Defending the indefensible – Supreme Court holds oral arguments on new education funding bill

David DorseyEducation

At the heart of the latest school finance proceedings earlier this week is that the justices will decide whether SB 19, the new school finance scheme, passes constitutional muster regarding adequacy of education funding.  The purpose of the nearly three-hour hearing, which can be viewed here – I watched it all so you would only have to if you have trouble falling asleep – was to allow the attorneys for both the state (Stephen McAllister and Jeff King) and the Gannon plaintiffs (Alan Rupe) to summarize their cases. But in fact the attorneys spent most of the time answering the justices’ queries.

After watching attentively and taking copious notes during the proceeding, not only have I no idea what the justices are going to ultimately decide, I have no clue how they are going to base whatever that judgment turns out to be. That is because each time the Court holds oral arguments – this is the fifth time in less than four years – they come at the constitutional issue from another angle. This time it was no different.

But first, here’s a brief summary of how we got here and why it’s led me to reach this conclusion.

Back in 2014, when the Court made the first ruling in Gannon (Gannon I), they claimed that constitutional adequacy would be satisfied when the finance formula was “reasonably calculated” to have Kansas students meet Rose standards. It was a pivot from the Montoy decisions of the early 2000s, in which the Court, in essence, said it was the volume of money that determined adequacy. In other words with Gannon, the Court shifted from an inputs-based determinant to an outcomes-based determinant. (Read here for more on KPI’s analysis of the 2014 decision.) The Legislature responded by passing block grant education funding in 2015 with the promise of formulating a new long-term finance law. In 2016, a transformative bill, HB 2741 was introduced – one that was radically different from its 1992 predecessor. No need to get into the details here, but suffice it to say, politics being what they were in the heated 2016 election cycle, the bill died without a hearing.

A vastly different looking Legislature was seated in January 2017 and in early March the Court found (Gannon IV), to no one’s surprise, that the block grant funding system was inadequate. The justices did not specify a dollar amount remedy. Instead, Gannon IV put the spotlight on the so-called 25% of Kansas students who were not performing to acceptable levels.  Although no hard, definitive evidence was presented, all parties seemingly agreed on this 25% statistic during oral arguments last September.

Was more money needed? Was it an implementation problem? The Court at one point during the Gannon-ball Express said there is “literally hundreds of ways” to craft an acceptable formula. The new Legislature, one much less open to economic and education freedom and more disposed to just ‘tax and spend more,’ thought the way to satisfy the Court was to maximize the amount of money they could “afford” given the issue of raising taxes with which they were concurrently grappling – once again politics being what they are.

Boiling it down to its simplest terms, the Legislature wanted to give the schools as much money as possible without having to raise taxes to a level that they believed to be political suicide.

Governor Brownback ultimately signed into law SB 19, an increase of funding in the neighborhood of $195 million in 2017-2018 with another $100 million or so kicking in the following year.

Although KPI has shown here and here that SB 19 is a bad law for students on its face, the new law is indefensible to the Court for another reason altogether. Simply put, how can the state possibly show SB 19 is reasonably calculated to meet Rose standards when there is no output data against which to judge? That point was made clear by Solicitor McAllister. Given that, what was there to talk about? What else – money. Justice Biles wasted no time in challenging SB 19 on a funding basis, criticizing SB 19 because the new version of base state aid per pupil is still lower than it was during the high point in the pre-recession years.  There were a number of money-based challenges among the justices, all pointing to essentially the same thing and in every case, engaging in mind-numbing circular logic. Their return to an obsession with money is yet another pivot from a previous Gannon ruling in which they claimed that “total funding is not the touchstone of adequacy.”

It is also worth bearing in mind – the Rose standards have never been defined by legislative or State Board of Education action! This fact was also echoed by Mr. King to the Senate Education Committee while the bill was being debated.

The new wrinkle in this go-around is that the Court took issue with the successful schools model being the framework for SB 19. This is an about-face from the Montoy decisions, in which the Court had no problem with that model. The successful schools approach, one in which cost figures are inferred from spending by schools determined to be successful in terms of state standards, was employed by Augenblick & Myers in their 2001 Kansas education cost study. The Court relied heavily on that report in deciding the Legislature should pony up an additional $853 million annually a little over a decade ago.  Justice Luckert, to her own surprise, even quoted Eric Hanushek, who testified against the successful schools model during the Montoy case. Now they don’t like it. Go figure.

For the plaintiffs, attorney Alan Rupe provided the same old just-give-us-more-money song and dance. Rupe defended the State Board of Education’s request for an additional $893 million dollars claiming that was the amount the taxpayers of Kansas should be forced to pay. He claimed that since the State Board is the “expert” in Kansas education an $893 million request is, by default, “reasonably calculated.” As King responded to the Court and KPI published in this blog a viewing of this video shows the way the State Board came to that $893 million figure is anything but “reasonably calculated.” Never mind that the Kansas constitution clearly establishes the legislature as the source of education funding…regardless of judicial desire to appoint themselves or the State Board as “expert.” Even SB 19’s ultimate increase would be millions less if the Legislature had the courage to fix a math error that was used in the calculation.

And so it goes. Chief Justice Nuss said the Court will decide shortly. What will they decide? Who knows, although it seems unlikely the Court will accept SB 19 on its face as the answer. Will they give the new law a go and retain some jurisdiction – which both parties said would be acceptable – revisiting it after a period of time? Will they remand it to the district court for more “fact finding,” as Justice Biles suggested? Will they find it unconstitutional and demand the Legislature have a special session to fix the problem?

All I know for sure is that we’re not done. After the Court decides on the current appeal – Gannon V – surely more Roman numerals will follow. This case has more sequels than the Planet of the Apes movie franchise. And although everyone seems to agree that it is time for this litigation carousel to end, it seems no one can find the pull-lever to stop it.

The following statement to the Court from Solicitor McAllister puts it all in perspective. After defending the provisions of SB 19 he said:

If the court determines it (SB 19) is not reasonably calculated, then it might be helpful to know what would be a model that is reasonably calculated.   

Wouldn’t it indeed. Or, at least have them follow their previous recognition that there are “literally hundreds of ways” to fund schools.

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