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Kansas’ Unconstitutional System of School Funding: Revealing the Decades-Long Fight for Fair Funding

March 1, 2013

Leah Rosenzweig

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Today, the sequestration is set to take effect.  The sequester will cut funding for education by a total $3 billion.  The cuts will bear an array of deafening consequences for millions of our nation’s most vulnerable children.  Such consequences would dissolve or downsize programs for students experiencing high-poverty or homelessness, English language learners, and special education students.  What some may not recognize is that these federal cuts will exacerbate the predicament of several states whose funding schemes have proven inadequate for decades.

On January 11, 2013, Kansas’ public school funding system was found unconstitutionally low.  For decades now, the issue has repeatedly returned to the courts with little to no compliance from the state. School funding is an essential element of providing equal educational opportunities to all students. While the state of Kansas has a long history of allocating resources unequally, recent funding cuts call into question the state’s priorities.    

Since 1972, Kansas’ public education funding system had been repeatedly challenged as unconstitutional.  Despite a long history of court decisions and legislative propositions aimed at equalizing educational opportunities, Kansas schools are still fighting for their constitutional right to “suitable provision for finance of the educational interests of the state (Article 6, Section 6).”  Facing significant cuts to school funding of over $455 million since the last court ruling in the case Montoy v. Kansas, the state’s depleted resources further jeopardize those children most financially vulnerable and unable to access education.  Over forty years and numerous court cases later, will the state become more receptive to prioritizing monetary provisions for some of the most vulnerable and protected of our country’s children?

Patterns of Constitutional Noncompliance

Kansas has a long history of evading its constitutional obligations.  In 1972 Caldwell v. State held Kansas’ system of funding public schools was unconstitutionally low, as it did not procure a sustainable amount to finance the state’s pupils, regardless of economic status or ability.  The Kansas legislature responded the next year by passing the School District Equalization Act (SDEA), which sought to remedy disparities within the state’s system of public school funding.  In 1992, a trial court’s “Opinion in Advance of Trial,” held that the duty by the Legislature to each child to furnish him or her with an educational opportunity is equal to that owed every other child.  In response, the state adopted the School District Finance and Quality Performance Act (SDFQPA), the formula for computing General State Aid and Supplemental General State Aid for the 289 unified school districts in Kansas.   It established base state aid per pupil, transportation guidelines, bilingual education programs, and weighed standards for at-risk students and free meal eligibility.  Even after the adoption of the SDFQPA the state embarked on another course of noncompliance.

Again in 2003, the courts determined that the state’s funding scheme blatantly violated the Kansas Constitution.  In this case, Montoy v. Kansas, the Kansas Supreme Court struck down the SDEA for providing little to no opportunities for children with disabilities and other special needs. The inequitable distribution of resources failed to provide all Kansas children with a suitable education.  In 2006, in the last of five rulings associated with this litigation, Montoy forced the state legislature to increase education funding annually to $755.6 million, an increase of 20% a year.  Almost one-third of the increase would benefit mid-size and large districts to bolster achievement of their disproportionately low-income youth, English Language Learners, and special education students.  Yet, before the funding scheme ordered in Montoy v. State could be fully implemented, the state cut funding again.  The $455 million cut resulted in Kansas’ current school funding inadequacies.

Seeking Fair Funding Today

Four years after the end of Montoy v. Kansas, a new case began to take shape.  Gannon v. Kansas charges that the state has violated the Kansas Constitution by neglecting to secure every child’s right to an adequate education.  Furthermore, the case seeks to address the $455 million cut enacted in 2006 and to return the state’s school funding scheme back to its constitutionally mandated level.  In a ruling on January 11, 2013, the state’s funding scheme for public schools was deemed unconstitutionally low.  The decision also held that the students were entitled to immediate relief because “school opportunities do not repeat themselves,” and it chastised the state for “experimenting with [our] children [who] have no recourse from a failure of the experiment.”  The case demands the implementation of a revised funding scheme at a level of $14,045 per pupil.  Schools for Fair Funding, Inc. and a number of other advisory organizations have supported this case. 

Despite recent success, Gannon will advance through the courts with staunch opposition.  According to an Associated Press report in The Daily Union, Republican state legislators have proposed an amendment to the Kansas Constitution designed to stymie the pending lawsuit in Gannon v. Kansas. The amendment would add a new sentence to the constitution’s education article, placing the power to set spending on schools exclusively in the hands of the Legislature.  Jon Robb, attorney to the public school districts and students suing the state, criticizes the new proposal as a “power play,” but is not threatened.  Robb said that even if lawmakers put the measure on the ballot and voters approve it, his clients still have legal issues to pursue, specifically the issue of whether legislators designed their school funding scheme arbitrarily.  Those who proposed the amendment renounce the idea of a “power play,” claiming that the revision would prevent the courts from stepping into decisions that the constitution meant to reserve for elected officials.  Supporters foresee that the new measure will be on the ballot by August 2014.

Recent Developments

With states no longer meeting their constitutional obligations toward students, the unconstitutionality of the funding scheme has significantly affected more than just money and classroom resources.  Attorney Alan Rupe, who represents the 32 students and 54 school districts bringing this case, explains, “The kids that are disadvantaged in Kansas don’t have to be.” He added that providing quality education to all “has been done when there have been resources to do it.”

The modern era of school funding cases began with decisions in California in 1971 and in New Jersey in 1973.  In the same year, The U.S. Supreme Court ruled, in Rodriguez v. San Antonio, that education is not a fundamental right under the federal constitution and thus merits a funding scheme that permits accessible education to all youth.  Since 1989, though, plaintiffs have won about two-thirds of school funding decisions.  Many of these victories resulted, in part, from a shift in legal strategy away from “equity” claims to claims which emphasize the right to an “adequate” education.  Still, funding victories are infrequent and rely heavily upon advocates to pursue alternatives strategies in amending state constitutions.  This year there have already been two significant plaintiff victories in school funding cases:

On January 11 after decades of litigation posed against the state, the district court found the Kansas public school funding scheme unconstitutional.  The state has filed a notice of its appeal to the Kansas Supreme Court.  The district court’s order will be stayed pending a final decision by the Supreme Court.

On February 4, a state court ruled the Texas public school funding scheme did not meet the Constitution’s requirements for a fair and efficient system that provides a general diffusion of knowledge.  The provisions at issue stem from $5.4 billion in cuts to education imposed by Legislature in 2011.  Lawyers from about 600 public school districts said the bottom 15 percent of the state’s poorest districts tax an average 8 cents more than the wealthiest 15 percent of districts but receive about $43,000 less per classroom.  Consequentially, the court also found that the school system had generated an illegal state property tax by imposing a growing tax burden on local districts.  A ruling from the high court will be released by the end of the legislative session in May, 2014.  Until then, the state’s public school funding scheme will remain the same.

Sen. Rodney Ellis (D-Houston) says the February 4 decision confirms the long standing claim of his party and pro-funding reform advocates.  “Hopefully this latest in a long line of decisions will force the legislature to truly and systematically address the inequities in our school finance system to ensure that every child in every school-regardless of wealth-has access to a top-notch education.”

The Educational Opportunities Project recognizes that equitable education requires adequate school funding.  The landmark decisions in Kansas and Texas are perhaps proof of state’s progressive compliance.  Monetary provisions must be secured for all children, whether they receive a free lunch or not.

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