IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

DIVISION SIX

Eric and Ryan Montoy, et al.,                    )

                                                                     )

                                            Plaintiffs,           )

                                                                     )

v.                                                                       )         Case No. 99-C-1738

                                                                      )

The State of Kansas, et al.,                           )

                                                                      )

                                            Defendants.         )

_______________________________)

MEMORANDUM DECISION AND ORDER

           This case appears before the Court upon remand from the Kansas Supreme Court for further proceedings. The four issues to be considered at this time are: (1) the appropriate level of judicial scrutiny for disparate impact and other claims; (2) the constitutionality (equity and suitability) of statutory funding schemes, including (a) general purpose funding, (b) capital outlay statutes, (c) sales tax supplements, and (d) special education funding; (3) the alleged legislative invasion of the State School Board’s powers; and (4) whether the statutory funding schemes violate the Due Process Clause. After careful consideration, the Court finds and concludes as follows: 

CONCLUSIONS OF LAW

           This Court set out the historical background for education in Kansas in Mock v. Kansas, Case No. 91-CV-1009 (Shawnee County District Court, October 14, 1991). This background, which demonstrates the significance of education in Kansas, is as follows:

Early School History

The history of education in Kansas predates statehood. Pioneer schools existed even prior to the time the territory was organized. In fact, schools were often organized and built well before taxes were collected for their operations. Heritage of Kansas, (Emporia, Kansas, State Teachers College, 1963). Provisions in the organic Act and the Act for the Admission of Kansas Into the Union included provisions related to public schools. The Organic Act, Section 34, provided that certain sections of land should be reserved for educational purposes.

The Act for Admission of Kansas into the Union, in paragraph three, repeated this reservation of land for educational purposes. During territorial days, the territorial legislature created the office of Territorial Superintendent of common Schools. This officer subsequently was authorized to certify teachers and to organize local school districts. Education has always been a very high priority for Kansans. In fact, shortly after statehood there existed over nine thousand schools and over twenty-seven thousand school board members. Every child had a school within walking distance of his or her home.

Constitutional History

There were four constitutional conventions, the first three of which were unsuccessful. It is important to note, however, that all three constitutions issuing from these ill-fated conventions contained mandatory provisions for education.

In 1859, the Wyandotte Constitutional convention met to draft a constitution to submit to a vote of the residents of the Kansas territory. The constitution used as a model the Ohio constitution, which itself was modeled after the New York constitution. Kansas Constitutional Convention: A Reprint of the Proceedings and Debates of the Convention Which Framed Constitution of Kansas at Wyandotte in July, 1859. (Kansas State Printing Plant, Topeka, Ks. 1920) at page 697.

The Ohio constitution, however, contained only two short sections on education. Id. at 687. Our founders desired more and thus premised their proposed, education article on a combination of provisions from Iowa, Oregon, Michigan, Wisconsin and California. Id. In explaining the scope and effect intended for the proposed constitution, one framer stated, “It has been the aim of the majority

of this body to make this Constitution the draft, the outline of great civil truths and rights.” (Emphasis added).

Constitutional Provisions Adopted in 1859

In the Ordinance to the Constitution (the official legislative act which adopted the constitution), three of eight sections, including the first section, dealt directly with elementary public education. The new constitution contained an entire article, Article 6, solely concerned with education. Section 2 stated “The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools.” The bulk of the remainder of the article dealt with the financing of schools.

Some of the original constitutional provisions on education have since been amended. The relevance of the earlier text to this case is that it clearly demonstrates the treatment of public school education as a paramount duty of the legislature which has been continuous from the beginning of statehood and before.

Amendments to the Educational Article in 1966: The Current Text

The present text of Article 6, the education article, dates from amendments made in 1966. House Concurrent Resolution No. 537 stated the intent of the legislature in seeking amendment of the education article: that the Kansas legislative council is hereby directed to make a study of the scope, function, and organization of the state in supervising education to comply with the constitutional requirement of a uniform system of public schools. The Education Amendment to the Kansas Constitution, Publication No. 256, Dec. 1965 Kansas Legislative Council, page v.

The committee assigned to review and recommend changes to the education article stated that by including an article on education in the original Kansas Constitution “the people secure[d] themselves what is of first importance by placing binding responsibilities on the legislative, executive, and judiciary departments.” Education Amendment at page 2. The committee further noted, “[t]he constitution of 1861 placed a responsibility on the legislature to establish a uniform system of schools,” and that “equality of educational opportunity is a goal which has been generally accepted.” (Emphasis added). Id. at 3.

After several floor amendments, the current Education Article was finally adopted, submitted to a popular vote, and ratified by the people, all in 1966. A careful examination of the current text of the article reveals four essential, clear, and unambiguous mandates from the people (the source of all power in our democratic form of government):

Section 1. Schools and related institutions and activities. 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.

Section 2. State board of education and state board of regents. (a) The legislature shall provide for a state board of education which shall have general supervision of schools . . . and all the educational interests of the state, except educational functions delegated by law to the state board of regents. (Emphasis added).

Section 5. Local public schools. Local public schools under the general supervision of the state board of education shall be maintained, developed and operated by locally elected boards. When authorized by law, such boards may make and carry out agreements for cooperative operation and administration of educational programs under the general supervision of the state board of education, but such agreements shall be subject to limitation, change or termination by the legislature. (Emphasis added).

Section 6. Finance. (b) The legislature shall make suitable provision for finance of the educational interests of the state. No tuition shall be charged for attendance at any public school to pupils required by law to attend such school, except such fees or supplemental charges as may be authorized by law. The legislature may authorize the state board of regents to establish tuition, fees and charges at institutions under its supervision. (Emphasis added).

Mock v. State.

           The Court in Mock also considered the then relevant authority:

Kansas Case Law

No controlling authority [at the time of Mock] exists in Kansas interpreting the meaning of these constitutional provisions. Diligent research, however, discloses the following general statements of principles from our high court which help light the path to understanding.

In the context of a challenge to unequal educational opportunities based on race, Justice Valentine, in 1881 (more than seventy years before Brown v. Board of Education, 347 U.S. 483 (1954)), rhetorically asked,

And what good reason can exist for separating two children, living in the same house, equally intelligent, and equally advanced in their studies, and sending one, because he or she is black, to a school house in a remote part of the city, past several school houses nearer his or her home, while the other child is permitted, because he or she is white, to go to a school within the distance of a block? Board of Education v. Tinnon, 26 Kan. 1, 21 (1881).

More recently, the Kansas Supreme Court stated, “[t]he ultimate State purpose in offering a system of public schools is to provide an environment where quality education can be afforded to all.” Provance v. Shawnee Mission U.S.D. No. 512, 231 Kan. 636, 643 (1982). In a similar vein, the Kansas Supreme Court has also held “[t]he general theory of our educational system is that every child in the state, without regard to race, creed, or wealth shall have the facilities for a free education.” (Emphasis added). State v. Smith, 155 Kan. 588, 595 (1942).

Although the constitutions of the other states of the union vary in content and wording, and in fact [there are] none of the same precise text as that set out in the present Kansas Education Article, it is, nonetheless, instructive for us to examine, preliminarily, relevant authorities from other states, applicable at least by analogy. (For a complete catalog of the various comparative constitutional provisions, see generally Pauley v. Kelley, 255 S.E. 2d 859, 884 (W. Va. 1979).

