Category Archives: School funding lawsuit

Take a lesson from Wisconsin

So it looks like Gov. Scott Walker won’t be thrown out of office for getting the state out of business of collecting dues for the teachers union. Good.

Now that the political season is over (for a month or so!), the rest of the nation, including Kansas, ought to see what lessons it can draw. Here’s one: changing the rules concerning contracts and the business affairs of schools can keep teachers in the classroom. For example, districts have saved money by being able to shop for health insurance plans, rather than be the captive of the plans offered by the teachers union. As a result of the savings, they may in some cases not have to lay off teachers, which of course would mean larger classes–something that unions typically rail against. Here’s one story, admittedly from a pro-Walker source, that gives examples of cost savings.

Kansas, for its part, is enduring yet another legal challenge from school districts that want more money. Of course, who can blame them? If your boss offers you a raise, would you say, “Nah, I don’t need the money. You keep it?”

District administrators and teachers both face mandates from other people (the state school board, the Legislature, Congress). If they fail to comply with the requirements of No Child Left Behind–and compliance is at least partially out of their hands–they will be subject to disruptions to their business and professional lives. So of course, they’d like more money — from taxpayers. The Legislature hasn’t been as forthcoming as they’d like, so they turn to the courts.

But this move is all predicted on the assumption that there’s no room for cost-cutting or efficiencies–a heroic assumption, I believe.

Ending last in, first out (LIFO) employment practices, tenure, or the union scale may be all good things, and could save money. So could cutting through the red tape that entangles principals and teachers alike. But it won’t guarantee that all students will end up as “proficient” as defined by a standardized test. It’s foolish to think that any amount of money will guarantee any academic result. The best we can do is to make sure we spent money on education in the least bureaucratic way possible. Having the courts resolve a dispute between the Legislature and the education establishment won’t get us there.


Selecting members of the Kansas Supreme Court

One fallout of the Montoy decision has focused attention on the fact that the selection of members to the Kansas Supreme Court is a secret process without any public input. Dr. Stephen J. Ware of the University of Kansas talks about the judicial selection process in this short video.

Sue your way to … high spending levels

Kansas is developing a new tradition: School districts suing the people, through the Legislature.

The website Kansas Reporter (affiliated, as I am, with the Kansas Policy Institute) has taken note of recent developments. About 60 school districts, or better than 20 percent of all districts in the state–have filed suit. Again. They want another $323 million they say they’re due through past court rulings. Unfortunately for the cause of good government, the rulings are past on one some scholars call the alchemy of “funding adequacy” research. In brief, the districts have (successfully) sold the courts on the idea that there’s a “scientific” method of determining the amount of money required to provide a “suitable” education. To the contrary, though, such decisions are inherently subjective, political, and properly a subject for the Legislature, not the courts.

A follow-up article tells about the members of a 3-judge panel that will hear the lawsuit.

How much is enough? “More”

A collection of school districts operating under the name “Schools for Fair Funding” has said it will file suit–again–against the state of Kansas. Why? It wants more money.

To his credit, Gov. Parkinson has taken a dim view of the lawsuit. The Lawrence-Journal World has more.

For further reading, see this series from the Kansas Policy Institute:

History of Education Finance (PDF), which “traces school funding developments, starting at the inception of statehood in 1863 and leading up to the filing of the above-mentioned Montoy lawsuits.”

Analysis of Montoy vs. State of Kansas (PDF), which “provides a detailed examination of the legal and political forces at play during the Montoy litigation. It also identifies existing barriers that prevent or restrict efforts to reform the system.”

Analysis of K-12 Spending in Kansas (PDF), which “identifies how court-mandated funding increases were spent by Kansas school districts and compares per pupil spending across districts.”

What do we want from education? (PDF), which offers a history of conflicts in schooling and offers recommendations for rethinking what we seek to fund for the purpose of education.

Here we go again

From Education Week, channeling the Associated Press:

A coalition of school districts has voted to file a new education funding lawsuit against the state.

Friday’s vote from members of Schools for Fair Funding was expected after the Kansas Supreme Court refused last week to allow the group to reopen a school finance case that was dismissed in 2006.

John Robb, the lead attorney for the coalition of more than 70 school districts, said the soonest the case would be filed is probably late summer.

That’s one difference between an  organization that relies on government funding and one that doesn’t. Wal-Mart starts selling over-the-counter medications f or $4, and Target and other companies match, hoping to become efficient enough to still turn a profit. When private schools or colleges have a dip in revenues, they make an appeal to donors or find ways to cut costs.

