IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION SIX
ERIC and RYAN MONTOY, et al., )
Plaintiffs, )
v. ) Case No. 99-C-1738
)
STATE OF KANSAS, et al., )
Defendants. )
_______________________________________)
MEMORANDUM DECISION AND ORDER
The above captioned matter comes before the Court on a Motion to Certify this Court’s December 2, 2003 Preliminary Interim Order for purposes of interlocutory appeal, pursuant to K.S.A. 60-2102(b). This motion has been filed on behalf of the individual defendant members of the Kansas State Board of Education and Defendant Commissioner of Education Andy Tompkins. The defendant, State of Kansas, has not joined in the motion. After careful consideration of the motion and supporting memorandum and Plaintiffs’ response thereto, the Court finds and concludes as follows:
In determining a motion to certify, pursuant to K.S.A. 60-2102(b), the Court must consider three statutory requirements: a controlling question of law, a substantial ground for difference of opinion, and a material advancement of termination of the litigation. K.S.A. 60-2102(b). See also Reed v. Hess, 239 Kan. 46 (1986). K.S.A. 60-2102(b) further states that the Court should allow such an interlocutory appeal only when the Court is of the opinion that all three statutory requirements co-exist.
1) Prior to trial, the parties submitted briefs to the Court seeking rulings of law in advance of trial on four legal issues. The Court determined these controlling issues in a September 8, 2003 pre-trial ruling, 100 days prior to the filing of the instant motion.
2) In its December 2, 2003 Preliminary Order, the Court found, almost entirely as a matter of fact, that the current school funding scheme stands in blatant violation of Article 6 of the Kansas Constitution and the equal protection clauses of both the Kansas and U.S. Constitutions in the following three separate and distinct aspects:
a. It fails to equitably distribute resources among children equally entitled by the Constitution to a suitable education or in the alternative to provide a rational basis premised in differing costs for any differential;
b. It fails to provide adequate total resources to provide all Kansas children with a suitable education (as that term has been defined by both this Court and the Legislature itself); and
c. It dramatically and adversely impacts the learning and educational performance of the most vulnerable and/or protected Kansas children. This disparate impact occurs by virtue of underfunding, generally, and selective underfunding of the schools where these vulnerable and/or protected children primarily attend, specifically. Those vulnerable and/or protected children, of course, are: the poor, the minorities, the physically and mentally disadvantaged, and those who cannot or nearly cannot yet speak the primary language of America and its schools.
3) These factual findings were premised entirely upon the legal principles elucidated by the Supreme Court in Montoy and by this Court on September 8, 2003 (from which no exception has been taken by Defendants until today).
4) Of more baffling significance is the fact that the action of this Court in withholding final judgment and in withholding the implementation of a remedy and instead in referring the matter to the executive and legislative branches for correction was upon the specific request of Movants! To be absolutely precise, in final oral arguments to this Court at the conclusion of trial, Mr. Biles, on behalf of Movants, made the following unambiguous request, in haec verba:
Mr. Biles: Let’s talk about remedy for just a moment, Your Honor. If . . . we are to get to a point where the Court says that the achievement gap is a constitutional deficiency, what should the Court do? I believe what the Court should do under our law is to simply say on a factual basis that it is a constitutional deficiency and tell the State to go fix it. I can tell you that we have the road map already at the State Board of Education. Because we have the revised accreditation system, which puts the annual yearly progress requirement for accreditation in place today. So, I don’t think that the Court needs to get into whether that’s a good or bad plan. I think the Court needs to just say go fix it.
Movants are correct in that the Court applied the controlling law to its factual findings. However, what Movants seem to overlook is the penultimate fact that the Kansas Supreme Court has already addressed these very questions of law and in doing so mandated this Court to hold a trial and further instructed it to make fact findings on specific factual issues deemed of controlling importance by that highest court. This Court has now complied with the high court’s directive. The law governing this case is very clear and was so well prior to trial. This Court merely heard the evidence and then found the facts from the evidence, the vast majority of which was actually uncontroverted.