The Cases from Our Sister States

Forty-nine of our fifty states include education provisions in their constitutions. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 112 (1973) (Justice Marshall, in dissent). The lone state currently without such a provision, South Carolina repealed its education article in response to the decision of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954). Of these forty-nine states, at least ten with school financing systems somewhat similar to that existing in Kansas have ruled those systems unconstitutional for varying reasons. See DuEree v. Alma School Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983); Serrano v. Priest, 5 Cal. 3d 584, 96 Cal. Rptr. 601, 487 P.2d 1241 (1971); Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977); Rose v. Council for Better Educ, 790 S.W.2d 186 (Ky. 1989); Helena Elementary School Dist. No. 1 v. State, 769 P.2d 684 (Mont. 1989); Robinson v. Ca-hill, 62 N.J. 473, 303 A.2d 273, cert. denied, 414 U.S. 976, 94 S. Ct. 292, 38 L.Ed.2d 219 (1973); Seattle School District No. 1 v. State, 90 Wash.2d 476, 585 P.2d 71 (1978); Pauley v Kelley, 162 W. Va. 672, 255 S.E.2d 859 (1979); Washakie County School Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo.), cert. denied, 449 U.S. 824, 101 S. Ct. 86, 66 L.Ed.2d 28 (1980); and Edgewood Independent School District v Kirby, 777 S.W.2d 391 (Tex. 1989).

Other state courts have reached different results. See Shofstall v. Hollins, 110 Ariz. 88, 515 P.2d 590 (1973); Luian v. Colo. State Bd. of Educ., 649 P.2d 1005 (Colo. 1082); McDaniel v. Thom, 248 Ga. 632, 285 S.E.2d 156 (1981); Thompson v. Engelking, 96 Idaho 793, 537 P.2d 635 (1975); Hornbeck v. Somerset County Bd. of Educ., 295 Md. 2d 597, 458 A.2d 758 (1983); Board of Educ, Levittown v. Nyquist, 57 N.Y.2d 27, 453 N.Y.S.2d 643, 439 N.E.2d 359 (1982); appeal dism'd, 459 U.S. 1138, 103 S. Ct. 775, 74 L.Ed.2d 986 (1983); Board of Educ. v Walter, 58 Ohio St.2d 368, 390 N.E. 2d 813 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 665, 62 L.Ed.2d 644 (1980); Fair School Finance Council of Oklahoma, Inc. v. Oklahoma, 746 P.2d 1135 (Okla. 1987); Olsen v. State, 276 Or. 9, 554 P.2d 139 (1976); Danson v. Casey, 484 Pa. 415, 399 A.2d 360 (1979); Richland County v. Campbell, 294 S.C. 346, 364 S.E.2d 470 (1988).

A review of all the cases reveals a checkered history for equal protection challenges, while attacks grounded squarely on specific state constitution education articles have generally fared better for the challengers. In these latter cases, the precise wording of each constitutional provision has been highly important. Several cases, which this Court finds most persuasive, deserve more detailed attention.

In Rose v. Council for Better Education, 790 S.W.2d 186 (1990), the Kentucky Supreme Court, in interpreting the education article of their constitution held the entire public school system was unconstitutional as it was then organized and financed by the legislature. Their constitution simply stated "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state." Rose at 200.

The rationale of the Kentucky decision was that the school system in Kentucky as operated was not "efficient" and therefore not constitutional. Rose at 203. An efficient system, in the eyes of the Kentucky court includes: sole responsibility in the General Assembly; free common schools to all children; schools available to all children; all schools substantially uniform; equal educational opportunities for all children, regardless of place of residence or economic circumstances; ongoing monitoring by the general assembly to prevent waste, duplication, mis-management, or political influence; all children having a constitutional right to an adequate education; and the provision by the general assembly of sufficient funding to assure adequate education.

In Edgewood School District v. Kirby, 777 S.W.2d 391 (Tex. 1989), the Texas court examined their Education Article which provided:

A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools. Edgewood at 393.

                        In interpreting that provision the court observed:

If our state's population had grown at the same rate in each district and if the taxable wealth in each district had also grown at the same rate, efficiency could have probably been maintained within the structure of the present system. That did not happen. Wealth, in its many forms, has not appeared with geographic symmetry. The economic development of the state has not been uniform. Some cities have grown dramatically, while their sister cities have remained static or have shrunk. Formulas that once fit have been knocked askew. Although local conditions vary, the constitutionally imposed state responsibility for an efficient education system is the same for all citizens regardless of where they live. Edgewood at 396.

We conclude that, in mandating "efficiency," the constitutional framers and ratifiers did not intend a system with such vast disparities as now exist. Instead, they stated clearly that the purpose of an efficient system was to provide for a "general diffusion of knowledge." (Emphasis added). The present system, by contrast, provides not for a diffusion that is general, but for one that is unbalanced. The resultant inequalities are thus directly contrary to the constitutional vision of efficiency. Id.

                        Following which, the Court held:

Efficiency does not require a per capita distribution, but it also does not allow concentrations of resources in property-rich school districts that are taxing low when property-poor districts that are taxing high cannot generate sufficient revenues to meet even minimum standards. Id. at 397.

Children who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds. Certainly, this much is required if the state is to educate its populace efficiently and provide for a general diffusion of knowledge statewide. Id.

Under article VII, section 1, the obligation is the legislature's to provide for an efficient system. In setting appropriations, the legislature must establish priorities according to constitutional mandate; equalizing educational opportunity cannot be relegated to an "if funds are left over" basis. We recognize that there are and always will be strong public interests competing for available state funds. However, the legislature's responsibility to support public education is different because it is constitutionally imposed. Id. at 397.This does not mean that the state may not recognize differences in area costs or in costs associated with providing an equalized educational opportunity to atypical students or disadvantaged students. (Emphasis added). Id. at 398.

Finally, with respect to the contentions raised concerning the importance of "local control" of Texas schools, the Court noted:

Some have argued that reform in school finance will eliminate local control, but this argument has no merit. An efficient system does not preclude the ability of communities to exercise local control over the education of their children. It requires only that the funds available for education be distributed equitably and evenly. An efficient system will actually allow for more local control, not less. It will provide property-poor districts with economic alternatives that are not now available to them. Only if alternatives are indeed available can a community exercise the control of making choices. Id. at 398.

In Seattle Sch., Dist. No. 1 of King City, v. State, 585 P.2d 71 (Wash. 1978), the Washington Supreme Court reviewed constitutional provisions which provided:

It is the paramount duty of the state to make ample provision for the education of all children residing within its borders .... Seattle at 83.

In commenting upon the "duty" imposed by their constitution, the Washington court held:

By imposing upon the State a paramount duty to make ample pro-vision for the education of all children residing within the State's borders, the constitution has created a "duty" that is supreme, preeminent or dominant. Flowing from this constitutionally imposed "duty" is its jural correlative, a corresponding "right" permitting control of another's conduct. Therefore, all children residing within the borders of the State possess a "right," arising from the constitutionally imposed "duty" of the State, to have the State make ample provision for their education. Further, since the "duty" is characterized as paramount the correlative "right" has equal stature. (footnotes omitted). Seattle at 91.

"Providing free education for all is a state function. It must be accorded to all on equal terms." (See also Robinson v. Cahill, 287 A.2d 187, 213 (N.J. 1972) citing Brown v. Board of Education, 347 U.S. 483, 493 (1954).

Relying, in part, on the state's equal protection clause the Court then concluded:

Thus we hold, compliance with Const. art. 9, Sections 1 and 2 can be achieved only if sufficient funds are derived, through dependable and regular tax sources, to permit school districts to provide "basic education" through a basic program of education in a "general and uniform system of public schools." (Emphasis added in the original). Seattle at 97.

Finally, we note in passing the Washington court made its decision prospective only in effect. (See Seattle at pages 105-6).

