IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION SIX
RYAN MONTOY, et al,
)
)
) Case No. 99-C-1738
)
Plaintiffs, )
)
v. )
THE STATE OF KANSAS, et al )
)
Defendants. )
_____________________________)
DECISION AND ORDER
REMEDY
Section I: Background
On December 2, 2003, this Court entered a Preliminary Interim Order holding
that the Kansas school funding scheme, as it then existed, was unconstitutional in
violation of Article 6 of the Kansas Constitution and the Equal Protection Clauses of
both the Kansas and United States Constitutions. At the request of Defendant State
Board of Education, the Court withheld final judgment and gave the legislative and
executive branches an opportunity to craft remedial legislation. Specifically, the Court
provided the State a grace period encompassing the entire 2004 legislative session in
which to repair the constitutional violations in the funding scheme. Unfortunately,
during that just-concluded legislative session, the legislative and executive branches
failed to utilize the time provided by the Court and none of the adjudicated
constitutional defects in the school funding scheme were addressed and none corrected.
The Legislature has now adjourned and left the capital. Only formal sine die
adjournment remains. Accordingly, with considerable regret and after much
deliberation, the Court can find no reason to further delay and is now prepared to
announce its remedy ruling in this matter.
The Kansas Supreme Court has stated that “[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 (1982). Our high court has also held that “[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.” State v. Smith, 155 Kan. 588
(1942). In Mock v. State, Case No. 91-CV-1009, 31 Washburn L.J. 475 (Shawnee
County District Court, October 14, 1991), this Court stated that the Legislature is
constitutionally obligated “to furnish each child with an educational opportunity equal
to that made to every other child.” This Court issues its remedy with these guiding
principles in mind.
Section II: Constitutional Deficiencies in School Finance
On December 2, 2003, this Court held, almost entirely as a matter of fact, that
the current school funding scheme then stood in blatant violation of Article 6 of the
Kansas Constitution and the Equal Protection Clauses of both the Kansas and United
States Constitutions in the following three separate and distinct aspects:
A. It failed 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 failed to supply adequate total resources to provide all Kansas children
with a suitable education (as that term was previously defined by both
this Court and the Legislature itself); and
C. It dramatically and adversely impacted the learning and educational
performance of the most vulnerable and/or protected Kansas children.
This disparate impact occurred 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, were and 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.
The Court made its interim ruling based upon facts found following an eight day
bench trial (generating 1,367 pages of transcribed testimony), including approximately
300 exhibits consisting of thousands of pages, and after considering 565 proposed
findings of fact and conclusions of law submitted by the parties and the arguments
made by the parties. In addition to the general factual and legal conclusions
stated above, the Court noted the following concerns in the then current funding
scheme:
a. Defendants’ own books and records showed some children received
$5,655.95 of the state’s educational largesse each year, while others
received $16,968.49, a difference of more than 300 percent;
b. There was 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 was found to be irrational:
that is, those schools with the children most expensive to educate 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;
c. Although the Legislature is free to choose a public school structure and
management model more efficient than the one presently in use,
according to the uncontroverted evidence presented to the Court the cost
of providing a suitable education for Kansas children under the current
legislatively authorized configuration is nearly a billion dollars more than
is presently provided. This fact was established by the Defendants’ own
commissioned study of costs (Augenblick & Myers), which again was not
only uncontroverted, but was actually accepted and recommended by the
Defendant State Board of Education for adoption. To date, no more
efficient, and thus less costly, system has been either proposed or adopted
by the Legislature;
d. 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);
e. The Defendants’ own records established 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);
f. The Defendants’ own disagreggated educational testing records
conclusively established 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;
g. That “achievement gap” (reflecting failure rates in some categories of
vulnerable and/or protected students as high as 80 percent), referred to in
subparagraph f 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; and
h. 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.
Section III: Activity Since December 2, 2003
The Court judicially notices the official records of the Kansas Legislature, which
reveal the following:
• The Governor began the 2004 Legislative Session by submitting her
“Education First” plan as a part of the State of the State address. In this
plan, the Governor proposed increasing education funding a total of $300
million per year, phased in over a three year period. Her plan called for
an increase of $250 in the base per year per pupil allotment, and also
provided additional funds for at-risk, bilingual, and Special Education
students. It proposed no structural or management changes in the
schools, but it did propose additional funds for All-Day Kindergarten,
Parents-as-Teachers, and teacher mentoring.
• The Governor's Education First Plan was rather quickly dismissed by
both houses of the Legislature.
• The House then adopted a bill which proposed making a one-time
addition of $155 million to education funding. This measure proposed no
changes in school structure or management, an omission replicated in
every proposal made thereafter by either house.
