State asks Kansas Supreme Court to dismiss Gannon school finance lawsuit; plaintiff districts say new law still falls short

The Gannon lawsuit may come down to math.

On Monday, the State of Kansas asked the Kansas Supreme Court to accept SB 16 as an adequate response to the long-running Gannon school finance litigation and dismiss the case. But the plaintiff school districts say the new law still falls short and have urged the court to order the Legislature to try again.

While SB 16 adds approximately $90 million in response to the court’s last Gannon decision and sustains that for the next four years, the plaintiffs say the court wants an additional $90 million added on top each of the years. The districts have asked the court to allow SB 16 to take effect for the next school year but tell the Legislature to fix the law by June 2020.

The two sides will square off in oral arguments May 9 with a decision expected no later than June 30.

In legal briefs filed Monday, both sides reiterated arguments that have been made over the past couple of months.

The state says SB 16 enjoys widespread support with bipartisan approval in the Legislature, signed by the Governor, based on recommendations of the State Board of Education, and supported by numerous educational organizations, including KASB. “The near unanimous consensus of all stakeholders is that SB 16 is the final adjustment to bring the K-12 system into compliance with the Kansas Constitution,” the state argued.

Secondly, the state notes school finance expert Kansas Deputy Education Commissioner Dale Dennis calculated an amount in response to last summer’s Supreme Court ruling that called for an “inflation adjustment” as the Legislature was phasing in a new school funding plan to restore funding to 2009 levels agreed to in the Montoy school finance case. SB 16 adopted the exact amount of base state aid amounts calculated by the State Department of Education and approved by the State Board of Education.

Third, it acknowledges there are disagreements on how the inflation amount should be calculated but argues it is not the place of the Supreme Court to resolve them. “By relying on the Department of Education’s inflation calculation, approved by the State Board and Governor, the State has met its burden of sufficiently ‘explain[ing] its rationales for choices made to achieve compliance’ and thereby showing that its chosen remedy in SB 16 is ‘reasonably calculated’ to meet the adequacy requirements of Article 6 as explained by this Court.”

The state’s brief goes on to say, “As this court has explained, compliance with Article 6 is not a mere mathematical exercise. After all, the ‘Kansas Constitution clearly leaves to the Legislature the myriad of choices available to perform its constitutional duty.’”

Fourth, it urges the Court to dismiss the lawsuit, arguing that the facts of the original lawsuit filed eight years ago “no longer reflects the current state of K-12 schools,” and that the Legislature has increased annual state funding by approximately $1 billion, even excluding Local Option Budget aid and Kansas Public Employee Retirement System contributions. It argues the case should be dismissed for two reasons:

One is the separation of powers argument, that continuing supervision by the court, once adequacy has been achieved, interferes with the constitutional authority of the Legislature and Governor to make laws for school funding and educational policy choices.

Two, the state argues continuing judicial jurisdiction would impede the Legislature’s ability to make future changes for educational improvement. “Remaining in the remedial stage of litigation, in which the State must perpetually bear the burden of justifying to the Court any future changes the Governor and the Legislature may wish to make in the K-12 funding formula, will inevitably have a chilling effect on attempts to improve K-12 public education through legislative enactment unless the four school districts that are plaintiffs in this case consent.”

The brief notes that the Legislature has mandated a series of reports and studies and says remaining under the Court’s jurisdiction could “stifle innovation and deter the Legislature from adopting potentially beneficial improvements, out of fear the four plaintiff school districts might object.”

Fifth, it argues that “If any current or future stakeholder believes that the State is not complying with Article 6 and is unable to convince the Legislature and the Governor of their concerns, they should bear the burden of filing a lawsuit and establishing with proof at trial that the educational formula is denying the delivery of a suitable education.”

However, the plaintiffs say the state has missed the mark.

SB 16 makes a “one time increase to Kansas K-12 public education of approximately $92 million in FY 20. After that, the bill makes no effort to increase funding any further. Any further increases in the base are solely attributable to 2018’s S.B. 61. An increase of $92 million in FY 20 does not comply with this Court’s Order in Gannon VI.”

The plaintiff’s brief reviews the Court’s decision last summer in the Gannon adequacy case, which essentially accepted a proposal that state should provide a level of base state funding comparable to funding in 2009, which reflected the Montoy school finance case, as adjusted for inflation. Under its calculation, the state determined it needed to add $522 million, which it proposed to implement over a five-year period, from fiscal years 2018-19 through 2022-23. The Court accepted that amount, but said the plan passed in 2018 needed to be increased to account for inflation during the period from 2017-18 through 2022-23.

Following the Court’s ruling, the Kansas State Board of Education adopted a proposal developed by Deputy Commissioner Dennis that calculated that a total of $363 million was needed to fund the inflation factor based on the Court’s opinion (after considering increased funding provided for 2018-19), using an annual inflation factor of 1.44 percent – the average annual change in the consumer price index from 2011 to 2017.

The plaintiffs agreed with that amount. “Plaintiffs agree with the math utilized by the KSBE to calculate the overall sum of $363 million of “new money” needed to reach the Montoy Safe Harbor. And, Plaintiff’s agree that the initial method of calculating this amount…is a reasonable method for determining the amount of “new money” needed.”

However, the plaintiffs disagree with the way that amount was applied. The State Board adopted a proposal, eventually passed in SB 16, which adds approximately $90 million each year over the next four years to the funding levels adopted last session. That means the cumulative increase ($90 million times four) is $363 million, but the annual increase is $90 million.

The plaintiffs argue that the SB 16 is therefore actually only $90 million in “new funding” because it provides that additional increase only in the first year (Fiscal Year 2020). They say the only way to read the Court’s direction last summer is to ramp up to a $363 million increase at the end of the phase-in period in 2023.

Specifically, the plaintiffs note that $92 million, the additional funding provided next year by SB 16, is only one-quarter of the calculated need of $363 million. Therefore, they say, the state provided just one-quarter of the annual inflation factor of 1.44 percent; in other words, 0.36 percent. They note that is far below projected estimates of inflation.

Finally, the brief states that student achievement in Kansas has continued to decline as a result of underfunding, noting that the percentage of students at low levels on state assessments has increased since 2016.

The plaintiffs ask the Court to declare that SB 16 has not achieved constitutional compliance, but allow it to go into temporary effect for 2020 “since SB 16 appropriately funds one-quarter of the needed inflation for compliance with Gannon VI, by providing a sufficient inflationary adjustment in FY 20 only,” and allow the Legislature an additional year to correctly account for inflation.


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