Schools for Fair Funding

Gannon V Victory

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The Supreme Court issued Gannon V this afternoon declaring SB19 and the school finance system unconstitutional again, both on adequacy and equity grounds. The court did not require a legislative response this fall and gave the legislature until April 30, 2018, to take another swing at it.  This is a good decision!

Here is a link to the full opinion:

http://www.robblaw.com/PDFs/2017-10-02%20Gannon%20V%20Decision.pdf

The court first traced the history of the cases on school finance and the specific history of the Gannon case. It then detailed the adequacy and equity violations.

Adequacy.

It was the state’s burden to show that through SB19 “the public education financing system provided by the legislature for grades K-12-through structure and implementation——-is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose.”  The state did not meet this burden.

The court once again found that it was proper to take judicial notice of appropriate matters rather than forcing a new trial for a trial judge to “find the facts.” This allows the case to keep moving rather than sending it back to square one.

The court then found that the “structure” of the new formula, which is, in essence, the old formula, is acceptable. This is a wonderful finding. While we knew the old formula passed constitutional muster, it was unclear that a simple return to that formula would suffice. It does. The court said that items we had raised in our brief concerning the underfunding of parts of the formula (sped, professional development, mentor teacher program) do not relate to the “structure” of the formula. We can positively assert that the “formula” is structurally sound… it is just underfunded.

The court then spent a good amount of time explaining that the state had not “shown its work” in justifying why SB19 purportedly fixed anything. The court was extremely critical of the legislative sole reliance on a four page Kansas Legislative Research memo setting forth a purported “successful schools” approach to justify the base in the new formula.

Recall that the legislature concocted its own version of a successful schools approach and then attempted to fund the rest of the districts on what these schools were spending. The court, however, said “Simply put, merely performing “better than expected”— while perhaps a test for efficiency– is not our Kansas test for constitutional adequacy.” The court highlighted the failure rates in these 41 “successful schools” and said:

“Stated simply and starkly, the State’s “successful schools” model does not contain enough schools or districts meeting student performance standards——much less constitutional standards of adequacy——to warrant that label.”

“Given these flaws, we must conclude the State has not established any valid figure through its calculations-based upon the schools it calls successful-to show S.B. 19 is constitutionally adequate. In short, the State has not met its burden: to show that the public education financing system provided by the legislature in S.B. 19 for grades K-12 is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose….”

The court restated its Gannon IV conclusion that more money was needed.

“Accordingly, we concluded more funding was needed to raise performance to at least reach the minimum standards….”

The court focused on the state’s failure to show how the funding levels in SB19 fixed anything.

“But as the State currently professes to provide adequacy, it does not indicate why, how, or by how much, any of these levels are going to be improved by its proposed level of funding in S.B. 19….”

Very notably, the court rejected the state’s attempt to claim that simply fixing at-risk spending was all that the case was about. It is about ALL kids. The court said:

“(W)e must also expressly reject the State’s occasional contention throughout its brief that in Gannon IV we were concerned exclusively with the underperforming subgroups and that only their performance caused by inadequate funding was the basis for the Article 6 violation.”

The court then commented on the increased reliance on the LOB and the election/protest petition process. The court points out that by increasing reliance on local funding to replace diminished state funding may initially be a legislative decision but it is subject to review by the court on equity grounds.

The court did NOT set out a “number” for new money needed for compliance. The court did say the following:

“Finally, we further note other calculations in the record of “new money needed” for fiscal year 2018 and fiscal year 2019 are considerably higher than the $292.5 million presented by the State. At the high end is $1.7 billion as calculated by the plaintiffs by averaging the legislatively ordered cost studies performed by A & M in 2002 and the LPA in 2005-2006 and then adjusting for inflation. And next highest is approximately $893 million as presented to the governor by the Kansas State Board of Education (SBE) in its budget for fiscal year 2018 (base of $4,604 for around $565 million) and fiscal year 2019 (base of $5,090 for approximately $328 million). The next highest is $819 million as calculated by plaintiffs using the panel’s fiscal year 2014 proposed base of $4,980 in fiscal year 2018 and continuing to adjust for inflation by increasing that base to $5,055 in fiscal year 2019. The fact these wide-ranging calculations have been presented does not alone resolve the issue of adequate funding. The magnitude of the difference between those calculations and S.B. 19’s, however, emphasizes the need for the State to truly demonstrate the validity of its funding approach and the financial figures that approach produces.”