When school districts don’t get as much money as they would like, they could use the occasion to become more efficient. They could make a concerted effort to get the Legislature and KSDE to waive burdensome regulations. They could welcome suggestions for how to save money.

Instead, they complained about the efficiency audits that were to be conducted by the Legislative Division of Post Audit, and got them scrapped. (A few districts, to their credit, invited the auditors in.) And of course, they sue for more money–despite getting significantly more per-pupil money over time.

Is “Adequacy” a Valid Concept?

Kansas is certainly not the only state to be sued by school districts unhappy with the amount of money they’re getting. The state of Washington, for example, is being sued for the third time.

Such lawsuits, says one observer of education policy, depend on four questionable assumptions:

1.     The state needs to spend more money on education, and doing so will improve academic achievement.
2.     The state is already spending current education dollars as efficiently and effectively as possible.
3.     The actual cost of educating every child in the state to standard can be determined and fixed.
4.     It is beneficial for judges and courts to order the legislature to make specific education policies.

I’d say that Kansas has similar problems.

On the question of “the actual cost,” the commentary has this to say:

In making its case against the state, the NEWS [school district] coalition points to the fact that not all students are passing the Washington Assessment of Student Learning (WASL). This, the plaintiffs argue, proves the constitution has been violated and the legislature is failing to provide all students a quality basic education.

NEWS is asking the court to order the legislature to determine the actual cost of bringing all students to standard, and then to pay that cost.

Unfortunately, this request may be impossible to fulfill. Determining what it costs to make sure every student masters basic education material has never been done, simply because there is no school in the nation that can guarantee 100 percent success with students. Students are unique and, yes, human. Many factors, including their own motivation and aptitude, impact their educational success, and these cannot all be controlled by policy.

No education system and no amount of money can guarantee equal outcomes. What they can do is provide equal opportunities, and those opportunities can be based on proven best practices showing what works well when it comes to meeting the needs of unique students.

The idea that a given level of performance can be guaranteed if only funding is “adequate” is folly.

Special interests, and extra special interests

Who said this, of a group of school officials who sued the state for cutting back on aid in a time of plummeting tax revenues?

“They’re saying, ‘We’re not special interests, we’re extra special. We’re supposed to get all the money and everybody else can just divide up the crumbs. It’s clear to me they don’t care about anybody but themselves.”

Take a guess, anyone? Kansas House Speaker Mike O’Neal? Another member of the Kansas Legislature? Taxpayer advocate Bob Weeks? Kansas Policy Institute’s president, Dave Trabert? Yours truly?

Nope. Try David Patterson.

Who’s he? The Democratic governor of New York, battling the education lobby after he withheld some state aid to schools in an attempt to “keep the state afloat.”

New York, like Kansas, has been beset by a coalition of school districts that have sued the legislature, seeking more money.

Breaking into the Silos of Money

If you’re running a school district, it seems like there’s never enough money. The federal law known as No Child Left Behind (NCLB) threatens to shake up your way of doing things should your school fail to meet a multitude of testing targets. Teachers, like anyone, hope for more money in their paycheck each year. And many schools, built decades ago, get hit by rising fuel costs. The Legislature, meanwhile, has cut back on one of the revenue streams you depend on, the Base State Aid Per Pupil, or BSAPP. (Don’t you just love how the education industry is filled with acronyms?)

So what do you do? You might look for ways to economize. Negotiate cheaper deals on supplies. Ask your staff to take a pay cut, as has happened in many businesses. Or … you could sue your customers, who in this case are the taxpayers and their elected representatives. That’s what a number of districts are doing, hoping that the Kansas Supreme Court will re-open the Montoy lawsuit.

An alternative is to tap some of the unspent money that you’ve got on hand. Now, it’s useful to have some unspent money around. If you live in a house and have a mortgage, you might send your bank a check every month. Some of it goes towards the mortgage, but the rest goes to pay property taxes and homeowners’ insurance. You might also save of money for regular, big expenses that hit at once, such as the bill for auto insurance, or winter heating bills.

But how much of a cushion should you have? That’s a debatable question. If your auto insurance is $500 a year, payable once a year, it might make sense to have $400 stashed away a month or two before the bill is due. It would not, though, make sense to have $2,000 saved for auto insurance. And the best reason to have some money saved is so that you can spend it if you have an unexpected drop in income or increase in expenses.