• The Senate did not act on the $155 million House measure during the
"regular" session and did not adopt any school funding proposal of its
own whatsoever.
• During the "wrap up" or "veto" session, the Senate adopted a bill which
proposed to add $72 million to school funding for one year only. This
bill was "funded" by a deduction of $32 million from the State's cash
reserves, with the balance to be taken from the pensions of elderly and
retired state workers.
• The Senate then rejected the $155 million House bill and the House
rejected the $72 million Senate bill.
• These mutual rejections placed the entire matter of school finance in the
hands of a joint conference committee, which, on a vote of 5-1, agreed on
a $108 million compromise measure which would have increased the
base per pupil per year allotment by $27. Other single-year adjustments
were also proposed. Because a House member of the conference
committee refused to sign the conference committee report, the House,
under its rules, could not consider the compromise. The House was then
asked to adopt a procedure which would allow a second conference
committee to be appointed, whose report could then be considered with
only two signatures from each house. That proposal was rejected by the
House. Twice.
• Despite rules which would seem to prevent it, the joint conference
committee then met again and reached yet another agreement on a
different proposal. This suggested compromise measure proposed to add
$66 million to school funding for one year and further proposed to
authorize the State's sixteen wealthiest districts to raise even more
revenue locally from district property taxes, thus proposing to
substantially enlarge the current 300% state-wide per pupil funding
disparity. This proposal, like the earlier Senate plan, was proposed to be
funded by reducing the State's cash reserves by $26 million, with the
balance coming from State worker pension funds. This proposed
compromise also included a provision designed to diminish the Court's
constitutional definition of "suitable education," a definition provision
which would expire in one year (a date apparently selected to coincide
with the estimated termination of the litigation at bar.)
• The $66 million compromise proposal was abandoned without a vote.
• Next, a bi-partisan plan was proposed by some members of the House.
This proposal would have generated $128 million in new revenue for
schools and would have 1) raised the base per pupil allotment by $100
per year, 2) funded Special Education at 100 % for the first time in
Kansas history and 3) increased funds for at-risk and bilingual students.
It also proposed to increase the LOB limit for local districts from 25 % to
28.5%, thus again proposing to increase the state-wide per pupil funding
discrepancy, previously held unconstitutional by the Court.
• The $128 million House proposal was debated in the Senate and, once
again, sent to the conference committee for further negotiations.
• In the closing hours of the "veto" session, the Senate rejected a $108
million compromise proposal and the House rejected a $95.1 million
counterproposal. An $82 million conference committee recommendation
funded entirely with funds to be taken from the State Highway Fund was
likewise rejected.
• Finally, a $92 million suggested compromise failed to pass either house
and the Legislature adjourned without addressing or correcting even one
of the following unconstitutional aspects of State's school funding
scheme:
a. The enormous funding disparities (totaling more than 300%)
between individual school children created by wealth-based, local
funding options and other aspects of the funding scheme;
b. The local and state funding statutes which disparately benefit only
some children in certain geographic areas of the State, and which
are not related in any way to the cost of educating those children;
c. The categories of weightings or other funding concepts providing
additional funds only to some children and some school districts,
none of which are related to actual costs incurred;
d. The state and/or federal school and student performance mandates
which are not fully funded;
e. The funding mechanisms in place which deprive schools with
“expensive to educate” students of the funds necessary to
successfully teach them.
f. The hugely insufficient total dollars to adequately fund the
education system as a whole under its present organizational and
management structure; and,
g. The inadequate and inequitable funding formulas which
disparately and adversely impact vulnerable and/or protected
children, creating an “achievement gap” of shocking proportion
(again creating failure rates for some classes of vulnerable and/or
protected children as high as 80%).
To paraphrase Aesop: The mountain labored and brought forth nothing at all.
In fact, rather than attack the problem, the Legislature chose instead to attack the Court.
From the outset, legislative leaders openly declared their defiance of the Court
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and
refused to meaningfully address the many constitutional violations within the present
funding scheme, all of which were created by the Legislature itself. To this very day,
those legislative leaders continue to disregard this Court’s factual findings, premised
largely on the State’s own records and other uncontroverted evidence. They likewise
continue to ignore the fact that this Court did not act alone, but was in fact operating
under a mandate handed down by the Kansas Supreme Court in this very case.
Accordingly, the mocking and disrespect shown this Court must be understood to be
directed at the State’s entire judicial branch of government.
Preliminarily, it is also worth noting that the “remedy” brief filed herein by
Defendant State of Kansas was distinctly unhelpful. It was furthermore disrespectful to
the Court and unprofessional in tone. How the children of Kansas benefit from these
official actions of our government escapes the Court.