In Helena Elementary School Dist. No. 1 v. State, 769 P.2d 684 (Mont. 1989), the Montana Supreme Court examined constitutional provisions that read:

(1) It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.

(3) The legislature shall provide a basic system of free quality public elementary and secondary schools.... It shall fund and distribute in an equitable manner to the school districts the state's share of the cost of the basic elementary and secondary school system. Helena at 689.

                        The Court then held:

Art. X, Sec. 1(3), Mont. Const., requires that the Legislature shall provide a basic system of free quality education, that it may provide various types of educational institutions and programs, and that the state's share of the cost of the basic system shall be distributed in an equitable manner. There is nothing in the plain wording of subsection (3) to suggest that the clear statement of the obligations on the part of the Legislature in some manner was intended to be a limitation on the guarantee of equal educational opportunity contained in subsection (1). The guarantee provision of subsection (1) is not limited to any one branch of government. Clearly the guarantee of equal educational opportunity is binding upon all three branches of government, the legislative as well as the executive and judicial branches. We specifically conclude that the guarantee of equality of educational opportunity applies to each person of the State of Montana, and is binding upon all branches of government whether at the state, local, or school district level. Helena at 689-90.

                        With respect to "local control," the Montana Supreme Court noted and held:

The State also argued that the Constitutional directive of local control of school districts, Art. X, Sec. 8, Mont. Const., requires that spending disparities among the districts be allowed to exist. That section provides:

School district trustees. The supervision and control of schools in each school district shall be vested in a board of trustees to be elected as provided by law.

While Section 8 does establish that the supervision and control of schools shall be vested in the board of trustees, there is no specific reference to the concept of spending disparities. Further, as made especially apparent after the passage of Initiative 105, the spending disparities among Montana's school districts cannot be described as the result of local control. In fact, as the District Court correctly found, the present system of funding may be said to deny to poorer school districts a significant level of local control, because they have fewer options due to fewer resources. We conclude that Art. X, Sec. 8, Mont. Const. does not allow the type of spending disparities outlined in the above quoted findings of fact. Helena at 690.

Finally, in Robinson v. Cahill, 287 A.2d 187 (N.J. 1972) the New Jersey Supreme Court was presented with a constitutional provision which recited:

The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years. Robinson at 209.

                        The Court held:

The Education Clause was intended to do what it says, that is, to make it a state legislative obligation to provide a thorough education for all pupils wherever located. (Robinson at 210).

The word "thorough" in the Education clause connotes in common meaning the concept of completeness and attention to detail. It means more than simply adequate or minimal. (Robinson at 211).

                        In reviewing the "local" versus "state" tax question, the court observed:

Although districts can be created and classified for appropriate legislative purposes ... the state school tax remain[s] a state tax even though assessed and levied locally upon local property, with revenues returned by the State to local districts. (citations omitted). Robinson at 210.

New Jersey, like Kansas, had a "hold harmless" component in their school financing system. In commenting thereon, Justice Botter, for the Court, wrote:

The Bateman Committee (a New Jersey committee which had re-viewed school finance and had recommended a whole new "needs-based" finance scheme) sought to justify minimum aid on the ground that it would provide even wealthy districts with the incentive to improve educational programs, and to maintain them at high levels. The justification offered at trial was that the State "should do something for every district." However, as long as some districts are receiving inadequate education, below that constitutionally required, the reasons offered cannot constitute a valid legislative purpose. As long as some school districts are underfinanced I can see no legitimate legislative purpose in giving rich districts "state aid." I am satisfied by the evidence that a strong reason for minimum aid and save-harmless aid is political, that is, a "give-up" to pass the legislation. Robinson at 211.

                        The New Jersey Court also recognized fundamental constitutional

            problems with the use of the property tax to support schools:

Even if districts were better equalized by guaranteed valuations, the guarantees do not take into consideration "municipal and county overload...... Poor districts have other competing needs for local revenue. The evidence shows that poorer districts spend a smaller proportion of their total revenues for school purposes. The demand for municipal services tends to diminish further the school revenue-raising power of poor districts. Another general disadvantage of poor districts is the fact that property taxes are regressive; they impose burdens in inverse proportion to ability to pay. This is because poor people spend a larger proportion of their income for housing. (citations omitted). Robinson at 213.

Finally, with the respect to the need to spend "equal dollars" on each pupil in order to achieve “equal educational opportunity,” the Court observed:

This is not to suggest that the same amount of money must be spent on each pupil in the State. The differing needs of pupils would suggest the contrary. In fact, the evidence indicates that pupils of low socioeconomic status need compensatory education to offset the natural disadvantages of their environment. Robinson at 213.

Mock v. State.

           Following this analysis of then relevant authorities, the Court in Mock resolved the following legal issues in advance of trial:

Analytical Queries

A series of questions will be posed and answered to aid in understanding and interpreting the language of the text:

1) Upon what entity of government is the sole and absolute duty to establish, maintain, and finance public schools imposed by the plain language of our constitution?

On this point nothing more need be said but that the clear answer appears from the text alone: that answer is the legislature.

2) To whom is this absolute duty to establish, maintain, and finance public schools owed?

In the court's view, the answer is self-evident when the question is stated another way. For whose primary benefit are public schools created and maintained? The answer can only be the school children of Kansas.

Without doubt, much collateral benefit from education inures to the benefit of others in our society, from business, industry, the professions, and the government, to the public at large, but the essential and primary beneficiaries of an education are the students who are educated. Thus, it is clear to the Court that the duty created by the constitutional mandate is owed to the school children of Kansas.

3) If the duty to establish, maintain, and finance public schools is constitutionally owed by the legislature to the school children of Kansas, in what proportion is that duty owed to each individual child?

Once again, the answer is logically inescapable. If the duty is owed to every child, each child has a claim to receive that educational opportunity which is neither greater nor less than that of any other child.

Thus, the fundamental answer is plain: the duty owed by the Legislature to each child to furnish him or her with an educational opportunity is equal to that owed every other child.

4) What can the legislature charge each child required to attend our public schools?

The text of the constitution alone answers this question: except for "such fees or supplemental charges as may be authorized by law," the answer is nothing.

Accordingly, the overall constitutional scheme becomes more plain: the legislature must establish and maintain free public schools, which the legislature must finance from public funds and not from tuition paid by students required to attend those schools.

5) If, then, the legislature must establish, maintain, and finance free public schools for the benefit of all Kansas school children, how must it divide its resources among districts, schools, and students?

The answer lies in the educational opportunity which the legislature owes under the constitution equally to each child. This legislative duty is not to districts, not to schools, not to towns or cities, not to voters, not to counties, not to personal constituents - but to each school child of Kansas, equally.

6) Must, then, exactly equal (per pupil) dollar amounts be furnished to each school?

Again we must review the text of the education article. Great discretion is granted the legislature to devise, change, and reform education in Kansas. Obviously, educational needs, and concomitant costs, will vary from child to child and from place to place. The mandate is to furnish each child an educational opportunity equal to that made available to every other child. To do so will unquestionably require different expenditures at different times and places.

For example, if a child lives a great way from school, the transportation cost for that child will be greater than for another child nearer to school - just to provide him or her the same educational opportunity. Similarly, if a child cannot speak English, it may cost more to teach that child English as a second language before the child can learn math and other subjects. Again, a disproportionate expenditure may be required to afford this child an equal educational opportunity. Other examples could be given but these suffice to demonstrate that the constitutional mandate is to provide to each child an equal educational opportunity, not necessarily exactly equal dollars.

Because the legislative duty to each child is the same, however, in the court's view, a disproportionate distribution of financial resources alone gives rise to a duty on the part of the legislature, if challenged, to articulate a rational educational explanation for the differential. Any rational basis for the unequal expenditures necessitated by circumstances encountered in furnishing equal educational opportunities to each child, however, would conclude the constitutional judicial inquiry.