School districts have roughly the same situation. Some cushion is good. And now would be a good time to spend that cushion. The Kansas Policy Institute has chronicled, on several occasions (see, for example, this report back in November) that districts across the state have hundreds of millions of dollars in reserve. Some  of it is legally obligated to pay off construction costs, so it can’t and won’t be touched.

But there’s plenty of money that could be spent now, especially if the Legislature were to loosen the restrictions on what is called “categorical funding,” which some people might call “micromanagement.”

Rather than sue for more, districts ought to spend down some of those reserves. They should also ask the Legislature for permission to spend some of the categorical funding in ways that school leaders see best.

Do districts need more money? Perhaps. But they should make sure they make use of what they have rather than call out the lawyers.

There’s Never Enough, is There?

The state’s largest district, USD 259, votes to sue for more. The best comment from members of the board–who voted 7-0 in favor of taking legal action, came from Lynn Rogers, who said “We can’t keep adding requirements and expect to do that for the same funding.” Combined with the conversation about unencumbered balances and the general fund, it’s logically a call for the Legislature to extend more flexibility to school boards.

Bob Weeks says Kansas schools should not sue. Weeks recommends that schools tap ununcumbered funds and make efficiencies. He also points out to conflicting priorities: “Several legislators have told me that this legislative session shapes up as a battle between schools and the social service agencies. This doesn’t seem helpful and productive.”

Weeks also has comments to the USD 259 board, made by other citizens.  John Todd said “The amount of money you are proposing to spend in this endeavor seems to me to be enough money to pay several full time teachers salaries that could be used to reduce class sizes and help our kids learn.”

Karl Peterjohn pointed out that far from having a smaller budget than last year, USD 259 is proposing a 2 percent increase. And that’s even with the cuts in one funding stream of state aid. He also said he fears a “judicial oligarchy” taking control of Kansas government.

Judicial Power Revisited

In 2005, the Flint Hills Center for Public Policy issued a policy brief titled “Undermining the Judicial Power of the State” (PDF).  In it,  Gerrit Wormhoudt warned that a decision by the Court (such as Montoy) to usurp legislative power could cost the Court the “trust, confidence and espect to which that office is entitled.” Now two law professors have jumped in, expanding the argument.

What follows comes from their op-ed in the Wichita Eagle. “Education policy is job of legislators, not judges“was published on July 8.

“Kansans and Oklahomans have much in common. They share a border, a love for college sports and a commitment, rooted in their pioneer heritage, to the principle that free people must govern themselves.

Unfortunately, Kansans and Oklahomans do not share equal power to shape their affairs. The Oklahoma Supreme Court decided in May to preserve the people’s authority to govern the most important area of state and local government finance: the funding of education. Kansans have not been as fortunate.

A series of school financing lawsuits in Kansas are part of a nationwide plan carried out by teacher unions and education bureaucrats to convince state courts to usurp the Legislature’s authority over education policy and to order a substantial and unwarranted increase in education funding.

In Kansas, this scheme started with a lawsuit alleging that the state’s education funding is insufficient to provide an “adequate” education. This lawsuit has been carried out with complete disregard of the state constitution. And it undermines the state’s system of government, in which the authority to make policy lies with the state Legislature and thus the voter.

The Kansas education lobby beefed up its lawsuit by seizing on constitutional language stating that the “Legislature shall make suitable provision for finance of the educational interests of the state.” Nowhere is it suggested that state courts are responsible for monitoring the amount of school funding.

But the Kansas Supreme Court — in an infamous 2005 opinion replete with bureaucratic jargon but empty of any serious discussion of the structure and history of the state constitution — arrogated to itself the power to make education policy. The court found the state’s education funding inadequate by more than $850 million — one-fifth of the state’s general revenue.

In neighboring Oklahoma, the plaintiffs in a similar court action hoped for a similar result. They relied upon a phrase in their constitution: “The Legislature shall establish and maintain a system of free public schools.” Unlike their imperial Kansas brethren, however, the Oklahoma Supreme Court justices saw through the plaintiff’s gambit. The court explained: “To do as the plaintiffs ask would require this court to invade the Legislature’s power to determine policy. This we are constitutionally prohibited from doing.”

The Oklahoma decision demonstrates that state courts need not placate the demands of the education lobby. It should also remind Kansans that it is time to take back their power to govern themselves.

The Kansas Constitution should be amended to make it clear that the Legislature is solely responsible for making education policy. Perhaps then our robed masters will come to understand that our system is based on self-government and the rule of law, not the rule of lawyers.”