This case was originally filed in 1999. Five years later, there is still no relief in
sight for our children. Hundreds of thousands of these children have gone through the
Kansas educational system during this period of time. According to the evidence, many
thousands of them have been permanently harmed by their inadequate educations and
forever consigned to a lesser existence. Further delay will unquestionably harm more
of these vulnerable and/or protected of our students. Given these facts, coupled with
the attitudes and inaction of the Legislature, the Court now has no choice but to act and
to act decisively.
Section IV: Remedies Utilized Elsewhere: The National Perspective
After reviewing similar cases across our nation, the Court finds many parallels
to the present situation in Kansas. Our Legislature has recently followed a path nearly
identical to that followed by legislatures in a few other states. In those states, the
inaction was almost always preceded by a debate more concerned with political
considerations than with the educational needs of the children. As a result, the courts in
these states have been compelled to take appropriate action to enforce their
constitutions, have shown constitutional leadership, and have implemented a variety of
means necessary to correct the legislatively-created constitutional deficiencies.
In Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31 (2002), the Arkansas
Supreme Court, after allowing the Legislature an opportunity to correct funding defects
and finding the legislative corrective effort inadequate, appointed a special master to
take charge of and correct constitutional deficiencies in that state’s educational
organizational and funding systems. In addition, the Arkansas court affirmed the grant
of attorneys’ fees in the amount of $3,088,050, plus costs in the amount of $309,000.
In Campaign for Fiscal Equity, Inc. v. New York, 100 N.E.2d 326 (N.Y. Slip Op.
No. 15615 June 26, 2003), the New York court gave the state one year to: (1) determine
the cost of providing the opportunity for sound basic education (which has already been
done in Kansas); (2) provide those resources; and (3) ensure an accountability system to
measure whether reforms actually provide the opportunity for a sound basic education.
In Abbott v. Burke, 710 A.2d 450 (1998), the New Jersey Supreme Court
remanded the case to the lower court to direct the commissioner of the department of
education to initiate a study and to prepare a report with specific findings and
recommendations. In addition, the lower court appointed a special master to study the
issues and to make specific recommendations. After consideration of the
recommendations of the commissioner and the special master, the lower court adopted
them.
In Hoke County v. North Carolina, 95 CVS 1158 (April 4, 2002), Superior Court
Judge Howard E. Manning, Jr. stated, in accordance with Leandro v. North Carolina,
346 N.C. 336 (1997), that “[i]t is up to the Executive and Legislative Branches to
provide the solution to constitutional deficits....” The court went on to say that “[t]hese
branches can no longer stand back and point their fingers . . . and escape responsibility
for lack of leadership and effort, lack of effective implementation of educational
strategies, the lack of competent, certified, well-trained teachers effectively teaching
children, or the lack of effective management of the resources that the state is providing
to each [school district].” While giving deference to the executive and legislative
branches of government, the North Carolina court maintained jurisdiction, just as this
Court has, to see that a proper remedy is implemented.
On April 26, 2004, in the revived remedy phase of McDuffy v. Secretary of the
Executive Office of Education, 415 Mass. 545 (1993), Justice Margot Botsford filed a
357 page report to the Massachusetts Supreme Judicial Court. In this report, Justice
Botsford found that the funds provided Massachusetts schools were constitutionally
inadequate. The justice further found that increases in funding alone would not
produce a constitutionally adequate educational program. In her findings, Justice
Botsford noted:
The Commonwealth, and the department, have
accomplished much over the past ten years in terms of
investing enormous amounts of new money in local
educational programs, ensuring a far greater degree of
equitable spending between rich and poor school districts,
and redesigning in some fundamental ways the entire public
school educational program. When one looks at the State
as a whole, there have been some impressive results in
terms of improvement in overall student performance.
Nevertheless, the factual record establishes that the schools
attended by the plaintiff children are not currently
implementing the Massachusetts curriculum frameworks
for all students, and are not currently equipping all students
with the McDuffy capabilities [which had previously
defined an adequate or suitable education]. This point may
be best illustrated graphically in the areas of English
language arts and mathematics, which are the primary
subjects of the MCAS [Massachusetts Comprehensive
Assessment System] tests, but it is perhaps even more
strongly made in relation to the other critical areas of study
that the McDuffy capabilities and the curriculum
frameworks encompass: history, science, health, the arts,
and foreign languages. The inadequacies of the educational
program provided in the [relevant] districts are many and
deep. Most worrisome is the fact, reflected in all the
MCAS scores, that for children with learning disabilities,
children with limited English proficiency, racial and ethnic
minority children, and those from low-income homes, the
inadequacies are even more profound.
