Tuesday, December 4, 2012

School finance ruling delayed until around New Year’s

By PETER HANCOCK, The Lawrence Journal-World

A long-awaited decision in the pending school finance lawsuit over whether the state is underfunding public schools will evidently wait a little longer.

A ruling in favor of the plaintiffs in the case could have a profound impact on state finances and would almost certainly lead to more heated debate over the separation of powers between the legislative and judicial branches of government.

Shawnee County District Judge Franklin Theis, the presiding judge in the case, sent a letter to attorneys in the case Thursday saying there will be no decision until around the first of the year.

“We had hoped to have an opinion in this case by December 1st, however, the reality of the task, and the practical and logistical means to it, make it more likely our opinion will not be available until sometime around the first of the year,” Theis wrote in a memo to attorneys in the case.

That means the ruling in the case of Gannon v. Kansas will likely come out just before the start of the 2013 legislative session. If the ruling goes against the state, it could have a big impact on issues ranging from the future of Gov. Sam Brownback's tax cuts to legislative proposals to change the way Supreme Court justices are selected.

“I think the Legislature might really work on resisting it,” said Kansas University political science professor Burdett Loomis. “One of the ways they could it is by saying we’re going to change the constitution, or whatever. But I think there will be some substantial resistance.”

Plaintiffs in the case, a coalition of school districts known as Schools for Fair Funding, allege the state is underfunding public schools by as much as $1.5 billion a year. Under the Kansas Constitution, the Legislature is required to make "suitable provision for finance of the educational interests of the state."

Issue revisited

In an earlier lawsuit, Montoy v. Kansas, the Kansas Supreme Court in 2005 declared funding levels at that time violated that constitutional provision and ordered the Legislature to increase school funding by about $853 million a year, phased in over three years.

That led to a highly contentious special session in the summer of 2005, when conservative Republican leaders in the House at first refused to comply with the court’s order, arguing that only the Legislature has constitutional authority to appropriate funds.

At one point, the court issued an order threatening to close public schools and prevent them from opening for the new year, unless or until the Legislature complied.

House Republicans eventually relented and approved a multiyear school funding package to complied with the court’s order. But resentment over that decision has lingered in the Legislature, and some analysts say another ruling against the state could bring those battles back to the forefront.

“The one thing we know from when this issue has come before us in the past is that a lot of Republicans will simply try to change the rules before they have to obey a court order,” said Rep. Paul Davis, D-Lawrence, who was re-elected Monday as House Minority Leader.

Davis said it’s likely the Legislature will have to reopen the issue of the tax cuts this year to address technical errors in the law that was passed in 2012. But he said a ruling against the state in the school finance case probably would not cause the GOP majority to back away from any of those cuts, and likely would only stiffen their resolve.

“A court ruling saying that funding for education has to be increased is going to meet a good deal of resistance from Republicans in the Legislature,” Davis said. “I think we’re looking at some kind of a showdown, and I’m not sure how that gets resolved.”

Judicial selection

Some observers think a school finance ruling could also add momentum to proposals for changing the way judges are appointed to the Supreme Court and Court of Appeals.

In 2011, with Brownback pushing for changes, the House approved a proposed law to have the governor appoint Court of Appeals judges, subject to state Senate confirmation. It failed in the Senate, but legislators expect the proposal to be debated next year.

A similar change for the Kansas Supreme Court would require a constitutional amendment.

Rep. Ray Merrick, R-Stilwell, the newly elected Speaker of the House, said he expects to see legislation to change the way Court of Appeals are selected come up again in 2013.

“The judge thing is probably a given,” he said. But he said he didn’t know whether any constitutional amendments, which require a two-thirds majority in both chambers for passage, would be worked in the upcoming session.

For the most part, discussions about the judicial selection process have been held in the context of court decisions on abortion and other kinds of social issues. But Loomis said another school finance ruling that orders the state to increase education funding would add momentum to efforts to overhaul the judge-selection process.

“I think that school finance is a far more powerful motivating force,” he said. “I just think the 2005 and 2006 decisions (in Montoy) really angered a lot of Republicans.”

The Montoy decision resulted in raising the basic funding formula, known as “base state aid per-pupil” by $394 (to $4,257 from $3,863, where it had been since 2002-03) in the 2005-06 school year. Later increases resulting from Montoy brought the base funding amount to $4,400 in 2008-09. And it was supposed to go up to $4,492 after that.

But districts never received the later increase because the economy turned sour in 2008 and revenues flowing into state coffers began to plummet.

By the 2011-12 school year, after a series of cuts in school funding, base funding was cut to $3,780 per pupil, the lowest level since the 1990s.

For the current year, lawmakers added back $58 per pupil, raising the base amount to $3,838, still below the Montoy starting point.

Effect on students

During the trial in the new lawsuit, plaintiffs argued that those cuts have had a disproportionate impact on low-income and minority students, forcing districts to lay off teachers and increase class sizes, and to cut or cancel programs like all-day kindergarten and after-school tutoring. That, they argued, has translated into flat or declining test scores among those students.

Attorneys defending the state countered that Kansas has met its duty under the constitution because all 285 school districts are fully accredited and are providing all the classes and programs required by law. In other words, all students have an equal opportunity to receive a suitable education, even if they don’t achieve equal outcomes.

The state also argued that there is no statistical correlation between increasing education spending and raising student achievement.

The trial took place over most of the month of June, with dozens of witnesses providing testimony and more than 1 million pages of depositions, motions and pleadings entered into the record.

Just before the trial got under way, Gov. Sam Brownback and the Kansas Legislature approved a multibillion-dollar package of tax cuts that many experts believe will result in large budget deficits and force further cuts in education spending in the next two or three years.

Whichever way the court rules, however, the decision will almost certainly be appealed to the Kansas Supreme Court, where a final ruling could take until sometime in 2014.

Scott Rothschild contributed to this story.