The few reactions on the Eagle’s web site only illustrate the dangers of forgetting the power of the Legislature. Like what they do — or not — they have the responsibility to set policy. Don’t like what they’re doing? Talk to legislators, not judges.

If at First You Do Succeed, Repeat: School Group Lobbies for More

Over a dozen school districts banded together to pressure the Kansas Legislature to spend more on state aid. They got it–more than $800 million more. Now they’ve decided to stay in the lobbying business:

A coalition of Kansas school districts successful in a lawsuit prompting big increases in state funding of public education is shifting its focus exclusively to lobbying, an attorney for the group said Friday.

Schools for Fair Funding, financed in the past with contributions from 19 school districts, filed lawsuits that led to the Kansas Supreme Court ruling the state’s system of funding schools was unconstitutional.


Districts still active in Schools for Fair Funding met last week in Newton to map strategy for the future, said John Robb, a Newton attorney serving as general counsel to the nonprofit organization.

“The unanimous consensus was to keep the group together and shift the emphasis away from litigation and toward lobbying,” Robb said.

Lobbying activities will be financed through voluntary contributions by school districts in Kansas. A recruiting effort hasn’t been launched, but Robb said district superintendents in Wichita, Independence, Salina, Leavenworth, El Dorado, Emporia, Arkansas City, Newton, Augusta, Hays, Great Bend and Kansas City, Kan., expressed support.

School districts are expected to kick in $2 per student of taxpayer money so that they can … lobby for more taxpayer money.

Since the Kansas Association of School Boards already does lobbying, it appears that these districts will be going to the well a second time when it comes to lobbying.

(School funding group switching to lobbying, Topeka Capital Journal, June 9)

Public Money, Public Disclosure

If you take public money, you should disclose your finances. That’s the proposition that the Topeka Capital-Journal used in its battle with the group Schools for Fair Funding. The group spent $3.2 million in tax money to lobby for more state funding for schools. Their activities certainly bore fruit, with the state’s supreme court ruling in their favor, and the legislature appropriating an extra $831 million over four years.

Finally, the group has come to terms with the newspaper:

The Capital-Journal filed suit last year to determine whether Schools for Fair Funding is a public entity subject to the Kansas Open Records Act, given that it is financed with tax dollars.

Under the settlement, approved by Butler County District David Ricke last week, Schools for Fair Funding effectively agreed to provide the newspaper a “clean” set of its business documents.


Senate Minority Leader Anthony Hensley, D-Topeka, and House Speaker Melvin Neufeld, R-Ingalls, praised the settlement’s significance.

“It’s a reasonable outcome,” Hensley said. “I, for one, always believed they were a public entity. The newspaper was right.”

Source: School finance group settles open records lawsuit, Kansas City Star, March 6.

Governments Should Disclose Lobbying

Should units of government that lobby (or sue) the legislature for more of your money be able to hide their spending? That’s the question behind the Topeka Capital-Journal’s ongoing tussle with the school districts that sued the state.

An editorial in the Parsons Sun reminds us of the value of disclosure:


It all comes down to taxpayers’ right to know how elected officials are spending their money.

It’s a principle that’s been reinforced again and again – through laws allowing for public examination of records and through laws allowing for open debate on decisions.

A measure introduced last week in the House would require lobbyists who do work for government agencies or government associations to report how much each is paying them.

It’s an opportunity the Kansas Legislature should take advantage of in order to strengthen public oversight of government spending.

Currently, lobbyists must file reports periodically with the Kansas Governmental Ethics Commission detailing how much they’ve spent on meals, entertainment and the like and on whose behalf.

As a result, the public can search for school districts, cities, counties and groups to which their governmental entities belong to find out how much money lobbyists are spending on behalf of governmental entities.

While positive, this reporting does not tell taxpayers how much the government entities pay lobbyists.

Lobbyists work for all types of government entities.

Smaller towns, counties and school districts join coalitions and leagues with lobbyists, and a few smaller government entities even have lobbyists registered with the secretary of state on their behalf.

Examples of coalitions with lobbyists where taxpayer money pays dues for membership include the Kansas Association of Counties, the Kansas Association of School Boards, the League of Kansas Municipalities, Schools for Fair Funding and many more.

Several large- and medium-size cities, counties and school districts have registered lobbyists, including Topeka, Kansas City, Hutchinson, Johnson County, Hays, Dodge City, Blue Valley schools, Wichita schools, Olathe schools and that list, too, could go on.


At the least, the financial records of units of government should be easily accessible, obviously apparent, and released promptly.

