By Tim Carpenter
The Topeka Capital-Journal
TOPEKA — The Kansas Supreme Court returned to the high-stakes debate on public school finance Tuesday with oral argument on the new five-year, $525 million law that provoked skepticism among justices about whether it met constitutional standards and raised questions about why lawmakers ignored their own education consultants while developing the plan.
The financial remedy to violations of the Kansas Constitution passed by the 2018 Legislature and signed by Gov. Jeff Colyer, known as Senate Bill 423, was characterized as “substantially compliant” by Solicitor General Toby Crouse, who represented the state in defense of the law.
He urged the Supreme Court to accept the latest attempt to meet mandates for educating children and to dismiss the lawsuit roiling state government for eight years.
“The funding formula the Legislature passed and the governor signed is adequate, it is equitable and, third, that dismissal is appropriate,” Crouse said.
Alan Rupe, a Wichita attorney representing the Hutchinson, Wichita, Dodge City and Kansas City, Kan., districts at the three-hour hearing in Topeka, countered the law would underfund K-12 education by more than $1 billion and violated equity requirements of Article 6 of the state constitution. Kansas lawmakers voted for the plan after rejecting advice of hand-picked consultants who recommended the state spend more than amounts contained in the law, Rupe said.
He said the decision by legislators to ramp up funding over five years was based on a premise it was acceptable to doom nearly 75,000 students to academic failure at end of that period. He said the Republican-led Legislature and the GOP governor chose a financial scheme that would deny students across the state access to reasonably similar educational opportunity through similar tax effort.
“It’s just not enough money to drive the results,” Rupe said. “That’s the point that was the problem when we filed this in 2010 and it’s the problem today.”
The Supreme Court’s deliberations occur as the state moves closer to end of the fiscal year June 30. The new school finance law is scheduled to be implemented July 1, but an adverse ruling by the Supreme Court could jeopardize start of classes statewide in August. If the Supreme Court were to strike down the law, the Legislature could convene a special session in June to consider options. The justices could accept the law as a meaningful effort to correct inadequacies, implement the first year of the plan and order the 2019 Legislature to tackle shortcomings.
In addition, the Supreme Court could ask a lower court to dig into details of a solution.
In October, the Supreme Court released a pivotal decision in Gannon v. State that held a $300 million, two-year increase in state aid to schools adopted by the 2017 Legislature wasn’t reasonably calculated to enable all K-12 public school students to receive a suitable education.
During oral argument on the 2018 Legislature’s expanded financial package, the state’s solicitor general said the infusion of money into the education system would produce positive academic results. It’s a line of thought contrary to what some conservative legislators believe, which is that money doesn’t guarantee success.
“So, the state agrees that money makes a difference?” said Justice Dan Biles. “The court has said that money makes a difference, and we’re not here to argue differently,” Crouse said.
Biles had difficulty understanding why the Legislature and Colyer reacted to last fall’s court ruling by adopting a five-year, rather than immediate, solution to problems in the school-finance system.
“You’re funding today’s number five years from now, right? How does that make sense?” Biles said.
Justice Eric Rosen expressed frustration that state lawmakers dismissed insights of the consultant hired by the 2018 Legislature. A Texas A&M University professor hired by the Republican leadership of the House and Senate recommended substantial increases in state aid to meet academic standards embraced by the Kansas State Board of Education and the Supreme Court.
The Legislature nearly 15 years ago ditched suggestions of consultants looking at the baseline cost of educating kids, he said.
“If this isn’t kind of a deju vu we’ve all been here before moment, I don’t know what is,” Rosen told Crouse. “You all are always battling your own expert. It puts it in a posture that doesn’t make good litigation sense. It seems like you base your constitutional compliance to the floor based on what you’re willing to spend and not on what your own expert says its going to cost.”
Crouse said the Legislature used its authority to appropriate tax dollars to education in a way most likely to result in opening of schools for the upcoming academic year. The plan built on a previous school-finance formula the Supreme Court found to be constitutional, he said.
In separate exchanges with the justices, lawyers for the state and the plaintiffs agreed the Supreme Court could strike as unconstitutional a section of the bill referred to as a “non-severability” clause. Intent of legislators was to block implementation of the entire bill if the Supreme Court struck down portions of it based on an argument it was inequitable.
Biles said it was like “strapping on a suicide vest, putting a few dozen triggers on it and daring us to push one.”
In April, Colyer signed Senate Bill 423 to increase state appropriations to districts over five years until the pool climbed by $525 million. The governor signed a companion bill correcting an $80 million mistake in the earlier education spending bill.