to satisfy the Supreme Court’s decree of a having in place a constitutionally adequate funding mechanism by a Court imposed June 30 deadline. Oh, yes, and they’ll have to do that while addressing the budget for both the current and upcoming fiscal year AND passing a tax plan to fund the whole thing.
Hopefully during their hiatus legislators will reread, or maybe just read for the first time, the Court’s most recent Gannon decision regarding what will constitute constitutionality. Here are two passages in the Court’s opinion of particular interest when it comes to deciding on a new public finance law.
- We have previously held that “total spending is not the touchstone of adequacy.”…So we reiterate that the legislature should focus instead on creating a public education financing system for grades K-12 that—through structure and implementation—is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose.
- the State (is) failing to provide approximately one-fourth of all its public school K-12 students with the basic skills of both reading and math, but that it is also leaving behind significant groups of harder-to-educate students.
In simpler terms, the Court is saying a) it’s not about adding more money and b) simply resurrecting the “old formula” – known as the School District Finance and Quality Performance Act (SDFQPA) passed in 1992 and the finance law on the books until replaced by the block grant mechanism in 2015 – would not pass constitutional muster. Low achievement as described by the Court was rampant under the old formula and therefore not “reasonably calculated.”
Somehow, the Legislature (at least the House) thinks otherwise. The House K-12 Education Budget Committee has been working HB 2410 for the past few weeks. Several times throughout the process, committee chairman Larry Campbell has stressed his desire for HB 2410 to be “the bill” to become the new education finance law. What started as a serious effort to base funding on a model patterned after effective schools and at least an attempt to make a connection between spending and accountability, has devolved into an amendment by amendment dismantling, morphing HB 2410 back to the “old formula.” The House started out on the right track but their work seems to be a bit, um, off of the original path.
How has this happened? A nine-member voting majority has coalesced in the 17-member committee. This block has assured passage of amendment after amendment to strike provisions from the original bill and replace them with sections similar to those found in SDFQPA. But they are not alone in believing it’s just about more money. The entire committee membership has become enamored with bulking up education dollars, falsely believing that it is indeed total spending that will satisfy the Court. Despite the fact that the Court did not tie “reasonably calculated” to some magic dollar amount, that is how the committee has interpreted it. Taking this idea to another level, the Legislature has hired attorney and former senator Jeff King to determine if HB 2410, as amended, has the “right number” to satisfy the court. King is to report back to the committee with a thumbs up or down when the Legislature reconvenes in early May.
Committee member Melissa Rooker (R-Fairway), an outspoken advocate of going back to 1992 formula and frequent amender to HB 2410 has somehow made the connection of the Court’s latest decision and the State Board of Education’s new Kansans Can vision. In the April 5 meeting she said “I don’t know if this is enough money or not” to comply with the board’s new vision. The legislative charge is to answer the Court and provide for the educational needs of Kansas kids, not write a blank check to Kansas’ fourth branch of government…the State Board of Education. How did Kansans Can become a goal of the new finance law?
Frequently throughout the hearings, Chairman Campbell has reminded the committee of the looming revenue shortfall, a reminder that K-12 funding isn’t an issue in a vacuum, it’s a piece –a very large piece at that – of the entire pie that is state government funding. As amended, HB 2410 would add an additional $150 million annually for the next five years, making the final price tag of the new formula $750 million per year.
The process of tying all these pieces together, spending and taxation is, was, and always will be, a political process. That’s why the Court erred during the oral argument phase of the Gannon trail last September. Steven McAllister, the attorney for the state, argued the issue of adequacy of funding public education should be considered non-justiciable – meaning it’s an issue in which the Court cannot rule. Unfortunately, the Court did not agree. The argument that funding public education is the Legislature’s job and not the Court’s to decide has recent precedent. Just last year the Texas Supreme Court in Morath decided just that – funding is a political process that is part of the bigger picture of funding state government, and not one for the courts to decide.
Is it possible the Court could accept a return to a bloated version of SDFQPA? Who knows? The 
Court’s meddling in legislative business has put separation of powers through the looking glass for over a decade now. It doesn’t seem plausible that the Court would accept blowing the dust off the old law, but it also doesn’t seem plausible the Court would order $853 million as it did in Montoy or threaten to close schools, as it did last year.
What would be almost certain if HB 2410 passes as amended to become SDFQPA-2.0 is this: the lawsuit carousel that has become a fixture in the carnival that is Kansas public education funding would continue its inexorable journey to nowhere.
Let’s hope Mr. King helps our elected officials get back on the right track as to what the Court actually wrote instead of what the school’s attorneys wish for.