Not only is this what the constitution says and seems to mean, but isn't this precisely how one would logically expect the people of Kansas to want their constitution interpreted? The Court invites the following experiment: ask any citizen this question: "If our constitution requires the legislature to establish, maintain, and finance free public schools from public funds for all the school children of Kansas what kind of educational opportunity would you expect the legislature to be constitutionally required by our courts to provide each individual child? This Court believes the answer you would get is: EQUAL!

                        7) Does this mean 100% "state financing" is required for public schools?

The clear and simple answer is "yes." The reasons are two: (a) that is what the constitution says; and (b) that is what we have always had - for so-called local school districts are legally only political subdivisions of the state, exercising such of the state's taxing authority as the legislature delegates to them in partial fulfillment of the legislature's obligation to finance the educational interests of the state. Thus money

raised by school districts through "local" taxation is still state money.' It just hasn't been thought of that way.

8) What financial costs of educating students are included in the constitutional mandate placed by the Educational Article upon the legislature?

Let us return to the text of Article 6 again. The key words from section 1 are "establishing and maintaining" and from section 6(b) "suitable provision for finance." Once again, the answer is clear: all costs, including capital expenditures are included. If only operating and maintenance costs were intended, the constitution would not say "establishing and maintaining." Furthermore, as previously demonstrated, in all events there is only the state, inasmuch as school districts are merely political subdivisions of the state. If the "state" (as thus understood to include its subdivisions) were not responsible for building needed schools - who or what would be? And how can a school be "established" unless some edifice to house the school be built, bought, rented, or otherwise acquired?

9) Is the legislature's only duty to divide its educational resources in such a way as to provide equal opportunities for every child?

Section 6(b) of Article 6 requires the legislature to provide "suitable financing." Clearly, then, the answer is no. In addition to equality of educational opportunity, there is another constitutional requirement and that relates to the duty of the legislature to furnish enough total dollars so that the educational opportunities afforded every child are also suitable.

In other words, should total legislative funding fall to a level which the Court, in enforcing the Constitution, finds to be inadequate for a "suitable" (or "basic" as some state's decisions prefer) or minimally adequate education, a violation of the "suitable" provision would occur. In the case at bar, the question of what that "minimum" or "basic" level is will not be reached as all parties to these cases have agreed that if present funding levels are equitably divided, so as to provide every child equal educational opportunities as herein defined, no question of minimal adequacy (suitability) exists to be presented at this time. The Court notes, however, for general edification, that such a day has come in other states, most recently Kentucky. See e.g. Rose v. council for Better Educ., 790 S.W.2d 186 (Ky. 1990). In that state, after reviewing expert testimony, the court there held a minimally adequate education is one that has the following goals:

1) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization;

2) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices;

3) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state and nation;

4) sufficient self-knowledge and knowledge of his or her mental and physical wellness;

5) sufficient grounding in the arts to enable each student to appreciate his or her cultural historical heritage;

6) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and

7) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in and sur-rounding states, in academics or in the job market. (Rose at 212-213).

10) Can the legislature be sued for "restitution" arising from past disproportionate funding?

The answer is no. The Education Article of the Kansas constitution creates no express right of action for damages. The remedy for a violation, therefore, is to strike existing laws which do not comply with constitutional provisions.

Furthermore, as an added precaution, in light of the length of time the present system has existed and the reliance placed upon it until now, should violations be found when the facts are heard, the Court has determined to make its decision in this case operate prospectively only.

Conclusion

From the foregoing, it is apparent that the interpretation given by this Court to the plain text of Article 6 of the Kansas Constitution is entirely in accord with the constitutional history and traditions of the state, the general principles of law laid down over time by our supreme court, the clear weight of reason, logic, and the modern trend of authorities in our sister states. Indeed our own Legislature, in its most recent session correctly anticipated the basic decision reached here.

In reviewing the school financing system here in Kansas, an interim committee in its report to the 1991 Legislature specifically noted,

It [the hold harmless component of the SDEA] is, therefore, unsuited for the task of equalizing wealth base differences among school districts. If applied over multiple years, this approach could not be expected to withstand legal challenge. (Emphasis added).

Report on Kansas Legislative Interim Studies to the 1991 Legislature, School Finance Proposal No. 35, at page 314.

Further, the title of the School District Equalization Act and the legislative statement of purpose in the School Consolidation Act of 1963 reflect an understanding of the duty imposed by our Constitution. The latter provides:

The legislature hereby declares that this act is passed for the general improvement of the public schools in the state of Kansas; the equalization of the benefits and burdens of education throughout the various communities in the state; to expedite the organization of public school districts of the state so as to establish a thorough and uniform system of free public schools throughout the state . . . . K.S.A. 72-6734.

Indeed, the State Board of Education's own Strategic Plan for Kansas Public Education for the Year 2005 recites:

The Kansas State Board of Education affirms it support for high quality education and learning opportunities for all Kansas citizens and for the elimination of differential access on the basis of race, sex, national origin, geographic location, age, socioeconomic status, or handicapping conditions.

The final question may arise, how could we have come from 1861 to 1991 without having had these issues decided. There are several possible answers:

The first is simple - no one ever asked. Courts only decide cases actually presented. Although several cases were filed over the years, none were ever prosecuted to final conclusion and thus no controlling precedent ever emerged.

Second, for many years the original system of completely supporting public schools, or nearly completely, with property tax dollars was probably constitutionally sufficient. When the assets of the state consisted virtually entirely of unimproved prairie land, and when school districts had about equal amounts of that - the property tax likely resulted in reasonably equal educational opportunities for every child.

Third, as the assets of the state developed unevenly, various funding programs were apparently invented, by the legislature, which gave schools enough funds that they elected not to complain. Today, however, with tight budgets and many demands on the resources of

the state, these plaintiffs here before the Court today have elected to chance litigation.

Finally, commencing constitutional litigation is always a high risk enterprise. As perhaps some plaintiffs today will tell you, the scope of the decision reached this day may be quite different from what they had expected or perhaps even desired.

 In any event - here we are. The Court has been presented with the questions now and it has an absolute constitutional duty to decide. However difficult, however popular or unpopular - that is the role of the court from which no judicial officer is permitted to retreat. There is no more solemn duty for any Court than to uphold, protect, and defend the Constitution. This duty, however, is not the sole responsibility of the judiciary. All those in government service, the Governor, Legislators, state and local school board members, even educators and teachers who are on the front lines of education, have all taken the same oath and assumed the same duty.

This Court is confident, therefore that as it today discharges its duty under the Constitution, so tomorrow will its counterparts throughout our democratic and constitutional government.

ORDER

IT IS THEREFORE CONSIDERED, ORDERED, AND ADJUDGED that the rules set forth in questions one through ten, supra, are held to be the governing rules of law applicable to the controversy at bar, which rules will be applied to the facts found controlling at trial.Since Mock v. State was not appealed, it became the law of the case.

           Following the Mock decision, in 1992, the Kansas Legislature enacted a new school financing scheme, the School District Financing and Quality Performance Act (the Act), which responds to and, in general, follows the guidelines set out in Mock. Philip C. Kissam, Constitutional Thought and Public Schools: An Essay on Mock v. State of Kansas, 31 Washburn L.J. 475, 485 (1992). The Act was subsequently challenged in Unified School District Number 229 v. State, 256 Kan. 232, 885 P.2d 1170 (1994).