In considering the appropriate remedy, Justice Botsford held:
The defendants have argued in this remedy phase that even
if some of the [relevant] districts are struggling, clearly
“appropriate legislative action” has indeed been taken by
the Commonwealth. This is evidenced by . . . reform
measures enacted by the Legislature since 1993, all of
which, the defendants state, the Commonwealth has
implemented with diligence and effectiveness over the past
ten years. Accordingly, in the defendants’ view, the proper
resolution of this case is to deny the plaintiffs’ motion for
further relief, and dismiss their complaint. The plaintiffs,
on the other hand, contend that the evidence plainly
establishes they are not receiving an adequate education
because the schools and school districts they attend do not
have sufficient resources to provide it. They propose that
the court appoint a “21st Century Foundation Budget
Commission” under the supervision of the court. They
further propose that the court direct the commission to
develop, subject to the court’s approval, a new foundation
budget that provides sufficient resources to allow the
[relevant] districts to provide an adequate education that
meets constitutional standards.
I recommend against accepting the defendants’ suggestion
of no remedial relief. The defendants’ argument is
essentially two-fold. They first contend that the struggles
being experienced by certain school districts, including
presumably the [subject] districts, are not related to
inadequate resources but rather, reflect a lack of leadership
and managerial capacity. Second, they contend that the
Commonwealth is dealing with the capacity issues through
the school and district accountability system it has put into
place. This system includes not only the coordinated
program reviews and school panel reviews conducted by
the department but the parallel district reviews conducted
by EQA [Educational Quality and Accountability] – each of
which contemplates analysis, targeted assistance for
improved planning, use of data and improved programs,
monitoring, and, if there is no marked improvement, the
possibility of more drastic action and greater intervention
by the Commonwealth.
I have found that capacity problems are a cause of the
inadequate education being provided to the plaintiffs, but
inadequate financial resources are a very important and
independent cause. Moreover, apart from the issue of
funding, the difficulty with the defendants’ solution is that
the system they depend on to improve the capacities of
schools and districts is not currently adequate to do the job.
* * *
The plaintiffs have a right under the Massachusetts
Constitution to an education that will equip them in a
number of ways to be in a position to fulfill their
responsibilities and enjoy their rights as productive,
participating citizens in a republican government. McDuffy,
415 Mass. at 618-620. The duty to educate evolves with
society, as the court recognized in McDuffy. Id. at 620. As
the evidence showed, it becomes more and more apparent
that in the United States today, individuals need to receive
an education that will enable them to pursue degrees
beyond high school or at least excellent, technologically
competent, vocational education. In the [relevant] districts,
too many students currently are not receiving what they
need to be able to pursue these paths. The commissioner
has set the date of 2014 for students in the Commonwealth
to become “proficient” in [English language arts] and math;
there is no timetable for proficiency in other areas of study.
The associate commissioner of education for school finance
and support suggested that it may not be fair to begin
assessing whether the current system of education reform
embodied in the ERA [Education Reform Act] is successful
until all districts in the Commonwealth have operated at
least 100 % of their foundation budget for a full cycle of
kindergarten through twelfth grade– the year 2012. In the
context of this litigation, and eleven years after the McDuffy
decision, that timetable is just too long.
In light of the findings in this report, I conclude the
plaintiffs are entitled to remedial relief from this court.
* * *
In the last twenty years, courts in several States have
struggled with the question of remedy after reaching a
conclusion that the particular State was not meeting its
State constitutional obligation regarding public school
education. I recommend that the court follow the path that
the New York Court of Appeals has recently chosen in a
case concerning the adequacy of education provided in the
New York City public schools. See Campaign for Fiscal
Equity, Inc. v. New York, 100 N.Y. 2d 893, 928-932 (2003).
Translated into this case, the relief would be an order
directing the State defendants to: (1) ascertain the actual
cost of providing the level of education in each of the focus
school districts that permits all children in the district’s
public schools the opportunity to acquire the capabilities
outlined in McDuffy -- a directive that means, at present,
the actual cost of implementing all seven of the
Massachusetts curriculum frameworks in a manner
appropriate for all the school district’s children; (2)
determine the costs associated with measures, to be carried
out by the department working with the local school district
administrations, that will provide meaningful improvement
in the capacity of these local districts to carry out an
effective implementation of the necessary educational
program; and (3) implement whatever funding and
administrative changes result from the determinations made
in (1) and (2). This order would be directed to the State
defendants to accomplish because McDuffy expressly holds
that the Commonwealth, not the local districts, is ultimately
responsible “to devise a plan and sources of funds sufficient
to meet the constitutional mandate.” 415 Mass. at 621.