Source: Tracking lobbyists, Parson Sun, March 2, 2007

The Problem with Adequacy Lawsuits

Josh Dunn and Martha Derthick says that there is a big difference between adequacy and equity lawsuits: “As political events, equity cases compelled the redistribution of spending for education, inciting a strong reaction from those property-rich school districts with the most to lose. Adequacy cases have the clear political advantage: they aim to enlarge the educational pie. “

Many in the education world like to complain about No Child Left Behind. But it has become the key to riches:

The standards-and-accountability movement—which spread nationwide through the 1990s and reached a climax with passage of the No Child Left Behind Act (NCLB) in 2002—has provided a political stepstool to adequacy suits.

Why haven’t separation-of-powers arguments gotten further in Kansas, and elsewhere? The incentives aren’t there for the people who have the power to do something, and those who have the power are divided:

Legislatures per se are not normally defendants in the lawsuits, and so cannot mount their own defense in court. State officials who are in charge of the defense do not necessarily have strong incentives to conduct it vigorously. No attorney general has yet won a large following by opposing more spending on schools or supporting the constitutional principle of separation of powers. State superintendents of instruction, who often have a great deal of influence in shaping the defense, have even less incentive to oppose increased spending on schools.

Dunn and Derthick turn their attention to objections to court intervention are handled: “the political question doctrine does not have much force of its own. Courts deploy it or ignore it as they wish and use it only if they are predisposed not to enter into a controversy.” But “Adequacy tied to standards solves the legal and political problems of justiciability.”

Here’s what the pair have to say about Kansas:

On close inspection it becomes clear that there is no evidence of inadequacy without evidence of inequity. Two prominent and recent adequacy cases—from New York (Campaign for Fiscal Equity v. New York) and Kansas (Montoy v. State)—show that when courts attempt to overcome the problem of justiciability either they will founder trying to establish what an adequate education actually is or they will retreat to the legally safe but politically dangerous standard of equity.


In Montoy v. State, the Kansas Supreme Court blurred the line between equity and adequacy even more. The Kansas legislature allowed a variety of different taxes based on local circumstances such as high cost of living, low enrollment, and extraordinarily declining enrollment. But the state supreme court struck all of these down because of their “disequalizing effects.” Normally such accommodations would be allowed under rational basis scrutiny, but the court objected because they could possibly lead to unequal amounts of spending. The supreme court did state that “once the legislature has provided suitable funding for the state school system, there may be nothing in the constitution that prevents the legislature from allowing school districts to raise additional funds for enhancements to the constitutionally adequate education already provided.” However, the court gave no indication at what point “suitable funding” would be reached such that some school districts could spend more than others. For the time being, the court is demanding more spending alone to equalize expenditures across school districts.

What about clauses in the state constitution, along the lines that the state must provide for a thorough and efficient, or sound education?

The Kansas constitution (Article 6) is equally vague: “The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law.” As far as finance, “The legislature shall make suitable provision for finance of the educational interests of the state.”On constitutional language generally, the authors are harsh: “Since education clauses provide little textual substance, it is unsurprising that their analysis by courts is occasionally nothing more than a bald assertion obscured by fallacious reasoning.”
They turn to Kansas:

An example of judicial action with inadequate information is to be found in Kansas, where a willfully blinkered court chose to rely on one consultant’s study, by the firm of Augenblick & Myers (A&M), in ordering how much the legislature should appropriate. In Montoy v. State, the Kansas Supreme Court said it would be guided by the A&M study because 1) it was “competent evidence presented at trial”; 2) the legislature “maintained the overall authority to shape the contours of the study”; 3) it was “the only analysis resembling a cost study” before the court; and 4) the state board of education and department of education had concurred with the results. The implication of this reasoning—other than that legislatures must follow the recommendations of studies that they commission—is that the court was unwilling to seek as much information as possible. The court assumed the reliability of the study and impugned the motives of members of the legislature who disputed its findings. It repeatedly said that it must make its decision “based solely on the record before us,” an artificial but convenient standard peculiar to litigation.

The raising and spending of taxpayer dollars is inherently a political act. That is true whether the money is to be spent on welfare programs, roads, economic development schemes, health programs … or education.

Political actions should be taken by politicians. The place for politicians in our system of government is in the executive and the legislative. One result of these lawsuits, using No Child Left Behind, may be the nationalization of education.

Source: Judging Money, Education Next, 2007 Volume 1.