           In U.S.D. No. 229, the Supreme Court first held that the constitutional responsibility imposed upon the legislature for school funding “did not unduly impede the power of locally elected boards to establish, operate and maintain schools.” Id. at 253. Thus ended the so-called “local control” argument. The Court next turned to the question of whether the school finance act provided suitable (or adequate) school funds under Article 6, section 6(b). In resolving this issue, the high court quoted with approval the following analysis of the trial judge, the Honorable Marla Luckert:

6. The issue for judicial determination is whether the Act satisfies this provision, not whether the level of finance is optimal or the best policy.

                        A. Decisions From Other States

. . . In other jurisdictions much of the recent litigation has focused upon the education clauses of the various state constitutions and charters. However, analysis of these decisions reveals that each of these decisions is necessarily controlled by the particular wording of the state's education clause and, to a lesser extent, organization and funding. Some state constitutions specifically mandate 'equality'. Others mandate 'uniformity'. Many require 'efficiency'. Some constitutions specify an explicit and significant standard such as 'high quality' or 'quality' public education. In Louisiana the standard is to provide 'excellence'. Many other states imply a lower standard such as 'thorough', 'efficient', or 'adequate'. See McUsic, 'The Use of Education Clauses in School Finance Reform Litigation,' 28 Harv. J. Leg. 308 (1991).

Based upon the language of their respective state constitutions, some courts have rejected education clause challenges to public school funding legislation when the challenge is based upon the adequacy of funding or upon uniformity of funding. See, e.g., Lujan v. Colorado State Board of Education, 649 P.2d 1005, 1025 (Colo. 1982) (Colorado's constitution requirement of a 'thorough and uniform system of free public schools,' while mandating equal educational opportunities, does not necessitate equal expenditures per pupil); McDaniel v. Thomas, 248 Ga. 632, 285 S.E.2d 156, 164 (1981) (constitution requires only an 'adequate education,' not equal educational opportunities); Thompson v. Engelking, 96 Idaho 793, 537 P.2d 635, 647 (1975) (equal educational opportunities not required by constitutional requirement of 'general, uniform and thorough system' of public schools); Hornbeck v. Somerset County Board of Education, 295 Md. 597, 458 A.2d 758, 776 (1983) ('thorough and efficient' clause commands only that legislature provide the students of the state 'with a basic public school education'); East Jackson Public Schools v. State, 133 Mich. App. 132, 348 N.W.2d 303, 305 (1984) (provision mandating legislature to 'maintain and support a system of free public elementary and secondary schools' grants only a right to an adequate education); Board of Education, Levittown Union Free School District v. Nyquist, 57 N.Y.2d 27, 47-48, 453 N.Y.S.2d 643, 653, 439 N.E.2d 359, 368-69 (1982) (constitutional provision for 'the maintenance and support of a system of free schools' contemplates only 'minimal acceptable facilities and services'), appeal dismissed, 459 U.S. 1138, 74 L. Ed. 2d 986, 103 S. Ct. 775 (1983); Britt v. North Carolina State Board of Education, 86 N.C. App. 282, 357 S.E.2d 432, 436 (1987) (state constitutional provision requiring 'general and uniform system of free public schools . . . wherein equal opportunities shall be provided for all students' mandates only equal access to schools, not a right to identical opportunities); Board of Education of the City School District of Cincinnati v. Walter, 58 Ohio St. 2d 368, 390 N.E.2d 813, 825,12 Ohio Op. 3d 327 (1979), cert. denied, 444 U.S. 1015, 62 L. Ed. 2d 644, 100 S. Ct. 665 (1980) (constitutional requirement that a 'thorough and efficient' education be provided mandates only that students not be deprived of 'educational opportunity'); Fair School Finance Council of Oklahoma, Inc. v. State, 746 P.2d 1135, 1149 (Okla. 1987) (mandate to 'establish and maintain' a public school system guarantees only a 'basic, adequate education according to standards . . .'); Olsen v. State ex rel. Johnson, 276 Or. 9, 554 P.2d 139, 148 (1976) (constitution prescribing a 'uniform and general system' of schools guarantees only a minimum of educational opportunity); Danson v. Casey, 484 Pa. 415, 399 A.2d 360, 365 (1979) (a 'thorough and efficient' education is equated with an 'adequate,' 'minimum,' or 'basic' education); Richland County v. Campbell, 294 S.C. 346, 364 S.E.2d 470, 472 (1988) (constitutional requirement that legislature maintain and support public schools guarantees equal standards and equal opportunity under the method of funding chosen by the legislature).

Even in states which the courts have upheld constitutional challenges based upon their respective education clauses, often only ‘adequacy’ has been required. See, e.g., Alabama Coalition for Equity, Inc. v. Hunt, No. CV-90-883-R (Ala. Cir. 1 993) (1993 Westlaw 204083) (constitution's education guarantee accords right to 'quality education that is generous in its provision and that meet minimum standards of adequacy'); Rose v. Council for Better Education, 790 S.W.2d 186, 211 (Ky. 1989) (the constitutionally required 'efficient' system of public schools' must be substantially uniform throughout the state,' providing every child in the state 'with an equal opportunity to have an adequate education'); Helena Elementary School District No. 1 v. State, 236 Mont. 44, 769 P.2d 684, 690 (1989) (constitution expressly provides for equality of educational opportunity'), modified in 236 Mont. 44, 784 P.2d 412 (1990) (delaying effective date of decision); Abbott v. Burke, 119 N.J. 287, 575 A.2d 359, 368-69 (1990) ('thorough and efficient' system will provide an 'equal educational opportunity for children' enabling each student to become 'a citizen and . . . a competitor in the labor market'); Edgewood Independent School District v. Kirby, 777 S.W.2d 391, 397 (Tex. 1989) ('efficient' system guarantees 'substantially equal access to similar revenues per pupil at similar levels of tax effort' so that students are 'afforded a substantially equal opportunity to have access to educational funds'); Seattle School District No. 1 of King County v. State, 90 Wash. 2d 476, 585 P.2d 71, 97 (1978) (constitutional language calling for 'ample provision' for a 'general and uniform' system of schools imposes a duty to 'make ample provision for the "basic education" of our resident children through a general and uniform system supported by dependable and regular tax sources'); Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859, 877 (1979) ('thorough and efficient' education is one which 'develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically').

                        B. The Standard in Kansas

What may be concluded from these decisions is that the analysis necessarily differs state to state. While many courts state laudatory goals for educational systems, such statements reach beyond the requirement of the Kansas constitution.

The standard most comparable to the Kansas constitutional requirement of 'suitable' funding is a requirement of adequacy found in several state constitutions. In common terms, 'suitable' means fitting, proper, appropriate, or satisfactory. Webster's New Collegiate Dictionary (1977). Suitability does not mandate excellence or high quality. In fact, suitability does not imply any objective, quantifiable education standard against which schools can be measured by a court. Rather, value judgments must be made regardless of whether the constitutional mandate requires that education be suitable, sufficient, appropriate, or adequate. Because these concepts are amorphous, courts have molded tests by which to assess the level of funding.

One of the most frequently cited definitions of an adequate education was one proffered by the Kentucky Supreme Court when it iterated six goals of education: (1) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (2) sufficient knowledge of economic, social, and political systems to enable the student to understand the issues that affect the community, state, and nation; (3) sufficient selfknowledge and knowledge of his or her mental and physical wellness; (4) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (5) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (6) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states whether competing in academics or the job market. Rose v. Council for Better Education, 790 S.W.2d at 212.

Another court indicated that a sufficient education was one which 'will equip all the students of this state to perform their roles as citizens and competitors in the same society'. Abbott v. Burke, 119 N.J. 287, 575 A.2d 359, 410 (N.J. 1990).