Further, I recommend that the court give a definite, but
limited, period of time for the defendants to carry out this
order and report back to the court with a plan and timetable
for implementation, perhaps six months. I also recommend,
as in New York, that the court continue to retain
jurisdiction over the case to allow the court, or a single
justice, or a judge of the Superior Court, to monitor the
remedial process and provide whatever direction may be
appropriate.
In Columbia Falls v. Montana, Case No. BDV-2002-528 (Montana First Judicial
District Court, April 15, 2004), Judge Jeffrey M. Sherlock, sitting in Helena, held
Montana’s entire school finance system unconstitutional. In reaching this conclusion,
Judge Sherlock quoted, with approval, the following section from Brown v. Topeka Bd.
of Ed., 347 U.S. 483, 493 (1954):
Today, education is perhaps the most important function of
state and local governments. Compulsory school
attendance laws and the great expenditures for education
both demonstrate our recognition of the importance of
education to our democratic society. It is required in the
performance of our most basic public responsibilities, even
service in the armed forces. It is the very foundation of
good citizenship. Today, it is a principal instrument in
awakening the child to cultural values, in preparing him for
later professional training, and in helping him to adjust
normally to his environment. In these days, it is doubtful
that any child may reasonably be expected to succeed in life
if he is denied the opportunity of an education. Such an
opportunity, where the state has undertaken to provide it,
must be made available to all on equal terms.
He also quoted with approval the following statement made by Judge Loble in
the January 13, 1988 Montana case finding an earlier version of Montana’s school
finance plan unconstitutional:
Contemporary society demands increasing levels of
sophistication, and increased knowledge and understanding
of technology. Education plays the central role in
developing a person’s abilities to achieve that
sophistication, knowledge and understanding.
Consequently, the quality of an individual’s life is
increasingly dependent on the level and quality of that
individual’s education.
Judge Sherlock noted the following deficiencies in the current Montana school
funding scheme:
1. It utilized an excessive reliance on permissive and voted levies;
2. It was unnecessarily complicated and hard to understand;
3. There was no mechanism to deal with inflation;
4. The funds allocated were not based on actual costs of providing
education;
5. No allowance was made for increased costs incurred in achieving
increased achievement standards;
6. The information used to create the plan was already two years old when it
was used to formulate the plan;
7. There was no cost study to justify the various levels of per pupil funding;
8. Additional funding was allocated by the Legislature in response to earlier
constitutional litigation, which was later withdrawn when that litigation
was concluded and judicial attention focused elsewhere;
9. Many of the funding provisions were tied to the wealth of each district,
not related to actual educational costs or needs;
10. Increased accreditation requirements and No Child Left Behind laws
created substantial additional costs which were not provided for in the
funding scheme and were, thus, essentially unfunded mandates;
11. Accreditation standards created minimum requirements but in no way
guaranteed an adequate or quality education to any child;
12. The “every classroom staffed with a teacher qualified in the subject being
taught” and AYP (Adequate Yearly Progress) required by the No Child
Left Behind Act placed considerable costs on schools, costs not met by
the Montana funding scheme;
13. Special education, although legally required, was not fully funded,
creating a competition between regular student and special education
student needs;
14. In designing the Montana funding system, no effort was made to
determine the components of a basic system of quality education, nor to
relate funds provided to the necessary costs incurred in providing that
education;
15. The cost study done in Montana by Augenblick & Myers, commissioned
by the Montana School Boards Association, was ignored by lawmakers;
and,
16. The testimony of Dr. Lawrence Picus of the University of Southern
California (who also testified for Defendants in the instant action) was
found to lack credibility in that, while testifying for the defense in Kansas
and Massachusetts he had opined those systems were equitable and thus
constitutional, but in Montana (while testifying for the plaintiffs) he
opined Montana’s funding was inadequate and violative of constitutional
requirements- - -both opinions being based astonishingly on undisputed
numbers showing Montana’s system more equitable in virtually every
measurement than either Kansas or Massachusetts. In other words, Dr.
Picus “danced with the girls that brought him.”
In reviewing these Montana findings, Judge Sherlock observed that some of the
adverse effects of Montana’s underfunding were prospective. In that regard, he held:
This Court takes into account the fact that some of the
damage that the educators testified to at trial is prospective
in nature. However, this evidence is persuasive and
relevant. Just as the Montana Supreme Court did not feel it
necessary to wait for “dead fish [to] float on the surface of
our state’s rivers and streams before its farsighted
environmental protections can be invoked” (MEIC, ¶ 77),
this Court finds that it should not have to wait until
Montana’s school system collapses in financial ruin prior to
entering an order [in] this case.