Are You Adequate? A Dissent on Adequacy Funding Lawsuits

The road to school funding lawsuits is paved with the establishment of state standards. That’s one conclusion from Courtroom Alchemy, an essay in the current issue of Education Next.

James W. Guthrie and Matthew G. Springer say that lawsuits have been common across the country. School funding mechanisms have been challenged (as of mid-2006) in 45 of the 50 states.

Early on the lawsuits were based on equity (discrepancies among districts); these suits have been filed in 36 states.

But that legal theory has given way to lawsuits based on adequacy. “By 2006, the constitutionality of funding mechanisms in 39 states had been challenged on adequacy grounds.”

Guthrie and Springer suggest that these lawsuits will undermine support for education itself:

The movement is becoming a self-serving cause whereby plaintiffs have gained relatively uncontested judicial access to the policy process. Indeed, unsubstantiated claims and unreasonable requests contained in costing-out studies commissioned by plaintiffs have successfully circumvented democratic executive and legislative funding dynamics. The trend threatens to erode public interest in and support for K–12 education policy.

One problem  with these lawsuits, aside from the fact that they seek to take the question of appropriations out of the hands of democratically elected representatives, is that they are based on a questionable use of science. “Contemporary legal petitions for resource adequacy go far beyond the analytic capacity of present-day social science …. For example, the amount of money or configuration of schooling resources needed to compensate educationally for impoverishment, disability, or language deficiency is simply not known say the two professors from Vanderbilt University.

The cost studies apply one of two models: the expert model (ask experts what they would spend) and econometric models. One problem with the models is that they lack “objectivity, robustness, and precision.” They do not meet one key standard of a scientific study: they are often not replicable. The authors cite two competing studies in Texas. Though the two had only minor methodological differences, they produced substantially differing results. “In their current state, cost function analyses are simply inadequate for guiding changes in state education-finance policy.”

The professional judgment models, on the other hand, may be fraught with even more substantial problems. Many are devoid of methodological rigor and injected with self-serving biases, rendering results unworthy of legislative, executive, or judicial consideration. In the politically polarized domain of school-finance litigation, the professional judgment approach has evolved into a den of foxes guarding the henhouse.”

As with the econometric models, the outcomes of the professional judgment models vary substantially even if, in the studies most closely examined by Guthrie and Springer, they are facilitated by only two firms. [(The two firms, by the way, are Augenblick & Myers, Inc. (A&M) and Augenblick Palaich & Associates, Inc. (APA).]

“Unjustified variances such as those displayed in Figure 2 [relating to the appropriate number of staff per 1,000 students] suggest, at a minimum, that there is no science involved in such estimations. “

So where should we go from here? Guthrie and Springer advise …. more research. More research to provide rigor to cost-accounting studies.  But today’s finance scheme only weakly resembles an open market. When students are generally stuck with the school that their residence is assigned to, the benefits of competition–in this case, by schools, for students– is lost. And when competition is lost, so is the most effective means of measuring the cost of a product or service.

On the upside, Guthrie and Springer call for questions of adequacy to be returned to legislatures: Legislative and executive branch deliberations are far better adapted for accommodating uncertainty, deconstructing complexity, and considering the tradeoffs inherent in education policymaking.

Source:  Courtroom Alchemy, Education Next, 2007, Volume 1.

Constitutional Change Rejected

No surprise here:

The Senate Judiciary Committee on Monday voted down a resolution that would have brought the school finance debate back to the Senate floor.

The resolution stated the funding of public education is to be “determined solely by the Legislature.” The measure also asked the Secretary of State to place the issue on the 2008 general election ballot for voters to voice their opinion.

Source: Finance debate blocked from floor, Topeka Capital-Journal, February 13.

Legislature to Affirm its Right to Define “Suitable?”

Will the Legislature affirm its prerogative to establish the school budget? Unlikely, but one representative is putting in an effort.

Sen. Phil Journey, R-Haysville, asked the Judiciary Committee to support his proposal to change Article 6 so it reads that legislators shall provide funding for schools at a level they deem appropriate.

Currently, the article states legislators shall make suitable provision for funding of schools.

And that, of course, lead to the lawsuit, and the Kansas Supreme Court ruling that “suitable” means “whatever a consulting firm says it is.”

Legislative Notebook, Lawrence Journal-World, February 7.

School Coalition Loses One Lawsuit

The coalition of schools that sued the state into increasing its funding by $831 million have failed in their attempt to collect another $3 million in legal fees.

The districts were barred by state law from obtaining legal fees in state court, so the coalition turned to the federal bench to try to recover its costs.