We think that the State BOE request is still the best evidence as to what increase is needed. The State BOE need was $893M. The legislature funded $293M. They are still $600M short.

Equity.

The court found in our favor on all four major equity concerns. It did not void these provisions for this year but called them unconstitutional moving forward. Gone are:

  • Expanding capital outlay for property and casualty insurance and utilities
  • Reinstating a protest petition/election procedure for increasing LOB
  • Equalizing LOB on previous year’s LOB
  • Setting a 10% floor for at-risk to benefit two districts

The court found that each of these provisions violated the equity test and found them unconstitutional.

As to the expanded capital outlay to insurance and utilities the court said;

SB19’s expansion of capital outlay spending categories “clearly underscore(s) the disparity that results not only from the capital outlay equalization formula but also, and more importantly for this discussion, a disparity that is exacerbated by allowing a shift of more types of expenses to be paid from that fund…. [The capital outlay amendments] exacerbate wealth-based disparities, resulting in unacceptable levels.”

As to the protest petition/election LOB process, the court said:

“The panel’s finding—a correlation exists between a district’s wealth and its ability to gain voter approval of a board resolution that is certain to raise mill levies—is supported by the LOB election history contained in the record on appeal…. These results indicate that reinstating the protest-petition process will exacerbate wealth-based disparities among the districts—except, of course, for those 38 districts already at the 33% maximum LOB authority…. As such, we conclude S.B. 19’s provision reinstituting the LOB protest-petition process for all increases violates the equity requirement of Article 6. In short, many districts are effectively denied an access reasonably equal to the one afforded these other districts—access that is needed in order to make a similar tax effort, e.g., impose a comparable mill levy. So it logically follows that because of this lost access they cannot as readily avail themselves of the advantages that would flow from that tax effort, i.e., a substantially similar educational opportunity.”

As to equalizing LOB on previous year’s LOB the court said:

“Unfortunately, S.B. 19’s LOB lookback provision does not limit this disparate effect of local funding. Rather, it widens the gap between property-poor and property-wealthy districts…. S.B. 19 withholds some equalization funds, and this lookback provision therefore affects only property-poor districts…. As such, S.B. 19, § 17(b) exacerbates wealth-based disparities and violates Article 6….”

Finally, as to the 10% at-risk floor (the Blue Valley and DeSoto $2M for at-risk kids they do not have) the court said:

“In other words, this provision of S.B. 19 uses a wealth-based standard…. In sum, we cannot discern from the legislative record how the legislature determined that a 10% cutoff could be justified, e.g., from an actual cost basis—both as to the districts that benefit from this alternative calculation and as to those that may be excluded despite the costs of educating underperforming students who do not qualify for the free-meal program…. On the record before us, the State has failed to meet its burden of establishing that S.B. 19, § 23 complies with the equity standard of Article 6.”

The remedy.

The court requires that the legislature fix these matters by April 30, 2018. The court went on to stay its decision until June 30, 2018, which allows time to judge the April 30 remedy and issue Gannon VI decision prior to June 30. The court then did two things to show it was serious about this timeline.

First, the court said:

“With that regrettable history in mind, while we stay the issuance of today’s mandate through June 30, 2018, after that date we will not allow ourselves to be placed in the position of being complicit actors in the continuing deprivation of a constitutionally adequate and equitable education owed to hundreds of thousands of Kansas school children.”

Second, the court actually set the briefing schedule on the constitutionality of the bill that the legislature must adopt by April 30.  Initial briefs are due to the court April 30, Response briefs are due by May 10 and oral arguments to the court will be on May 22. (Mark your calendars!)