In Montana, like Kansas, the Defendants raised three principal defenses: “(1)
Montana’s relative spending in light of its fiscal capacity compared to other states; (2)
Montana’s ability to recruit and retain quality teachers; and (3) achievement levels of
Montana students as measured by available standardized tests.” On these points, Judge
Sherlock concluded as follows: (1) As to fiscal capacity, he held “state-wide fiscal
difficulties cannot justify an unconstitutional funding system. 236 Mont. at 54, 769
P.2d 690. The constitution says what it says and does not allow for such a defense.”
(2) As to teacher salaries, he found that “Montana teachers’ salaries have been lagging
behind national averages.” (3) Concerning standardized test results, he found that the
testimony of Montana’s “boots on the ground” educators “trumped” statistical
arguments of proffered “experts” convincing Judge Sherlock that state-wide average
test scores do not measure the adequacy of education for any particular student. He
also stated that: “The State also relies on evidence that Montana’s students do well on
standardized national tests. Defendants’ [exhibit] sets forth various encouraging
statistics concerning Montana’s students’ achievement on the National Assessment of
Education Progress (NAEP) test and on college entrance examinations. The State
attempted this same defense Helena Elementary I, and it was rejected there.”
Accordingly, he found all defenses lacking in merit.
If the findings of Judge Sherlock sound familiar, it is perhaps because they are
nearly identical to many of those made by this Court on December 2, 2003 with respect
to Kansas.
It is apparent, then, that although courts across the country have taken different
approaches to resolving the unconstitutional nature of their school funding statutes, all
have acted to enforce their constitutions. Nearly all have given the legislative and
executive branches of government an opportunity to first remedy the violations
themselves. After failed attempts (or no attempts at all) to remedy the constitutional
violations, some courts have singlehandedly taken over public schools, while others
have appointed special masters to craft and impose new school funding schemes, or
have, in some instances, handed down their own school funding provisions. The time
may come when this or other Kansas courts will be forced to take such action, and in so
doing, place the balance of power between the branches of government directly at issue
for the sake of compelling compliance with our constitutions. But not yet.
Section V: Remedy
In the Court’s view, the next logical and correct step is not for the Court to take
charge of the school system or to write a new school finance law but instead to simply
declare the funding statutes, already found unconstitutional, to be also void as they
apply to the funding of our public schools. As previously noted, the Court has already
provided one opportunity for the Legislature to correct the noted defects while allowing
the unconstitutional funding scheme to remain in place and the schools to remain open.
Since that course of action was ineffective to compel compliance with our
Constitutions, the Court’s next chosen course of action is to enjoin the use of all
statutes related to the distribution of funds for public education, this time with the
schools closed. This action by the Court will terminate all spending functions under the
unconstitutional funding provisions, effectively putting our school system on “pause”
until the unconstitutional funding defects are remedied by the legislative and executive
branches of our government. Although this action may delay our children’s education
slightly (should the other branches fail to respond quickly), it will end the inadequate
and inequitable education being provided now and the disparate damage presently
being done to the most vulnerable of our children.
This remedy should not be a surprise to Defendants. In fact, the Court
telegraphed its likely remedy in its December 2, 2003 Preliminary Interim Order when
it made the following statement:
Accordingly, this Court will withhold its final order and
judgment in this cause until July 1, 2004. This delay will
give the executive and legislative branches of our
government the luxury of a full legislative session (while
our schools remain open) to correct the Constitutional flaws
outlined in this opinion.
(Emphasis added).
It should also be quickly added that the option of the Legislature and the
Governor now to do nothing is simply not an option. The Constitution requires the
State of Kansas to establish, maintain, and finance public schools to provide a suitable
and equitable education for all Kansas children. Under the Constitution, they simply
have no choice and neither does this Court.
Section VI: Elements of a Constitutional Funding Scheme
Although there must be literally hundreds of ways the Legislature could
constitutionally structure, organize, manage, and fund public education in Kansas
,
whatever plan is ultimately agreed upon must contain certain basic provisions in order
to pass constitutional muster:
1. The Legislature should first determine the structure and organizational
form it finds best for our schools. As the Court has previously held, it is
the duty of the Legislature to not only fund but also to manage our
schools. If there are expensive inefficiencies in the present structure and
operation of our schools, the Legislature has the power to correct them.
Such corrections might well reduce significantly the total dollars needed
to provide a suitable education for our children. As examples, it is for the
Legislature to determine the number of school districts, the size of those
districts, what size of schools are most desirable for a suitable education,
and whether some educational services can be efficiently outsourced or
regionalized. This power rests solely with the legislative and executive
branches of our government. It is not only their prerogative but their
constitutional duty to use this power.
2. Once the structure and organizational form of the schools have been
determined, the Legislature should next determine the actual costs of a
“suitable education” for every Kansas child within that configuration.
