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Three Equal Branches of Government

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From:  Jim McNiece

As every American History and Government teacher knows there are three branches of government at the federal and state levels:  the executive, legislative and judicial.   One of the great innovations of the founding fathers was the introduction of an independent judicial branch.   An independent judiciary works!  The rule of law defines us as a nation.   One of the most consequential issues facing citizens in the November election will be the retention of the Justices on the Kansas Supreme Court.  It is my strong recommendation that the Justices be retained and the tradition of an independent judiciary be maintained.

There have been many court decisions through history, as well as recent times, that offend one side or the other.  The Kansas Supreme Court reviews cases and makes decisions based on the state and federal Constitution.  The court focuses on insuring all sides receive a fair and impartial hearing.   As with referees anywhere, their judgement and decisions elicit emotional responses.    Issues that include abortion, the death penalty, school finance, and many more cannot be decided in today’s political climate without one side or the other crying foul when a court decision based on law goes against their beliefs or expectations.    The rule of law and an independent judiciary are important corner stones of our democracy.  If we choose to politicize the Supreme Court and disregard the system of checks and balances for a judiciary politically beholden or sensitive to public opinion,  than we have taken a first and drastic step away from the founding principles  of our nation.

Vote to retain the Kansas Supreme Court Justices on November 8th.


New funding not available for classroom spending

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All Funds and Total Expenditures

The State argues funding has increased and schools are spending at record levels. The state’s argument fails.

Funding has increased in some areas, but the increased amounts are not necessarily available for classroom purposes and are not available to all Districts.

1. Federal Aid increased temporarily replacing state dollars.
Federal Aid increased significantly (ARRA funding) in 2010 and 2011. But State dollars decreased by even more, and total funding was down those years.

Federal Aid was about 7% of total funding in 2009 and was 8% of total funding in 2015.

2. Federal Aid is targeted dollars, including food assistance.
Total Federal Aid has increased $96M since 2009. But this is targeted aid that is tied to specific programs or districts. Looking at the total federal aid does not determine what is available for programs in all districts.

For example, Federal Food Assistance increased by $79M between 2009 and 2015. That accounts for the majority of the $96M increase in Federal Funding! This money is limited by the feds to food service.

3. KPERS Funding Decreased, then Increased, then Decreased, then Increased.
In 2015 KPERS funding was up by 45% or $108M over the 2009 amount.

Funding for KPERS has not been steady, and is an accounting pass-through for districts. The legislature has simply funded what they felt they could afford in any given year and the increases and decreases to KPERS have not changed the dollars available to be spent by Districts in their classrooms to meet the Rose standards.

4. Increased Local funding available to a few districts.
In 2009, the local mill levies available for Cost of Living, Ancillary and Declining Enrollment brought in $20M for only 7 districts. In 2015 this funding had increased to $45M for only 7 districts. These are purely local dollars available to a select few districts, with no equalization available. These local dollars have more than doubled since 2009, but this has not increased budgets for the majority of districts. These increases are simply not available for all districts to use to meet the Rose standards.

5. Additional LOB available to a few districts.
In 2009 the additional 1% LOB available to districts only with taxpayer approval amounted to $5M for only 5 districts. By 2015 the extra 1% LOB had become an extra 3% LOB, and it raised $23M for only 29 districts. These increases provided extra funding to some districts, but did not provide additional funding to the majority of districts.

These increases have simply not been available to all districts, to help them succeed in their classrooms to meet the Rose standards.

2009-20015 Cost Increase Comparison

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Costs have increased, and these must be considered for a comparison between years.

Looking at total funding or total expenditures doesn’t get you a clear comparison when needs and costs are increasing every year.

1. Increasing Enrollment:
Enrollment increased by over 15,000 students between 2009 and 2015. At a base of $3852, without even adding weightings to adjust for differing costs, this is an increased need of over $60M.

2. Increasing Numbers of At-Risk Kids:
Kids in poverty cost more to educate, and that’s why there were weightings in the formula tied to free and reduced lunch, to address those higher needs and costs.
In 2009 there were 152,117 kids on free or reduced lunch. That number increased by over 41,000 students by 2015. That’s 41,000 more students who are more costly to educate. At a base of $3852 and at risk weighting of 0.456, this adds an additional $72M in increased need and cost.