Alan Rupe, attorney for the coalition, argued that his clients were entitled to attorney’s fees because they prevailed in a state lawsuit that simply made the federal case moot.

U.S. District Judge Monti Belot disagreed.

In his ruling Wednesday, Belot said Schools for Fair Funding couldn’t recover legal fees because issues decided in the state case weren’t identical to issues raised in the federal case.

And, since there was never a trial in federal court, no compensation was warranted for Schools for Fair Funding, the judge said.

Meanwhile, a suit filed against the coalition by The Topeka Capital-Journal is still pending.

Source: Judge rules for state on legal fees in school finance case, Wichita Eagle,  February 2.  Schools’ Legal Fees Rejected, Capital-Journal, February 2.

Lock Away Third-Year Spending?

The Kansas Senate approved the idea of using $122.7 million in next year’s budget for the third year of the three-year, $466 million plan the legislature enacted last year. (Of course there is much more to the budget than $466 million; that is just a supplement.)

The idea is both a good one, and of limited value. Good in that it recognizes that there may be a shortfall when the commitment comes due, of limited value because there’s probably no guarantee that it won’t be spent on something else. Then the legislature would have to fill a hole through some other means.

Source: GOP Presents its Wish List, Kansas City Star, January 10.

District Officials Win, Want Legal Fees

The group “Schools for Fair Funding” spent taxpayer money in a legal campaign to get more money, won with the Supreme Court, and won with the Legislature, which committed another $831 million in a four-year period. Now it wants more money, but without opening up its records.

What we know already is that 19 school districts, spent some $3.2 million of public funds between 1997 and 2005 on the funding lawsuit. It wants the state to pay its legal fees, which its lead counsel Alan Rupe says would be less than $3.2 million.

Meanwhile, the Topeka Capital-Journal  is calling for the coalition to make its files part of the public record.

It was our hope to, once and for all, establish SFFF as a public entity, subject to open records law. SFFF has maintained stridently that it isn’t a public entity and not subject to such law.

The energy of its refusal to abide by open records law has, in fact, shocked us. We continue to struggle with its determination to operate in secrecy.

Source: State braces for potential legal bill, Journal-World,  December 30; State braces for potential bill for school finance lawsuit, Kansas City Star, December 30; Schools for fair funding — First step, Topeka Capital-Journal, December 28.

U.S. Supreme Court Declines to Hear Case

Should some cities be able to tax their residents more for the public schools? Does a law restricting their ability to do so run afoul of the U.S. Constitution? The U.S. Supreme Court has declined an opportunity to consider the question.

Here’s an excerpt from a column by James Kilpatrick on the subject, brought to the for by the case of Bergman v. Kansas.

“In one way or another, through its legislature and its various courts, Kansas has been struggling toward “equalization” ever since [Brown v. Board of Education]. In the case just snubbed by the U.S. Supreme Court, he state’s own Supreme Court succinctly explained the state’s most recent effort:

“The changes made by H.B. 2247 included modifications to the weighting components of the finance formula and changes to the authority of certain districts to raise revenue through local ad valorem property taxes. H.B. 2247 modified the funding formula by increasing the Base State Aid Per Pupil (BSAPP), bilingual, and at-risk weightings, phasing in increases in special education funding, eliminating the correlation weighting (while retaining the low enrollment weighting) …”

The question, Kilpatrick says, is whether residents can tax themselves more, or whether their ability to approve increases must be subjected to claims for some measure of egalitarian spending across the state.

Back to Kilpatrick:

“The record in the Kansas case suggests that the state has made Herculean efforts, as a state, to equalize and improve its public schools. Counsel for the petitioners ask the high court: Why should parents in Topeka or Lawrence or Wichita be forbidden voluntarily to enlarge the pot by taxing themselves? The nine justices, perhaps numbed by last week’s argument in school cases from Kentucky and Washington State, would not stay for an answer.”

Source: James J. Kilpatrick, “Two that got away,” Yahoo News, December 13.

Goodbye, Lawsuit. Hello, Lawsuit

The Johnson County Sun editorializes in favor of a creative lawsuit.

First it mentions a fairness argument–we don’t get as much in state aid as we pay in taxs–and then the complaint about the limit on the local option budget to supplement “inadquate state funding.”

So how should JoCo respond? One small group is … you guessed it, filing a lawsuit.

“The case was filed in September by Tristan L. Duncan, a lawyer with Shook, Hardy and Bacon in Kansas City, Mo. She is appealing the Kansas Supreme Court’s denial of a motion to intervene in the school funding litigation in June and its recent decisions on the issue.”