Movants complain that the Court “refined” the legal standard of scrutiny. The Court disagrees. First, this Court precisely applied the test it announced in conformity with the Supreme Court’s ruling in Montoy, all as covered by the Court’s September 8, 2003 ruling in advance of trial. Second, as Plaintiffs properly note in their response to this motion, the factual determination in this case would have been the same regardless of what legal standard was applied:
a) As to the equity claim, Defendants had the burden of establishing some justification for the 300% differential in per pupil funding. At trial, Defendants offered nothing;
b) As to the suitability claim, the uncontroverted evidence was the Augenblick & Meyer study. At trial, Defendant Education Commissioner Tompkins testified there was no other evidence;
c) As to the disparate impact claim, the “achievement gap” between protected and/or vulnerable children and majority children was proved to be immense by uncontroverted evidence. Likewise, it was uncontroverted that the schools where these expensive-to-educate protected and/or vulnerable children generally attend receive the least in per pupil funding. At trial, Defendants contended, but did not prove, that there was no connection between this disparate underfunding and the shocking failure rates of those protected and/or vulnerable children. Plaintiffs proved there was.
Accordingly, Plaintiffs would have prevailed whether this Court applied a “refined” rational basis test, so-called by Movants, a “traditional” rational basis test, so-called by Movants, or any other criteria. No matter the test used, the Court would have been required to find the current funding scheme unconstitutional. Again, as Defendant Education Commissioner Tompkins testified, there was no other evidence.
Substantial Ground for Difference of Opinion
Movants’ first contention is that based upon the submissions of the parities—both before and after trial—there are substantial differences of opinion in this case as to the rules of law that are applicable. As previously noted, these rulings were made on September 8, 2003, 100 days prior to the filing of this motion. If Movants truly believed it was in the best interest of justice to have those rulings appealed in an interlocutory manner, they should have made their request prior to the eight-day trial held before the Court wherein 1,367 pages of testimony were heard and considered, over 300 exhibits containing thousands of pages were examined and considered, and where 565 proposed finding were considered and evaluated. Movants were fully aware that the Court would be finding the facts at trial pursuant to the applicable rules of law set forth in Montoy and this Court’s September 8, 2003 decision. As for the other example cited by Movants, this Court neither implied nor declared that revenue enhancements by use of a sales tax is unconstitutional under Article 6 of the Kansas Constitution. This Court’s holding is very clear: sales taxes, like all other sources of revenue, constitute “state funds” and, as such, count in any calculation of equality of funding. As the Court has already held, the current funding scheme fails to equitably distribute resources among children equally entitled by the Constitution to a suitable education or in the alternative to provide a rational basis premised in differing costs for any differential. It is not for the Court to determine or criticize where the dollars used to fund schools are obtained. The Court’s role is to see
that all of our children are receiving a suitable education and that the funding scheme equitably distributes resources for that constitutionally protected purpose.
Movants’ final argument under this heading is that there exist substantial factual differences of opinion. While Movants may now suggest there are variances in the underlying facts of the case, as noted above, those variances were not presented at trial, nor did the evidence expose them. Virtually all of the factual questions presented to this Court were uncontroverted. In most circumstances, it was Movants’ own evidence that supported the Court’s findings. The Court finds it frankly hypocritical for Movants to now request this interlocutory appeal when every Movant who actually testified did so on behalf of and in conformity with the contentions of Plaintiffs. Further, on the issue of suitability, Movants have, both publicly and in this Court’s courtroom, passionately decried the lack of a suitable education for Kansas children and have publicly urged the implementation of the Augenblick & Meyer recommendations for the correction of that constitutional deficiency. If there was other evidence to consider, the time to present it was during trial.
Material Advancement of Termination of the Litigation
Movants urge that an interlocutory appeal will advance the termination of this litigation. First, this argument is patently disingenuous. Movants begged the Court for the precise order it made; that is, to defer final action and give the Legislature and the Governor an opportunity to correct the problems now apparent. Movants now complain of that very ruling which they not only invited but actually requested. Second, the argument is false: that is, Movants urge that an interlocutory appeal could possibly allow for a remedy of these serious and blatant constitutional violations of the rights of our children (who are our future) to be crafted and put in place by 2005-2006. Given the magnitude of the problems contained within the Court’s findings, it would not be unexpected that real progress would not be evident for at least a year more after the crafting of the remedial plan. That brings us to 2006-2007. This Court has directed these defects be remedied by July 1, 2004.
These are constitutional violations. With more than 437,000 students presently
enrolled in Kansas schools, imagine how many thousands more Kansas children will be
cast upon the dust heap of history by a State Board of Education and a Commissioner of
Education who wish to delay for at least four more years (beyond the nearly five years
this case has already pended) the fulfillment of the constitutional duty to provide our
children their educational due. When these illiterate and incapable youngsters join the
ranks of their “socially promoted throwaway
” predecessors in our Kansas communities,
who will care for and support them? Isn’t this the classic case of “pay now or pay more
later?” Finally, Movants wish to delay this matter so that any eventual remedy (which
they apparently now wish to avoid) can coincide with the state’s school “budget process.”