3. Increasing Numbers of English Language Learners:
Kids who are still learning English take more resources and cost more to educate. Again, like the at-risk weighting, there was a weighting in the formula to address this higher need and cost. In 2009 districts had about 100,000 contact hours with ELL kids. That number had increased by 57,000 hours by 2015. That’s an increase of 58% by 2015. At a base of $3852 and bilingual weighting of 0.395,this adds $14.5M in increased need and cost.

4. Weightings:
The weightings were in the formula because they represented needs and additional costs. If you’re going to look at total funding or total expenditures, you need to make an apples to apples comparison. Looking at spending on a per pupil basis helps account for enrollment changes, but it does nothing to account for the increasing costs and needs districts have due to the increasing numbers of high cost kids.

For a valid comparison, you need to look at the total expenditures per weighted student. Doing that, and converting to 2015 dollars, shows that districts had $941 less per weighted student in 2015 than they did in 2009. On this basis, not only is total funding down since 2009, it is lower than what the State promised the Court in Montoy they would fund to get the Montoy case dismissed. To get total funding and expenditures equal to 2009, on a weighted basis, Districts would need an additional $641M.

The result is obvious, regardless of whether total spending is up or not. Significant numbers of students are not meeting the Rose Standards. This is caused by the State not funding what it takes to meet the
constitutional mandate.

2009 to 2015 Comparison

Federal aid Increased 96,574,843
State Aid (note that the 20 mill levy was shifted from the local column to state column during this time) Increased 681,740,701
Local Aid (note 20 mill shift above) Decreased (358,517,517)
Total Net Increase in Total Aid Increased 419,798,027
Total Expenditures (all funds): Increased 413,265,668
Federal Food Assistance Increased 79,201,000
Additional targeted federal aid Increased 17,374,000
KPERS Increased 108,351,000
Local Levies for Cost of Living, Ancillary and Declining Enrollment for only 7-8 districts Increased 25,025,761
Additional LOB for only 29 districts who were able to pass an election Increased 17,260,968
Enrollment Increase of 15,651.3 FTE x 3852 (2015 base) Increased 60,288,808
Increased At-Risk weightings 41,136 more at-risk x 0.456 x 3852 Increased 72,255,878
Increased Bilingual weightings 57,478 more hrs / 6 x 0.395 x 3852 Increased 14,575,846
Total NET change in available dollars when controlling for increases in targeted dollars and changes in need over 6 years Total increase over 6 years 18,932,407
  Average annual increase 3,155,401

BUT this is in Nominal Dollars, not Real Dollars. You need to adjust for inflation over the 6 years…

Adjusting 2009 total expenditures ($5.67B) using the US Department of Labor CPI calculator shows 2015 expenditures should have been $594M more just to stay even ($6.26B). 6 year increase for inflation should

have been

Inflation requires an annual increase in required funding to maintain the same purchasing power Annual inflation increase should have


Total NET change since 2009 in Real Dollars ($594M inflation – $19M actual increase) 6 year decrease (574,849,593)
  Average annual decrease (95,808,266)


The Achievement Gap

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With unconstitutionally lower levels of funding, schools have been forced to cut staff, services and programs.  The reduction in staff and services has had a negative impact on student achievement as demonstrated in the charts below.  Students below grade level or below standard have more than doubled in some instances. achievementgapcharts




Court Accepts Fix

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Group of Elementary Pupils In Classroom


Court accepts fix… equity resolved for now.  We have spared you from hourly updates through the special session. We assumed most of you were following in a more “real-time” manner than we could provide anyway. Here is a summary recap of the past week or so.

We began the session with the same position that we have had for years:

(1) Equity must be fixed.

(2) The “safe harbor” was the best approach at this late date to avoid school closures.

(3) Hold harmless provisions were likely to be rejected by the Supreme Court and should be avoided.

(4) The funding for the plan should not come from the schools. (The schools-funding-the-plan card had been played by the legislature in March and the Supreme Court rejected this approach.)

Our position was also the court position as shown in the Gannon I, Gannon II and Gannon III opinions. It was our strong belief that any deviation from the above positions would be rejected by the court and cause a shutdown. It was also our strong belief that a court rejection, school closures, and a second special session were not in anyone’s best interest.