Most recently, these definitions were embraced by the Alabama Circuit Court, in Alabama Coalition for Equity, Inc. v. Hunt, No. CV-90-883-R (Ala. Cir. 1993) (1993 Westlaw 204083), after the court found that the state's constitution's education 'guarantee is one that accords school children of the state the right to a quality education that is generous in its provision and meets minimum standards of adequacy'. Id. at 1993 WL *52.

The definitions in Hunt, Rose and Abbott bear striking resemblance to the ten statements or goals enunciated by the Kansas legislature in defining the outcomes for Kansas schools, which includes the goal of preparing the learners to live, learn, and work in a global society. K.S.A. 72-6439. Through the quality performance accreditation standards, the Act provides a legislative and regulatory mechanism for judging whether the education is 'suitable'. These standards were developed after considerable study by educators from this state and others. It is well settled that courts should not substitute judicial judgment for educational decisions and standards. Finstad v. Washburn University of Topeka, 252 Kan. 465, 475, 845 P.2d 685 (1992). Hence, the court will not substitute its judgment of what is 'suitable', but will utilize as a base the standards enunciated by the legislature and the state department of education.

The evidence presented is that all schools in Kansas are able to meet such a standard. Some Plaintiffs, particularly Moscow [of the Southwestern group of plaintiffs], argue that eventually the Act will result in closure of schools and even the district and, therefore, the financing will not be suitable. However, the court cannot base its judgment upon the speculation of what may happen in the future. At this time, the standards are being met. Nor is the judgment of the court controlled by the many policy concerns raised by Plaintiffs who indicted the Act for failing to ensure that per pupil spending would continue to increase in proportion with increasing needs, for not allowing local boards to make long range plans, for not providing an inflationary factor, and for fostering a spend-or-lose philosophy.

However, the issue of suitability is not stagnant; past history teaches that this issue must be closely monitored. Previous school finance legislation, when initially attacked upon enactment or modification, was determined constitutional. Then, underfunding and inequitable distribution of finances lead to judicial determination that the legislation no longer complied with constitutional provisions. Compare Knowles v. Board of Education, Case No. 77 CV 251 (Shawnee County District Court, January 26, 1981) (upon remand from the Supreme Court [219 Kan. 271, 547 P.2d 699 (1976)] for evaluation of legislative modifications, finding the School District Equalization Act [SDEA] constitutional) with Mock v. State of Kansas, Consolidated Case No. 91-CV-1009 (Shawnee County District Court, October 14, 1991) (impliedly holding SDEA was unconstitutional). However, while the issues raised by Plaintiffs raise serious policy questions, the arguments do not compel a determination that the financing is not 'suitable' at the present time. The Act does not violate section 6 of article 6.

U.S.D. No. 229, 256 Kan. at 256-58.

           The Supreme Court, in U.S.D. No. 229, then noted:

The 10 goals referred to in the district court’s opinion are found at K.S.A. 72-6439(a), a part of the Act, and are set forth as follows:

(1) Teachers establish high expectations for learning and monitoring pupil achievement through multiple assessment techniques;

(2) schools have a basic mission which prepares the learners to live, learn, and work in a global society;

(3) schools provide planned learning activities within an orderly and safe environment which is conducive to learning;

(4) schools provide instructional leadership which results in improved pupil performance in an effective school environment;

(5) pupils have the communication skills necessary to live, learn, and work in a global society;

(6) pupils think creatively and problem-solve in order to live, learn, and work in a global society;

(7) pupils work effectively both independently and in groups in order to live, learn, and work in a global society;

(8) pupil has the physical and emotional well-being necessary to live, learn, and work in a global society;

                                    (9) all staff engage in ongoing professional development;

(10) pupils participate in lifelong learning.

We agree with the district court’s analysis and conclusion that the Act does not contravene the provisions of § 6(b) of Article 6 that the legislature shall make suitable provision for the financing of public education.

U.S.D. No. 229, 256 Kan. 258-59.

           The Supreme Court next addressed the question of what level of scrutiny was appropriate in resolving a claim that the legislative funding scheme violated “equal protection rights” of some students. In this connection, neither the trial court nor the Supreme Court distinguished between a Section 1 claim under the Kansas Constitution Bill of Rights (equal protection for life, liberty and the pursuit of happiness) and an Article 6, Section 6(b) claim for equal treatment under the Education Article. Although one might argue that the latter creates an absolute or fundamental right requiring heightened scrutiny of any funding discrepancies between students, the Court adopted the “rational basis” test for examining challenges to “equity” of whatever type. In doing so, however, the Court refined the rational basis level of scrutiny as follows:[T]his standard of review, although deferential, is not a toothless one.’ Mathews v. De Castro, 429 U.S. 181, 185 (1976), quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976). The rational-basis test contains two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals. In an alternative formulation, the Court has explained that these limitations amount to a prescription that ‘all persons similarly situated should be treated alike.’

U.S.D. No. 229, 256 Kan. at 260. (Emphasis added).  

           This refinement of the rational basis level of scrutiny to be applied to per pupil spending discrepancies is fundamentally synonymous with that used by this Court in Mock. If challenged, the legislature must be prepared to justify spending differentials based on actual costs incurred in furnishing all Kansas school children an equal educational opportunity. In other words, all children similarly situated must be treated alike.

           After considerable discussion, the Supreme Court in U.S.D. No. 229, concluded that there was a “rational basis” for each funding differential and that the act, as it then existed and under circumstances then existing, passed constitutional muster. In so holding, the high Court concluded:

The funding of public education is a complex, constantly evolving process. The legislature would be derelict in its constitutional duty if it just gave each school district a blank check each year. . . . Rules have to be made and lines drawn in providing “suitable financing.” The drawing of these lines lies at the very heart of the legislative process and the compromises inherent in the process.

U.S.D. No. 229 v. State, 256 Kan. at 265.

           The Supreme Court further quoted with approval the following observation of the trial court:

Hence, the court will not substitute its judgment of what is ‘suitable’, but will utilize as a base the standards enunciated by the legislature and the state department of education.

U.S.D. No. 229, 259 Kan. at 257.         

           This Court incorrectly understood this ruling to mean that it was the legislature’s duty to draw the lines in providing suitable financing and thus to make the determination as to whether or not funding for public education is suitable (and hence constitutional). Consequently, when Montoy v. State first came before this Court, the Court dismissed the case under the understanding that it was the legislature’s responsibility, and not the Court’s, to determine whether school funding is suitable (blending equity and adequacy arguments as the Supreme Court had done in U.S.D. No. 229). However, the Supreme Court reversed that ruling, holding:

In Count I involving the suitability of school finance, the plaintiffs assert that state law no longer contains educational goals or standards and that the State Board has not issued any regulations containing academic standards or objective criteria against which to measure the education Kansas children receive. The 10 goals quoted by U.S.D. 229 are no longer part of the statute. L. 1995, ch. 263, § 1. What remains is a statutory requirement that the State Board adopt an accreditation system that is "based upon improvement in performance that reflects higher academic standards and is measurable." K.S.A. 2001 Supp. 72-6439(a). While the amendment to K.S.A. 72-6439(a) may not represent a serious shift in the goals of public education in the state of Kansas, we believe that the suitability analysis required by U.S.D. 229 is more rigorous than presumed by the district court.

U.S.D. 229 relied on the legislature to promulgate standards but asserted that the ultimate question on suitability must be one for the court. Accreditation is a "base," but U.S.D. 229 also quoted the following caveat from the district court in that case:

The issue of suitability is not stagnant; past history teaches that this issue must be closely monitored. Previous school finance legislation, when initially attacked upon enactment or modification, was determined constitutional. Then, underfunding and inequitable distribution of finances lead to judicial determination that the legislation no longer complied with constitutional provisions. 256 Kan. at 258.