“Suitable education,” as used in this opinion, has been defined to mean
one which “provide[s] all Kansas students, commensurate with their
natural abilities, the knowledge and skills necessary to understand and
successfully participate in the world around them both as children and
later as adults.”
3. The Legislature must then, as required by our Constitution, provide
adequate total funds sufficient to fund those actual costs of that suitable
education for every Kansas child.
4. In so doing, the Legislature must also ensure that each and every child is
treated equally. Accordingly, any per pupil differences in funding must
be justified by actual differing costs necessary to provide a suitable and
equal education for that child. In this regard, it is fair to observe that, as
established by the evidence in this case, some children are more
expensive to educate than others (especially the poor or at-risk; the
physically and mentally disabled; racial minorities; and those who cannot
or are limited in their ability to speak English). Accordingly, differences
in per pupil spending, if any, will be found constitutional if they are
premised on differences in the actual costs incurred to provide an
essentially equal educational opportunity for each child. In other words,
the Legislature is not required to furnish each school or each school child
with the same exact amount of funding, provided that any differential in
funding is justified by a rational explanation premised on the varying
actual costs incurred in providing essentially equal educational opportunities for each of those children.
5. Because of Constitutional Equal Protection requirements, the Legislature
must further ensure that the funding scheme does not disparately and
adversely impact any category of Kansas children. A system based on
actual costs to educate is thus the only fair and measurable way to
guarantee this right, as any other system will inevitably lead us back
down the well-worn path of political influence and compromise, all at the
expense of our children’s educations.
6. To ensure that the funding scheme remains constitutional, the new plan
must also provide an effective and permanent mechanism to oversee its
implementation, operation, and future adjustment. Without this built-in
system of review and adjustment, there is no doubt that even a new
funding scheme would quickly begin to resemble the present
unconstitutional one. That is our unfortunate history. At a minimum, this
mechanism should:
(a) Provide actual cost information from the school
house upwards in the form of school-based
budgeting or some other mechanism designed to
reveal the actual costs of providing a suitable
education for each child now and in the future.
(b) Provide officials with adequate power to monitor the
implementation and operation of the funding
scheme, with authority to adjust its provisions on
account of changed circumstances and for inflation,
and with authority to continually evaluate and adjust
the plan to ensure there is always a direct
relationship between the actual costs of its
components and the funds it provides.
7. The new funding plan must provide resources necessary to close the
“achievement gap” and comply with state accreditation standards, No
Child Left Behind, and all other relevant statutory and rule requirements.
8. The new funding plan must be all-inclusive. It must be premised on the
legal fact that every cent of public funds reaching our schools are “state”
funds (except for federally provided funds) which must be considered in
the equalization analysis. Every child is a Kansas child with an equal
claim to a suitable education. The plan, therefore, must address every
school financial need, from teacher salaries, to the building and
maintaining of schools, to the purchase of crayons and computers, to the
costs of special education, to transportation and food costs and every
other aspect of modern education.
9. This new funding plan must not contain:
a. Wealth-based, local funding options which cause per pupil funding
disparities;
b. Special “weights” which favor some children and some locales
over others;
c. Geographic considerations which result in unfair per pupil funding
differentials not related to actual costs incurred in providing equal
educational opportunities for individual children;
d. Unnecessary complexity of the type which has previously
prevented both legislators and the public from comprehending
both the inequity and the inadequacy of the present school finance
system;
e. Special local or other funding authority benefitting only some
children;
f. Any funding concept which is not based on actual costs for every
child;
g. Unequalized “local” funding options, which by their nature are
more available to wealthy districts both politically and in the
revenues generated;
h. Any revenue source which requires local approval, thus creating
inequities between places and children.
i. Special fund categories, such as special education, which are not
tied to actual costs and which are not fully funded.
j. Quality or performance mandates for which funds are not
provided; and
k. Any funding mechanism which deprives schools with “expensive
to educate” students of the funds necessary to successfully teach
them (as low enrollment weighting does in the current system, for
example- - - although if cost studies reveal that it actually costs
more per pupil to operate necessarily small schools, differentials
premised upon those actual costs would be permissible, provided
such funding does not, in turn, disadvantage students in other
schools).
