Kansas Supreme Court Justice Eric Rosen wanted to know if there will ever be an end to the decades-long fight between public schools and the Legislature over the state’s K-12 finance formula.
Alan Rupe, the attorney for Schools for Fair Funding, told the court during arguments Thursday that the two sides are “real close” to resolving the current lawsuit, but lawmakers failed to properly calculate inflation.
Rupe said the children who were second-graders when the current lawsuit was filed are about to graduate, and the lack of adequate funding has made them “casualties of the process.”
Schools say the addition of $90 million in annual funding, adopted earlier this year, falls short of the $363 million that should be added by the end of a five-year plan that was put in place in 2018.
Even if the schools get the higher amount, Rosen said, they could file a new lawsuit based on new criteria. Rosen referenced a study commissioned by the Legislature that concluded significantly more money is needed to address achievement gaps and graduation rates.
“Is there ever crossing the finish line in these types of cases,” Rosen said, “or are you going to be back here three or four years down the road, making the sort of argument you just made — the future of our children, they are casualties of the process. Is this just indefinite?”
Rupe said he has worked on behalf of schools since 1989 because the state routinely fails to meet its constitutional obligations.
Toby Crouse, solicitor general at the Kansas Attorney General’s office, pointed to overwhelming support behind the Legislature’s latest offer. A majority of lawmakers, as well as the governor and Kansas Board of Education, all agree the $90 million should be enough.
That money is in addition to legislation passed last year that will add $522 million in annual funding by 2023. The goal of that plan was to retreat to the “safe harbor” of the funding levels last approved by the Supreme Court more than a decade ago.
Lawmakers abandoned that earlier plan during the economic downturn in 2008, then made further cuts to the base aid per student, leading to the current lawsuit.
Last year, the high court said it would accept the Legislature’s new plan but took issue with the failure to account for inflation during the five-year rollout. The Kansas Department of Education then determined $363 million was missing, and lawmakers this spring chose to make four payments of $90 million.
Schools for Fair Funding initially supported the plan, then reconsidered after questions were raised in a committee hearing by Senate Majority Leader Jim Denning, R-Overland Park. Denning said his calculations showed the schools should get the full $363 million on top of the $522 million boost in the final year of the plan, and he wanted Schools for Fair Funding to tell the high court that a lesser amount was sufficient.
Rupe said the group checked the math based on Denning’s comments and realized schools were being shortchanged. Rupe used a loaf of bread as an analogy and said the state was applying inflation to the new money instead of the entire school funding budget.
“It’s simply that inflation works on a whole loaf of bread,” Rupe said. “Their solution doesn’t attack the whole loaf of bread. It attacks the one slice.”
In an interview after the hearing, Attorney General Derek Schmidt disputed the assertion that the state’s math is wrong.
“We’re so far down in the weeds of this litigation, it’s like sitting through a math class every time we come over here to argue a constitutional principle,” Schmidt said. “I think that fact in and of itself is an indication that we ought to be close to the end of the road.”
Justices appeared willing to accept the state’s position that getting close to the safe harbor target is good enough. Justice Dan Biles told Rupe the court has never said the state’s target was the minimum amount of money needed to satisfy constitutional standards. The difference between the Legislature’s plan and what the schools want is $260 million on a $3.4 billion budget.
However, justices made it clear they weren’t ready to dismiss the case even if they approve the Legislature’s fix. The schools want the court to maintain oversight until the five-year plan is carried out.
Biles, who was appointed in 2009 to the Supreme Court after successfully defending the state’s earlier school finance plan, told Crouse he didn’t “have a lot of sympathy for the idea of dismissing this lawsuit.”
“Part of it may be based on the fact that 13, 14 or 15 years ago, I stood in exactly the same spot that you’re standing right now, probably on the same carpet, and made the same argument, and the Legislature reneged on the deal,” Biles said.
If the court releases the case, Biles said, lawmakers could come back next year and adopt a funding plan they know is unconstitutional. Schools would then have to file a new lawsuit, starting at the district court level, “and we’re off to the races,” Biles said.
Schmidt said he understands the history, but “this is not 2008 all over again.”
“It’s simply not appropriate for the court to have what is essentially a permanent role in supervision of the policy and funding decisions made by the Legislature and the governor,” Schmidt said.
Senate Minority Leader Anthony Hensley, D-Topeka, said the prolonged litigation is a direct result of the Legislature’s failure to keep its promises.
“I think they should maintain jurisdiction until the 2022-2023 school year because the Legislature has a pretty poor track record when it comes to keeping our commitment,” Hensley said.
Sen. Molly Baumgardner, a Louisburg Republican and chairwoman of the education committee, said money allocated in the first year of the school finance plan allowed districts to hire 2,000 more full-time employees this year. On top of the base aid, Baumgardner said, lawmakers have earmarked funding for at-risk students and provided resources for English language learners and mental health services.
Despite that progress, she said, Rupe “made it abundantly clear that he will continue to come back and come back and come back against the Legislature.”
“We’ve been dealing with this for nine years now, but what happens in school districts, what the needs are in school districts, is constantly evolving,” Baumgardner said. “What we have done in our formula is we have directed funding to address those evolving needs.”