U.S.D. 229, quoting the district court, noted that 'while the issues raised by Plaintiffs raise serious policy questions, the arguments do not compel a determination that the financing is not "suitable" at the present time.' 256 Kan. at 258. We conclude that this case is sufficiently removed in time from our decision in U.S.D. 229 so as to preclude summary application of U.S.D. 229 to dispose of the plaintiffs' claims.

           The Supreme Court then noted the following issues raised by Plaintiffs which it wished this Court to address:

                      The state law no longer contains educational goals or standards;

the BOE has not issued any regulations containing academic standards or objective criteria against which to measure the education Kansas children receive;

the amount of Base State Aid Per Pupil (BSAPP) has not kept up with inflation. For FY 2003, the BOE requested approximately $ 635 million in additional educational funding;

school districts are still required to raise capital outlay expenses locally, and the four mill levy limit has been removed, allowing wealthier districts even greater access to capital outlay expenditures than poorer districts and thus increasing funding disparities; see K.S.A. 72-8801. In Mock, this Court specifically held that Article 6(b) of the Constitution, in its direction to the legislature to provide suitable financing, makes the state responsible for capital expenses. Mock, supra at 501. See also Wyoming v. Campbell County School District, et al., 2001 WY 19, 19 P.3d 518, 557 (Wyo. 2001 (capital construction financing system based upon a school district's assessed valuation necessarily depends on local wealth creating unconstitutional disparities in educational opportunities.);

the school finance formula provides widely differing amounts of revenue to different districts;

the number of minority students in the plaintiff school districts has increased dramatically;

a substantial gap exists between the performance of minorities and whites, and between students in the free and reduced lunch programs and those not in these programs, on state standardized tests;

the 2001 legislature changed the finance formula to allow school boards to raise a greater proportion of funds with local taxes creating disparities in educational opportunity;

the plaintiff school districts must raise money locally through the 'local option budget' ('LOB') or the capital outlay fund to meet the minimum school accreditation requirements;

                        the LOB was originally capped at 25% of the general fund budget of the local school district, and was designed to decrease as the base state aid per pupil increased, in an attempt to achieve parity statewide over time. In the 1993 legislative session, this equalizing method was abandoned and the LOB was allowed to increase as the BSAPP increased;

the plaintiff school districts raise less money per pupil with each mill levy than wealthier districts;

increased reliance on local taxes has resulted in a less advantageous education in the plaintiff school districts than in wealthier districts;

although it purports to be based on the cost of educating children in the various school districts, the school finance formula is based on political decisions, because neither the legislature nor the BOE has gathered information about the actual costs of education in the various districts;

the Kansas legislature has recognized that there are inherent inadequacies and inequities in the SDFQPA. L. 2001, Ch. 215, § 10(a);

young people nowadays need additional technological skills to compete favorably in the global society.

                        The state law no longer contains educational goals or standards;

Montoy v. State, 275 Kan. 145, 153-54, 68 P.3d 228 (2003).

           The high court then concluded:

We do not believe that the plaintiffs' factual allegations are a sham, frivolous, or so unsubstantial that it would be futile to try the case we now consider. The issues raised in this case require the district court to determine either on the basis of uncontroverted facts or on facts determined by trial whether the school financing provisions complained of are now constitutional.

There is a point where the legislature's funding of education may be so low that regardless of what the State says about accreditation, it would be impossible to find that the legislature has made "suitable provision for finance of the educational interests of the state." Kan. Const. art. 6, § 6. U.S.D. 229 suggested base criteria for determining suitability. The district court must make a finding, after giving the plaintiffs the opportunity to substantiate their claims, that the legislature has provided suitable provisions for financing the educational interests of the State before judgment may be entered for the defendants regarding the plaintiffs' unsuitability claim. Presently, the statute requires an accreditation system which is "based upon

improvements in performance that reflects higher academic standards and is measurable." K.S.A. 2001 Supp. 72-6439(a).

In Count II involving a claim of denial of equal protection, the plaintiffs advance a number of allegations. For example, they alleged that the minority students in the plaintiff school districts have increased dramatically, that a substantial gap exists between the performance of minorities and whites, and that a substantial gap exists between the performance standards of students in the free and reduced lunch programs and those not in these programs. Upon remand, these factual allegations will have to be addressed by the parties as well as by the district court in order for a final judgment to be entered. The same may be said for the factual allegations by the plaintiffs in Count III regarding their claim that they have been denied substantive due process of law.

Montoy, 275 Kan. at 155.

           This Court concludes, therefore, that its duty, once again, is to determine whether the current school funding meets constitutional requirements. Accordingly, the Court will consider anew all issues presented to determine questions of law in advance of trial.

I.        The appropriate level of judicial scrutiny for disparate impact claims.

           In Mock, this Court held that differences in per pupil spending, to pass constitutional muster, must be premised on actual differences in costs incurred to provide an essentially equal educational opportunity for all Kansas children. This standard is consistent with the rational basis test approved in U.S.D. No. 229, as previously observed.

           As also previously noted, our Supreme Court has not distinguished between Equal Protection claims and Educational Article claims concerning disparate funding, or other disparate treatment, of Kansas children. Both are equity claims and both are tested in Kansas by the same rational basis analysis, as previously explained. In the statement of this holding, however, much emphasis has been placed on the financial aspect of the rule. Here, however, it is important to note that the reason for essentially equal funding is to guarantee an equal educational opportunity for every child. At bottom, this constitutional requirement is about education. In other words, small-minded people with calculators could worry about small differences in per pupil expenditures and still miss the point: it’s about equal educational opportunities.

           Accordingly, whether any Kansas child is of a minority race, or is a slow learner, or suffers a learning disability, or is rich or poor, or lives east or west, or any other consideration that child is “our child” and our constitution guarantees that child an equal educational opportunity consistent with his or her natural abilities. Differential funding, always suspect, must always be justified by a rational explanation (basis), which will usually be related to varying costs incurred in providing essentially equal educational opportunities. This test seems to be adequate for all purposes relevant to the current controversy.

II.      The constitutionality (equity and suitability) of statutory funding schemes including general purpose funding, capital outlay statutes, and special education funding.

           In considering whether any public school funding, be it general purpose funding, capital outlay statutes, sales tax supplements, or special education funding is constitutional, the same rules apply.

Equity

           Again, as previously observed, the legislature is constitutionally obligated “to furnish each child with an educational opportunity equal to that made available to every other child.” Mock v. State, Case No. 91-CV-1009, 31 Washburn L.J. 475 (Shawnee County District Court, October 14, 1991). As this Court noted in Mock, the legislature does not have to furnish each school with the same amount of funding per pupil. However, in order to fulfill its duty to provide each child with equal educational opportunities, the legislature must begin by providing each district with the same amount of funding per pupil. The legislature may then increase funding for a particular school district only if there are rational reasons that are based on actual increased costs necessary to provide children, or particular children, in that district with an equal educational opportunity. Again, the increased costs must be essential in providing the students in that district with educational opportunities equal to that provided to students in that and other districts.

           In Mock v. State, this Court illustrated two circumstances in which a school district would require additional funding to assure that the students were receiving equal educational opportunities. The first involved an increase in the cost of transportation for students who live farther from school compared to the cost of transportation of those who live closer. See Mock v. State. The second situation involved the cost of teaching English as a second language to a student who does not speak English in order to assure that student, in turn, can learn math and other subjects taught to all students. See id.