What budget process? As this Court has previously discovered and held: There is none!
Plaintiffs contend in their response to this motion, that the Court is again faced with the same dilemma it faced in Mock. If this case is appealed now, they say, even if fast-tracked, there is a probability that a decision could not be made by the Supreme Court prior to June or July. The Legislature generally goes home in May. The tax filing deadlines for school districts are in August. If the Supreme Court affirms this Court’s ruling that the school funding scheme is unconstitutional, Kansas would then be facing the beginning of a school year without any power to tax or spend under the existing statutes. This would necessitate calling the Legislature back in a special session immediately before an election. To the extent this may be true, in the Court’s view, this would not be good for Kansas and especially not for her children. Conversely, if the Legislature and the Governor take advantage of the opportunity given by the Court to remedy the problems extant during this next legislative session (which Movants
themselves requested), the problems, and this litigation will be solved and concluded by May 2004.
What was true on December 3, 2003 is still true two weeks later. Recall once again with the Court from the Court’s Preliminary Interim Order that the following are facts:
1) Defendants’ own books and records show some children presently receive $5,655.95 of the state’s educational largesse each year, while others receive $16,968.49, a difference of more than 300 percent;
2) There is no rational factual basis whatsoever for this funding differential premised on additional costs incurred to educate those children receiving more. To be blunt and specific, as the school officials who testified were, the current funding scheme is irrational: that is, those schools with the most expensive children receive the least! Further, the State does not even gather or request cost information from our schools. It has no “bottom up” budgeting process which would provide this critical information in this, an endeavor which already expends nearly four billion tax dollars each year, well over half of the entire annual revenues of the State;
3) The cost of providing a suitable education, as the Legislature itself has defined it, is apparently over a billion dollars more than is currently provided (as Kansas schools are presently configured and managed–both legislative choices). This fact was established by the Defendants’ own commissioned study of costs, which was not only uncontroverted, but was actually accepted and recommended by the Defendant State Board of Education for adoption;
4) In commissioning the Augenblick & Myers’ study, the Legislature statutorily found as a fact that the current funding scheme is inadequate and inequitable (findings this Court has only duplicated);
5) The Defendants’ own records establish that the current funding scheme provides least to those school districts which have the largest concentrations of our most vulnerable and/or protected students; our poor, our disabled, our minorities, and our children not fluent in the language spoken in their schools (children, whom all agree cost more to educate);
6) The Defendants’ own disagreggated educational testing records conclusively establish that those most vulnerable and/or protected students, described in subparagraph e above, are experiencing an “achievement gap” of staggering proportion when compared to other Kansas students;
7) That “achievement gap” (reflecting failure rates in some categories of students and subjects as high as 80 percent), referred to in subparagraph 6 above, violates Defendants’ own current legal educational standards and if not
corrected, will soon violate the federal law of the land, the law known as No Child Left Behind;
8) This disparate funding and this correlative “achievement gap,” both referred to above, when coupled with the uncontroverted evidence shown to this Court that all children can learn and flourish when education is properly funded and students properly taught, conclusively demonstrates the adverse and unconstitutional disparate impact the current funding scheme has on our most vulnerable and/or protected students; factually a clear denial of equal protection of the laws in contravention of both the United States and Kansas Constitutions; and,
9) This case has already been appealed. In that appeal, the high court has clearly told us: a) what law is applicable and b) what questions it wanted answered factually. That has now been done.
For all the foregoing reasons, Movants’ motion for certification for interlocutory appeal, pursuant to K.S.A. 60-2102(b), is denied.
As this Court has previously observed, this case is not about the Legislature, it is not about the Governor, it is not about the Court, it is not about the State School Board, it, it is not about school districts, counties, cities, or towns. It is about our children!
The Court will never forget Mr. Weltz’s statement in closing argument in this case when he said, in haec verba, “Our education system is strong and is producing meaningful results for most children.” This case, of course, is about the rest of those children.
The Court’s message is in Movants’ own words:
This Memorandum Decision and Order shall serve as the Order of the Court, no further journal entry being required. Dated this 19th day of December 2003.
_______________________________
Terry L. Bullock
District Judge