On what basis does the lawyer base her case? The 14th amendment (we could see how an argument might be raised), and the 1st Amendment.

First Amendment? Isn’t that about censorship and the like?

We’re not lawyers, but the rationale seems stretched: “The First Amendment guarantees are violated … by the spending limits imposed by state law and court decisions. The restrictions impede access to knowledge that can lead to truth, a protection provided by the Constitution.”

The complaint also trotts out the class size chestnut, irrespective of the fact that class size reduction (at least of the kind usually enacted) is a tremendously expensive proposition with few measurabl benefits.

Of course, the state can’t please everyone: first it “underfunded” rural western districts; now it’s “underfunding” wealthy districts–all because it does not spend the same amount of money on each. But parity is a folly when different economic situations–namely, housing costs and the general salary scale of the local economy–vary across the state.

Source: “Schools Back in Court,” Johnson County Sun, November 16, 2006.

Note: Bruce Baker (perhaps this professor at KU) shares our skepticism. He writes in the reader reaction portion of the article:

“Quite simply, this is among the most misguided, misinformed and frivolous lawsuits I have ever seen filed in relation to state school finance policy (an issue I follow closely as one of the leading authors of the field). With little question, neither the 1st nor the 14th amendments of the US constitution protect a “right” to unlimited local property taxation for public education.”

School Board Association: More Money, Please

The Kansas Association of School Boards (KASB) is not happy with the current funding situation in Kansas.According to the Augusta Gazette,  the KASB will consider a resolution at its state convention (to be held next month), the draft resolution

“indicates that although the state Supreme Court found the legislature had complied with its orders, it did not rule the amended school finance system provides constitutionally suitable funding; saying only that such a determination would require a new lawsuit. KASB believes the system remains “unsuitable” for the many reasons, which are included in the draft resolution. The resolution also calls for a comprehensive evaluation of state and local tax policies to ensure the cost of funding education and other state responsibilities is appropriately balanced between all tax sources and responsive to economic changes.”

We haven’t looked at the draft, but we suspect that it will call for even more spending increases, echoing the demands of the KNEA.

Koret Task Force Criticizes Adequacy Lawsuits

Are “adequacy” lawsuits good public policy that drives student achievement and school performance? Not according to the Koret Task Force on K-12 Education.

Its new book, Courting Failure: Education Experts Expose the Politics Behind the Nation’s School Finance Lawsuits, members of the task force, who hail from the Hoover Institution and various university departments, lay out the failures and costs of adequacy lawsuits.

If You Thought that the Montoy Decision was Expensive

Lawsuits over school funding are not unique to Kansas.

Frederick M. Hess describes the funding-through-lawsuit phenomenon.

In the 1970s, the theme was equity: “focused on reducing differences in spending between school districts in a given state. This dragged litigants into a “Robin Hood” scenario, seeking to take funds from high-spending suburban districts and give them to poorer districts. This strategy had limited political appeal and modest success, with plaintiffs triumphing only about a third of the time in court.”

In the 1980s, equity lawsuits gave way to adequacy ones, “which skirted divisive politics by promising to raise spending everywhere to some vague standard.”

In Kentucky, the highest court imposed $1.3 billion in new taxes each year, so that students would obtain “sufficient knowledge.”

The problem with these types of lawsuits–Hess counts 40 states that have been subjected to funding lawsuits–is that there is no objective way to determine how much money is enough. “There is no sensible way of determining what amount of spending is ‘adequate,'” he says.

The distribution of taxpayer money should involve politics at one point–at least that’s what you’d think when you consider that public budgets are funded through taxation, the level of which is determined by . . . politicians. But that’s not the view presented by the sue-ers.

“Suits brought by these litigators insist that rather than relying on the political process, ‘experts’ should determine exactly how much money is needed to run a good school.”

Spending decisions are by nature arbitrary. That’s why they are best left to the political process. When judges try to “scientifically” determine the “right” spending level, they cheapen the law.

As if the financial and legal costs of these suits was bad enough, there’s more: “Infusions of new money can actually make it easier to shrug off tough decisions on how schools are run, and how educators are paid, evaluated, and hired.”

Hess warns that No Child Left Behind, by setting out a goal of 100 percent proficiency, will serve the cause of adequacy lawsuits even more: “this aspirational language could ultimately mean that states are violating Constitutional protections in any locale where 100% of students are not deemed proficient in math and reading.”