           In each circumstance, the school district required additional funding to assure that both the student living far from school and the student who could not speak English received the same educational opportunities as other students. The first student received the same educational opportunities as other students because he could attend school, despite the fact that he lived farther than other students. The second student also received equal education opportunities because, after learning English as a second language, she could learn other subjects such as math and science along with the other students. Again, established rules seem adequate to resolve all claims presented in the case at bar.

Suitability

           In addition to providing public school children with equal educational opportunities, the legislature is constitutionally obligated to “furnish enough total dollars so that the educational opportunities afforded every child are also suitable.” Mock v. State. The Kansas Constitution does not provide a yardstick by which to measure whether the educational opportunities are suitable.

           In U.S.D. No. 229, the Supreme Court cited with approval the trial court’s observation that expressions of suitability criteria in foreign jurisdictions were roughly equivalent to those standards set out in K.S.A. 72-6439(a). The Court was also favorably impressed with the Council, legislatively created by K.S.A. 72-6439(a), to oversee the quality and equal application of the funding scheme. Based upon those statutory criteria, the oversight of that Council, and all of the circumstances then existing, the Court found the then-current funding levels and mechanisms “suitable” and thus constitutional.

           Today, as our current Supreme Court has now observed in Montoy, both those standards and that Council have been abolished. Many changes have been made in the funding statutes and many circumstances are alleged to be vastly and relevantly different. Some might suggest the Court adopt the State Board accreditation standards and the State Board of Education as substitutes for the statutory criteria and Council. Montoy teaches otherwise. (See Montoy, 275 Kan. at 155). In all events, the task of construing and enforcing the Constitution is the ultimate and primary province of the judiciary.

           Accordingly, in the absence of any appellate court or even legislative suitability standard, this Court must craft one under the constitution. As noted in U.S.D. No. 229, many states have utilized rigid objective criteria in assessing suitability (or adequacy, as many constitutions provide). See Rose v. Council for Better Educ., 790, S.W.2d 186, 212 (1989).          Although some courts have obviously preferred an objective criteria for determining suitability or adequacy, this Court is unwilling to prescribe such a list. An example supporting this conclusion follows: An objective set of criteria formulated twenty years ago would not have mentioned computer literacy. Today, it would be essential. Who knows what the list might contain twenty years hence? Accordingly, in order to avoid “freezing” out-dated technological or other matters in the Constitution, this Court finds that the standard should be of a general nature in order to meet the changing needs and conditions of our society.

           Therefore, the Court holds that a constitutionally suitable education (much like an efficient education or an adequate education as provided for in the constitutions of our sister states) must provide all Kansas students, commensurate with their natural abilities, the skills necessary to understand and successfully participate in the world around them both as children and later as adults. Because this is the constitutional right of every Kansas child, whether the legislature has met this requirement is ultimately a decision for the judicial branch. Montoy, 275 Kan. at 145.

III.     Whether the School District Finance and Quality Performance Act unconstitutionally usurps or otherwise violates the self-executing powers of the Kansas State Board of Education.

           At issue is whether the legislature acted in derogation of the constitutionally mandated powers of the State Board of Education (the Board) when the legislature developed the School District Financing and Quality Performance Act (the Act), K.S.A. 72-6405 et seq., which contains provisions for determining the amount of state aid school districts will receive each school year. Article 6 of the Kansas Constitution mandates that the Legislature create and maintain a public school system. To further this constitutional mandate, Article 6 also endows the legislature and the Board with specific powers.

           Article 6, Section 2 is self-executing, meaning the Board can exercise its constitutionally mandated power of general supervision without supplemental legislation. State ex rel. v. Board of Education (the Peabody case), 212 Kan. 482, 486, 511 P.2d 705 (1973). When a constitutional provision is self-executing, the general rule is that the legislature may enact legislation that facilitates its constitutionally mandated duties and powers, provided that the legislation is in harmony with the provisions of the Kansas Constitution. State ex rel. v. Board of Education, 212 Kan. at 488. The court in Kansas Enterprises, Inc. v. Frantz, 269 Kan. 436, 6 P.3d 857 (2000), elaborated on the general rule regarding self-executing provisions:

[E]ven in the case of a constitutional provision which is self-executing, the legislature may enact legislation to facilitate the powers directly granted by the constitution; legislation may be enacted to facilitate the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of a right. And, even though a provision states that it is self-executing, some legislative action may be necessary to effectuate its purposes. But legislative authority to provide the method of exercising a constitutional power exists only where the constitutional provisions themselves do not provide the manner and means and methods for executing the powers therein conferred. . . . . It is clear that legislation which would defeat or even restrict a self-executing mandate of the constitution is beyond the power of the legislature.

Kansas Enters., Inc. v. Frantz, 269 Kan. at 452. The legislature, therefore, may enact legislation to facilitate its obligation to make provisions for funding public schools, only if the legislation is in harmony with Article 6, section 2.

           The Constitution limits, rather than confers, power. NEA-Fort Scott v. Board of Education, 225 Kan. 607, 612, 592 P.2d 463 (1979). Article 6, section 2 thereby limits the Board’s power to that of general supervision. Id. “The people of this state, by constitutional fiat, have placed the maintenance, development and operation of local public schools with locally elected school boards, subject to the general supervision of the state board of education.” State ex rel. v. Board of Education, 212 Kan. at 492-93. Although the Peabody court found it difficult to precisely define ‘general supervision,’ it did conclude that “‘supervision’ means something more than to advise but something less than to control.” Id. According to the Peabody court, the Kansas Constitution and state statutes endow the Board “with authority to supervise the public schools and to adopt regulations for that purpose.” Id. at 489.

           Considering Article 6 in conjunction with the aforementioned case law that illuminates the boundaries of the Board’s power, it is clear that the legislature and the Board play two distinct roles. The Kansas Constitution provides the legislature with the duty to develop a method with which to provide funding to the public schools and provides the Board with the duty to supervise local school boards to ensure the educational interests of the state are being met. The Board simply does not have the power to develop or alter

provisions for funding, nor does it have the power to control the funding of the school districts.

           The legislation at issue, the Act, does not usurp the Board’s powers of general supervision. Rather, the Act is a provision created by the legislature to facilitate its duty, and its duty alone, to provide funding to the public schools of Kansas. The Act does not defeat or restrict the Board’s constitutionally mandated powers of general supervision. Nothing in the Act prevents the Board from supervising the schools and adopting regulations to aid in doing so. Consequently, the Act does not usurp or otherwise violate the constitutionally mandated powers of the Board.  

IV.     Whether the statutory funding schemes violate the Due Process Clause and Equal Protection Clause of the Kansas Constitution.

           What the Court has previously held is sufficient. However characterized, the legislature’s constitutional obligation to provide every child an essentially equal educational opportunity is the same and will be measured by the same level of scrutiny previously described.  

JUDGMENT

           For all of these reasons, the Court finds that: (1) the appropriate level of judicial scrutiny for disparate impact claims is rational basis premised on an educational cost to provide equal educational opportunity rationale; (2) total school funding must be such that it provides every Kansas student, commensurate with their natural abilities, the skills necessary to understand and successfully participate in the world around them both as children and later as adults; (3) the School District Finance and Quality Performance Act does not usurp or otherwise violate the self-executing powers of the Kansas State Board of Education; and (4) for due process claims, the constitutional obligation is the same and is measured by the same test previously set out for determining whether school funding is equitable and suitable. The foregoing Memorandum Decision and Order shall serve as the final entry of judgment, no further journal entry being required.

           Dated the _______ day of ______________, 2003.

                                                                                        ___________________________

                                                                                        TERRY L. BULLOCK

                                                                                        District Judge