The decision brought three concurring and dissenting opinions of the seven justices. Justices Johnson and Rosen agreed with the decision but would have required a legislative response by December 31, 2017. Justice Biles is ok with the April 30 deadline but would have stayed the equity pieces for THIS year instead of waiting a year.

Gannon V is a great decision. It went for Kansas children on all issues that count. The only downside was the timing of the remedy.   Should the next legislative attempt fail, count on a special session for sure next summer.

 

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Motion to Strike Misleading Statements from State’s Brief

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Motion to Strike filed.  2017-07-13 Motion to Strike Misleading KSBE Statements (1)      Last Friday was the filing deadline for the response briefs after the initial briefs were filed the week before. We filed ours and the State filed its.  As we processed the State response brief last weekend, we became concerned with the section titled:

“The State Board of Education’s budget request was not based on the Rose standards or on the costs of providing a constitutionally adequate education.”

In this section of the State’s brief the State cites Minutes of legislative hearings where Commissioner Watson testified.

The brief says:

Commissioner Watson explained, “[w]hen the State Board set forth their budget, they had a premise that school districts would use such funds within the State Board model to help students be successful in line with the State Board’s ‘complex goals,’ not the Rose standards.” Minutes of May 22, 2017, Senate Select Committee on Education Finance at p. 3 (emphasis added). Commissioner Watson explained that the desired “outcomes” under the BOE’s “complex goals” exceed the Rose capacities in many ways. Minutes of May 22, 2017, Senate Select Committee on Education Finance at p. 2.

This was not our memory of how Dr. Watson testified. We were recording most of the legislative hearings this year, so we went back and actually listened to the recordings again to see what Dr. Watson actually said. He did not say or imply the items above. The Minutes that were prepared and submitted to the Court do not correctly portray the hearing or his comments.

Also, recall that the legislature hired former Sen. Jeff King to advise it on these topics. When he came on board, he took charge of monitoring the Minute process. Here is how HE characterized what he was going to do… We had that recorded also.

King: During your debate, I listened to, the level of thoughtfulness and reasoning and consideration of why these amendments would go on or not from a performance based standard, was very high. And the minutes will reflect that because there was so much information. And that is very helpful and one of my jobs is to make sure that is packaged in a way the Court accepts it, sees it and considers it fully. . . .

Rooker: So if I may, you mentioned having listened to our marathon work session, but are you also evaluating the other 3 months of committee work? Because we’ve had hearings on specific elements of this formula over the course of this session.

King: The answer is yes, I’m still working on it. That is part of making sure that everything in the minutes reflect what’s done . . . and so that’s an ongoing process and to me if there’s any frustration with delays and getting the minutes compiled, I will take responsibility for that. Because I think it’s that important that we review it and

It is apparent that the legislative minutes do not accurately reflect the testimony of
the hearings. The minutes have been prepared or supplemented with material to support
the State’s position with testimony that simply did not occur. It is either
extraordinarily coincidental or intentional. Regardless, the indicated arguments and
portions of the State’s brief should be stricken as not supported by the evidence.

 

Briefs on S.B. 19

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Teacher asking her students a question

Below are the briefs filed by the Gannon Plaintiffs, the State, and Legislative Coordination Council (Jeff King’s) Amicus Brief.  Reply briefs are due today, July 7th.

2017-06-30 Gannon Plaintiffs Adequacy Remedy Brief

2017-06-30 State Adequacy Remedy Brief

2017-06-30 Legislative Coordinating Council Amicus Brief

Supreme Court Oral Arguments Set for July 18

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The court ordered simultaneous briefs by both parties due June 30 with reply briefs due by both parties on July 7. Oral arguments have been set in Topeka for 9:00 a.m.on July 18. Please mark your calendars to appear and watch the oral arguments and support the cause.

