More than a decade ago the Kansas Supreme Court took the unprecedented step of injecting itself into the legislative process, ordering the 
Legislature to cough up an additional $853 million per year to fund K-12 education in its landmark Montoy decision. The Legislature caved, allowing the Court to usurp the constitutional authority of the power of the purse from that elected body. That series of irresponsible decisions laid the groundwork for the Gannon case a few years later, a web in which the Legislature still finds itself. The latest “the-ball’s-in-our-court” move (pardon the pun) by the Legislature was the passage of SB 19, a new education finance law formally known as the Kansas School Equity and Enhancement Act. The law is one conceived as an appeasement in hopes the Legislature can wrest itself from the omnipresence of the Court.
Throwing to the winds my aversion to judicial prognosticating, the most likely response from the Court is they will find SB 19 somewhat acceptable, meaning they will not close schools but will maintain jurisdiction in the Gannon case, leaving the door ajar for further Court intervention. The irony in that scenario is that the Legislature’s focus on the new school finance law to satisfy the Court ensures another lawsuit from the education establishment is looming. And legislators have no one to blame but themselves.
The Court gave the Legislature an out in its last Gannon decisions. Instead of making school funding about Base State Aid dollars as they had pursuant to Montoy, the court pivoted (I believe realizing their mistake in ordering the Legislature to spend a specified dollar amount) from using money as defining a suitable education to using outcomes as a determinant. In the Court’s words, “total spending is not the touchstone for adequacy.” Alternatively, the Court has now identified the Rose standards as the basis for determining adequacy, defining a financing system as adequate when it is “reasonably calculated” to have all students meet those standards.
During the 2016 legislative session a serious attempt at adopting a new finance law was introduced in the form of HB 2741. The bill included a streamlined funding approach with integrated efficiency measures and monetary incentives for achieving student outcome growth. Unfortunately, the bill didn’t even get a hearing because House and Senate leadership deemed it too controversial in an election year.
The new Legislature that was seated in January (with roughly one-third new members) has chosen to ignore the opportunity given them by the Supreme Court. Apparently they missed the message about total spending not being the determinant of adequacy. Those on both House and Senate committees instead focused their attention on increasing the amount of money to education, under the guise of satisfying the Court. The debate centered on just how much money they could increase K-12 education given the state revenue picture – more on that later. They chose to blow the dust off the 1992 law (the one that was replaced during the 2015 session with block grant school funding) as the framework for the new one; one in which the vast majority of state support was based on a per pupil dollar amount augmented with a complex variety of weightings. The Legislature ultimately decided to return to that as a basis for state support (without calculating the numbers as required by the Court). Now known as BASE – base aid for student excellence – per pupil base aid (sans weightings) is $4,006 for 2017-18, will increase to $4,128 the following year, and be adjusted in following years using the CPI (Midwest Urban) as a multiplier. And therein lies the blueprint for the continuation of the lawsuit carousel.
During the 2017 session interim, the Legislature hired attorney Jeff King (the former Senate Majority Leader) to counsel them as to whether their new law would pass constitutional muster with the Supreme Court. In his opening presentation to the House K-12 Education Budget Committee, Mr. King told them that given the history of the Court’s oversight of education funding, whatever Court approved amounts the Legislature passed would become the new baseline. If that is true, the table has been set for the next round of litigation.
Here’s why. In the post-Gannon, pre-recession-impact year of 2008-09, base state aid per pupil peaked at $4,400. BASE, the new iteration of base state aid per pupil, is set at $4,006 for the 2017-18 school year – nearly $400 less than nine years ago. (Despite a lower base state aid, total funding to K-12 education continues to set records, estimated to be at an all-time high in 2016-17.) Even with the mandated increase in subsequent years, it will be several years until BASE is scheduled to surpass the summit it reached in 2009. And the education establishment has taken notice. Schools For Fair Funding, an ad-hoc lobbying group funded with taxpayer dollars funneled through a hodge-podge of districts throughout Kansas, is the principal legal entity for the plaintiffs in the Gannon case. They have already gone on record stating “the school finance bill (SB 19) certainly does not provide adequate funding and has other equity problems we intend to raise with the court.” Furthermore, during the debate and hearings proceedings, the current $900 million budget increase requested from the State Board of Education surfaced. Although a frivolous, irresponsible request that KPI exposed, it still serves as the Board’s official position.
The final ingredient thrown in the mix is the $1.2 billion tax increase just passed by the Legislature – one that required an override of Governor Brownback’s veto. You can be assured that all that money coming into the state’s coffers will be like blood in the water to those using the courts to prey on taxpayer dollars.
One of Mr. King’s declarations to the Legislature is his prediction that given the history of education funding litigation in Kansas, regardless of what the Legislature ultimately puts into statute, another lawsuit will be filed in about three years or so. I think he’s being optimistic, I doubt it will take that long.