Just prior to the session the JoCo schools and all the JoCo Chambers of Commerce held a press conference insisting that any plan must contain a hold harmless provision so that no school lost money. We opposed this. The purpose of equalization is to… equalize. The system would not equalize if those with an advantage that is no longer warranted by the formula were allowed to retain the advantage.

Legislative leadership early on agreed that a full funding of the LOB equalization under the old formula for $38M was the most certain path to compliance. Hurdle one cleared.

Legislative leadership came to the realization that a hold harmless would most likely be rejected, cause a closure and require a second special session. They, therefore, moved away from the hold harmless provisions fairly early in the discussions. Hurdle two cleared.

Then we hit the “how do you fund it” wall.

Legislative leadership decided to run the schools-funding-the-plan game again with a .005 cut to all schools. We opposed this. The court had said that the solution could not harm adequacy. The funding source became the point of negotiation.

Leadership wanted the .005 cut. The schools did not. Once leadership determined that they did not have 63 votes in the house, due to the opposition from the schools and the prospect that the court would not accept the cut, leadership began to get creative and search for other funding sources.

We offered to join in a stipulation to the Supreme Court that equity had been cured if they could get to a “clean” fix that did not have a bunch of extraneous policy stuff in it and could be appropriately funded without cuts to the schools.

Leadership proposed to drop the .005 cut and substitute any excess from the sale of the Bio Science assets, but insisted that if this was not enough that any shortfall come from the .005 cut. We rejected this due to the potential cut. Leadership came back with a .0025 cut. We rejected this also.

The extraordinary needs fund was in play also. This is school funding, but no district could budget for it and the process had been a sham in its first year. The fund was not even consumed the first year and was swept to cover part of the state deficit. Leadership had already tapped the fund for part of the solution and the final agreement was to make the extraordinary needs fund absorb the excess if the Bio Science asset sale did not cover the cost. If the extraordinary needs fund did not cover it, then the state general fund would make up the difference.  No cuts. Hurdle three cleared.

At this point there was agreement. Bill Brady signed the agreement on behalf of SFFF, which is attached. The bill was printed and we waited to review the actual language. The bill drafting was sufficient. Bill Brady testified in favor of the bill on behalf of SFFF, as agreed,  and the House then passed the bill 116-6.

The Senate had not been involved in the process to this point. Upon the House passage, the Senate agreed to support the same bill if Alan and I signed the agreement also. We requested that President Susan Wagle sign the agreement. She did and we did. The Senate then passed the bill 38-1.  HB 2001 Agreement

On Sunday, we prepared a stipulation draft and submitted it to the Attorney General. Negotiations over the language continued throughMonday and the stipulation was filed with the Supreme Court late yesterday. Here is the stipulation: 2016-06-27 Joint Stipulation Constitutionally Equitble_ Compliance

The Supreme Court accepted the stipulation late today. I attach the decision. The court ordered that “The planned implementation of HB 2001 and full funding of that formula for 2017 would be in compliance with the equity component of Article 6 Section 6 of the Kansas Constitution…. Therefore, no judicial remedy is necessary at this time. Oral arguments to address the adequacy portion of this litigation will be set by future court order.”Order062816

Kudos go to Bill Brady and his team for managing this entire process. We would not be where we are now without his efforts. Thanks also to the schools and supes that participated, both directly and indirectly. The meetings, calls and emails mattered. It simply would not have happened without everyone’s efforts.

Assuming the legislature does not back up on equity after the election, like they did last time, we should be finished with equity. It is now on to adequacy.

Attached is an article by John Celock that gives a bit more detail about the process. He gets it mostly correct.  91163 Celock Report – How Game Changer Kansas Schools Deal Was_ Reached (1) 

Equity Order

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sffflogo - Mail Chimp

Equity has been met, for now!


Signed agreement on school funding solution

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Group of Elementary Pupils In Classroom

Schools for Fair Funding is pleased to support the legislature and the Governor when they pass constitutional school finance laws. And when they do not, we stand ready to challenge their actions. Kansas school children deserve no less. 

Gannon – Joint Stipulation of Compliance 0616