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Can We End School Litigation Now? That and More Questions from the Kansas Supreme Court

Kansas Supreme Court Justice Dan Biles asked how much would be enough for the state to demonstrate it has complied with a string of court orders to make school funding adequate. (Charlie Riedel, Associated Press)

Story by Stephen Koranda and Celia Llopis-Jepsen

A fresh push by school districts to get Kansas to pony up more money for public education met with skepticism Thursday from the Kansas Supreme Court.

Justices had pointed questions for both sides in the lawsuit that began in 2010 and has already gone through multiple rounds of oral arguments and rulings.

The justices, who so far have consistently ruled in favor of the districts, may be ready for it to be over.

Justice Eric Rosen called it frustrating that the funding goal that school districts argue for seems to be a moving target.

“Is there ever ‘crossing the finish line’ in these types of cases?” Rosen asked the districts’ attorney, Alan Rupe. “Or are you going to be back here three or four years down the road, making the same argument you just made?”

Rupe responded that all the court has to do is tell lawmakers to redo the inflation adjustment and districts would be satisfied.

“I think we’re getting real close,” Rupe said.

The question at hand in Gannon v. Kansas is whether the state has done enough to finally end a nearly  decade-long lawsuit over school spending.

Last June, the justices ordered the state to increase funding to account for inflation. Lawmakers did so this spring.

So the attorney representing the state, Toby Crouse, argued it should be “case dismissed.”

But the question is whether lawmakers added enough.

Rupe, who’s been fighting the state for more education funding for three decades, questioned the state’s inflation calculations and asked the justices to make lawmakers recalculate when they return for the 2020 legislative session.

How much is enough?

Lawmakers took a major step last year, by promising to phase in a half billion dollars for schools.

That got close to ending the lawsuit, except for the inflation problem that justices identified.

Crouse said the plan to add $90 million per year for four years should end the litigation.

He argued that approval this year from a bipartisan group of lawmakers and Democratic Gov. Laura Kelly give credence to the state’s solution.

“Everyone agrees that this is what satisfies not only the constitution,” Crouse said, “but also the best interests of the children.”

Rupe said the state continues to fall short because its new solution only calculated inflation for part of the funding increase to schools, not overall spending.

“You don’t figure the inflation on a loaf of bread by taking one slice and figuring the inflation on that slice,” Rupe said. “It’s on the whole loaf of bread.”

School districts contend spending ultimately has to reach levels consistent with a court ruling from the mid-2000s that dramatically increased school funding and ended a previous lawsuit, Montoy v. Kansas.

Hitting that target based on the Montoy agreement would take $3.7 billion in total annual funding by 2023, the districts argue. And it would shield the Legislature from litigation. But hitting that target would take another $270 million in annual funding by 2023 over what the state has promised.

Rupe says that’s an important difference, because $270 million could pay for 5,400 teachers.

Justice Dan Biles was skeptical the state needs to spend that much to meet constitutional requirements.

“That safe harbor number,” Biles said, “doesn’t necessarily mean that’s the minimum level necessary to comply with the constitution.”

Should the court trust the Legislature to keep its promises?

Even if they sign off on lawmakers’ latest fix, justices questioned the state’s request to dismiss the lawsuit.

Biles said the state would not be in full compliance with the court until it had paid out all the money in the school spending deal, which will take several years. 

“I’ve got to tell you, I don’t have a lot of sympathy for the idea of dismissing this lawsuit,” Biles said.

There’s fear the governor and the Legislature might go back on their promises for more robust funding. They’ve done it before.

School districts filed the current suit, Gannon v. Kansas, in 2010, after governors Kathleen Sebelius and Mark Parkinson slashed school funding amid the global financial crisis and recession. The districts argued those cuts violated commitments the state made to end the Montoy lawsuit.

The district court and Kansas Supreme Court agreed. In ruling after ruling, they've pushed the state to restore hundreds of millions of dollars to its school funding formula. That included restoring targeted money meant to put poorer areas of the state on more equal footing with wealthier ones in terms of resources for education.

What if, Biles wondered, the court drops the case and the Legislature goes back to block grants or other funding schemes that have been found unconstitutional? Plaintiffs would have to start over at district court.

“When what the Legislature did is something we've already said they can't do,” he said. “So that's my problem.”

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