Tuesday, June 26, 2018

How the Supreme Court answered questions about Kansas school finance

Here is how the Kansas Supreme Court answered questions raised in the briefs filed by both parties and oral arguments May 22, in yesterday's unanimous ruling.

1.       How much is enough? The state says actions by the Legislature over the past two sessions will provide $1 billion more in school funding over a six-year period. The plaintiffs want $500 million added to what the Legislature did immediately (for next school year) and up to $2 billion more phased in and adjusted for inflation. Gannon VI answer: The court accepted the state's argument that the Legislature could return to the funding levels approved by the court in the Montoy case for 2010, which was presumed constitutional, if that amount is adjusted for inflation. This is called the "Montoy safe harbor." However, the court said the amount of funding provided must be further adjusted for inflation for the years that additional fund has already been provided (2018 and 2019), and for the additional phase-in years approved this past Legislative session (2020 through 2023). The court directed the Legislature to make those adjustments during the 2019 session.

2.       Meaning of the latest cost study. The state says the $2 billion cost of meeting state standards developed by Dr. Lori Taylor and others is based on "moon shot" aspirational goals that should not be required constitutional adequacy. It argues the Legislature used another approach to adequacy, based on previous rulings of constitutional compliance in 2009. The plaintiffs say the new study's goals are based on what Kansas students need to be successful, as defined by the State Board of Education, and the new study confirms what previous state-commissioned studies, a peer review this Spring, and an alternative study commissioned by the plaintiffs found about the cost of meeting state standards. Several justices questioned why the Legislature has repeatedly paid for cost studies it then doesn't want to follow. Gannon VI answer: By accepting the "safe harbor" - assuming the Legislature complies with the adjustments for inflation – the court said it does not need to consider new studies. "As a result, we need not address whether the WestEd (Taylor) cost study and Myer-Picus Report (commissioned by the Plaintiffs) can be considered for the first time on appeal."

3.       What is required to meet the “Rose” standards? The Supreme Court has set the standard for adequacy as enabling "all" students to meet or exceed seven standards of educational competence, from basic skills to preparation for college and career, called the Rose standards after a Kentucky school finance case. A major reason courts found the current finance system unconstitutional is that about 25 percent of students score below "grade level" on Kansas state tests and nearly 15 percent do not graduate on time. The state says approved funding should[LF1]  allow 85 percent of students to reach grade level. Plaintiffs say the target should be at least 90 of students on grade level and 60 percent of students "college ready" on state tests. Justices asked how high the constitutionally acceptable bar had to be – can schools be expected to reach 100 percent? Put another way, can more money solve all educational issues? Gannon VI answer: The court essentially accepted that the level of funding committed in the Montoy case as constitutionally suitable, if adjusted for inflation.

4.       Does money matter? No debate here: both sides agree additional funding will improve education. The state says its billion-dollar increase will significantly improve student success and should satisfy the constitutional requirement. The plaintiffs say it won't go far enough. Gannon VI answer: As noted, there is really no debate that money matters; the court determined that, at this point, the Montoy level is acceptable if adjusted for inflation.

5.       The role of the court. Several justices expressed concern that any decision based on substantially new facts – such as the new cost study – would go beyond their scope as an appeals court. They raised the possibility of sending the case back to the three-judge panel to consider new evidence. Neither side expressed much support for a step that would add months or years to the process. Gannon VI answer: The Court accepted the Montoy safe harbor approach and avoided consideration of new cost studies as evidence.

6.       The role of the State Board of Education in funding. Article 6, section 1 of the Kansas Constitution gives the Legislature the duty to “establish a system of public schools” for educational improvement; and in later sections delegates to the State Board authority for “general supervision” of public schools; to local school boards the duty to “maintain, develop and operate” schools and to the Legislature the duty to “make suitable provision for finance.” The state says this means the Legislature has the primary role, and the State Board is to supervise the system the Legislature “establishes.” The plaintiffs argue the State Board has independent authority to set educational standards for schools and students which the Legislature then must support with adequate funding. When asked if that means the State Board could lower standards (and therefore costs), plaintiffs replied that the Supreme Court should then intervene to the enforce the provision that the public education system must provide educational “improvement.” Gannon VI answer: By accepting the Montoy safe harbor, the court did not address changing standards by the State Board.

7.       Retaining jurisdiction. The school finance bill passed in the 2018 session includes phasing in more than $400 million spread over the next four years. The plaintiffs want more money now AND a phase-in of additional funds. However, the state wants the court to dismiss the case, which means if the Legislature failed to follow through, a new lawsuit would have to be filed. The plaintiffs want the court to retain jurisdiction until any final resolution is fully implemented, which could be more than five years. The Supreme Court allowed a three-year phase-in as part of the Montoy case in the late 2000’s. Gannon VI answer: Because the court ruled the Legislature has not fully complied, the case will continue for at least another year.

8.       What happens to the Local Option Budget? The state claims the new requirement of a 15 percent LOB should count in its favor because it will increase the mandatory commitment of funding for each district. (For example, it would keep local school districts from using additional state aid to offset their LOB and reduce local property taxes.) Plaintiffs argue that a mandatory LOB should be 100 percent equalized by the state, rather than equalized to the 81.2 percentile under current law. The court has approved the 81.2 percent rate for the currently optional LOB. Plaintiffs also want the court to remove any voter protest or election requirements for the LOB and strike a provision that requires districts to use LOB funding for at-risk and bilingual education programs in proportion to amount of at-risk and bilingual weighting they receive. Gannon VI answer: Gannon VI answer: The court accepted the state's arguments on the LOB, which means districts will have to maintain a minimum 15 percent LOB; that adopting an increase in the LOB greater than the statewide average for the preceding year is subject to voter protest petition, which would result in an election; and that districts must transfer amounts from the LOB to at-risk and bilingual funds amounts in proportion to their at-risk and bilingual weighting.

9.       When will the court decide? That’s up the court. It previously promised a decision by June 30. If the Legislature’s action is found to be insufficient, the state has asked that the system be allowed to operate (schools remain open) during the upcoming school year (while about $200 million will be added) and the Legislature given next session to continue to work toward compliance. Plaintiffs say unless the Legislature approves additional funding for the upcoming school year, more funding committed for the future and changes to the LOB, the court should shut down the school finance system until it does – but want exceptions to allow maintenance of school district buildings and property while schools are closed. Gannon VI answer: Having reached this decision, the courts set a date of April 15, 2019, for briefs on the Legislature response next session, response briefs due April 25, and oral arguments May 9.

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