The order can be seen here:

2017-06-19 Supreme Court Scheduling Order – Remedy Briefs and Oral Argum…

CONTACT YOUR LEGISLATORS

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The House and Senate passed a school finance bill yesterday as well as a tax bill to fund it. While the school finance bill certainly does not provide adequate funding and has other equity problems we intend to raise with the court, the bill does largely get us back to a rational formula to fund the schools. The governor has indicated that he may veto the school finance bill and will veto the tax bill. We need to move forward. We expect veto override attempts in both the House and Senate later today. We need you to contact your legislators as soon as possible and ask them to support the veto overrides.

Kansans spoke clearly last November that we need to return fiscal sanity to state government. The governor is in denial and does not support the clear direction that Kansas voters sent. The veto override is needed on one or both bills. Please make your calls.

Please do all that you can to get in touch with your legislator(s) now.

An entire generation of Kansas kids is counting on you!!

KSSA School Finance Statement of Position

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Please find the Kansas School Superintendents’ Association’s position statement released this morning.

On behalf of the Kansas School Superintendents Association (KSSA), we want to reach out and share a couple of items. First, thank you for all your legislative efforts. Your voices are being heard and change appears to be on the horizon. Second, the job is not finished. Through the leadership of the House K-12 Education Budget Committee Chair Larry Campbell, the committee has developed a school finance plan, HB 2410, which over five-years increases school budgets $751,863,231.

KSSA believes this proposal should only be considered a solid start to a possible school finance formula that meets the diverse needs of our students.  Last spring, the Kansas State Board of Education recommended an increase in school funding in the amount of $893,497,231 in order to fund the initiatives found in the new KansasCan vision and the accountability of the new Kansas Educational Systems Accreditation.  The Kansas State Board recommended the restoration of adequate funding occur over a two-year period. KSSA believes this increase is more indicative of the funding needs, knowing the current expectations being placed on school districts in the coming years. Rolling the additional funding over five years causes great concern, as this would mean three different legislative bodies would have to keep the promise of funding schools and a good portion of the increase would be absorbed by the cost of inflation.

As you continue to share, discuss, and answer questions with your local legislators, please know the message KSSA will be sharing with legislative leadership is the (restoration of adequate funding) increase should be $893,497,231. We understand that legislators are facing projected shortfalls in future years and may need to spread out the increase over two to three years. If you haven’t already, KSSA would encourage you and your board to have an implementation plan ready to share with your legislators. We believe it is important your representatives understand how your district would infuse these dollars into the classroom, program changes, staffing additions, and other academic enrichment opportunities for students.

If you have any questions, please don’t hesitate to give us a call.

Cory Gibson – KSSA President
Suzan Patton – KSSA President Elect
G.A. Buie – KSSA Executive Director
785-232-6566

LINK TO E-MAIL

H.B. 2410 Kansas School Equity and Enhancement Act Testimony

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Chairman Campbell, Members of the Committee:

Schools For Fair Funding is a coalition of 40 Kansas school districts comprised of 135,241
students, or 30% of the students in Kansas. Thank you for the opportunity to present our views on HB2410.

We are testifying OPPOSED to this bill due to the issues outlined herein.
In judging the constitutionality of any school finance bill, the Kansas Constitution is the
guidestar. The Kansas Supreme Court has further defined just what our Constitution requires to guide us. Most recently, in the Gannon case, the Court has provided the most detailed articulation of the requirements. There are two components a bill must provide to pass constitutional muster: It must provide for adequacy and equity.

Adequacy:
“To determine compliance with the adequacy requirement in Article 6 of the Kansas
Constitution, Kansas courts apply the test from Rose v. Council for Better Educ., Inc.,
790 S.W.2d 186 (Ky. 1989), which establishes minimal standards for providing adequate
education. More specifically, the adequacy requirement is met when the public
education financing system provided by the legislature for grades K-12—through
structure and implementation—is reasonably calculated to have all Kansas public
education students meet or exceed the standards set out in Rose….”

Read the complete testimony here:  SFFFtestimonyHB2410final (1)