To draft a funding scheme which is constitutional, the Legislature could well
begin by seeking truthful answers to the questions the Legislature itself posed to the
legislative coordinating council during the 2001 session in K.S.A. 46-1225 in the
following words:
a. The legislative coordinating council shall provide for a
professional evaluation of school district finance to determine the
cost of a suitable education for Kansas children. The evaluation
shall include a thorough study of the [current funding scheme]
with the objective of addressing inadequacies and inequities
inherent in the act. In addition to any other subjects the legislative
coordinating council deems appropriate, the evaluation shall
address the following objectives:
(1) a determination of the funding needed to provide a
suitable education in typical K-12 schools of various
sizes and locations including, but not limited to, per
pupil cost;
(2) a determination of the additional support needed for
special education, at-risk, limited English proficient
pupils and pupils impacted by other special
circumstances;
(3) a determination of funding adjustments necessary to
ensure comparable purchasing power for all districts,
regardless of size or location; and
(4) a determination of an appropriate annual adjustment
for inflation.
b. In addressing the objectives of the evaluation as specified in
subsection (a), consideration shall be given to:
(1) The cost of providing comparable opportunities in
the state's small rural schools as well as the larger,
more urban schools, including differences in
transportation needs resulting from population
sparsity as well as differences in annual operating
costs;
(2) the cost of providing suitable opportunities in
elementary, middle and high schools;
(3) the additional costs of providing special
programming opportunities, including vocational education programs;
(4) the additional cost associated with educating at-risk
children and those with limited English proficiency;
(5) the additional cost associated with meeting the needs
of pupils with disabilities;
(6) the cost of opening new facilities; and
(7) the geographic variations in costs of personnel,
materials, supplies and equipment and other fixed
costs so that districts across the state are afforded
comparable purchasing power.
Let the Court be crystal clear. If school funding is not based on actual costs
incurred by our schools in providing a suitable education for our children, no one, not
this Court, not the Supreme Court, not the schools, not the public, and not even the
Legislature itself will ever be able to objectively determine whether that funding meets
the dual requirements of our Constitution, those being 1) adequacy and 2) equity. This
is why the Courts of our sister States have moved unanimously and in a rising tide to
this position
, and that is the absolute essense of this Court's ruling in the case at bar.
Section VII: Final Observations
Great discretion is granted by our Constitution to the Legislature to devise,
create, and reform education in Kansas. Obviously, educational needs, and
concomitant costs, will vary from place to place, from child to child, and from time to
time. The mandate of our Constitutions is to furnish each child both a suitable
education and an educational opportunity equal to that made available to every other
child. While much focus in this case has been drawn to the alleged “billion dollar
adequacy price tag” contained in the uncontroverted evidence presented to this Court
(which was based on the current legislatively authorized school structure and
management model), there are many factors, other than mere dollars, which the
Legislature may consider to remedy the State’s present unconstitutional funding
scheme. Some of those factors would cost more, some less. As previously observed,
the Constitution places not only the duty to fund, but also the duty to effectively
organize and manage the Kansas educational system squarely on the Defendants. If
more cost-effective organizational structures and management techniques are available,
then Defendants certainly have the authority to implement those improvements. In
addition, Defendants are empowered to prescribe and control how the funds provided to
public schools are used. If funds are presently being squandered or misused in some
schools, Defendants are likewise empowered to initiate policies and programs to
correct any misuse.
Much of the reported public comment by legislators during this past regular
legislative session centered on the impact any tax increase necessary to fund education
might have on our state’s economy and its legislators, particularly in an election year.
In this connection, the Court takes judicial notice of the webpage of the Kansas
Department of Revenue, http://www.ksrevenue.org, a thorough study of which is telling.
In this official government document, it is revealed that as a result of the
significant tax cuts passed by the Kansas Legislature during the past ten years, the state
has forfeited nearly $7 billion in funds which it would have otherwise had in the
treasury. The depletion for 2005 alone is $918 million! The significance of these
statistics is that it was during this precise period of time that the present school funding
scheme became unconstitutional, in significant part through inadequate funding.
According to the undisputed evidence presented at trial, without any changes in the
structure and management form of Kansas schools, the state needs to add nearly a
billion dollars to the funds furnished our schools to bring them into constitutional
compliance. By coincidence, a billion dollars is very close to the revenue dissipation
brought about by the legislative tax reductions during the current fiscal year alone. In
other words, the people of Kansas provided the funds needed to educate our children, it
was the Legislature which sent them away.
Although ordinarily it is not the Court’s role to direct the Legislature on how to
levy taxes or on how to spend the funds it does collect, this case is the exception. The
Constitution provides virtually no mandatory state programs or services, except for the
education of our children. If the Legislature deems a tax increase (or a restoration of
taxes) inappropriate to adequately fund education, it most certainly has the authority to
make that decision. However, it has no choice when it comes to funding education.
Under the Constitution, it simply must do it and do it adequately. Accordingly, other
programs and services not required by the Constitution may ultimately face termination
or reduction if the Legislature elects to provide no additional revenue and adequate
funds are not otherwise available to provide for both constitutionally mandated
education and those programs and services which are merely discretionary.
VIII: Order of Restraint
The Court directs Plaintiffs to prepare for the Court’s consideration a proposed
order of restraint, punishable by contempt, directed to the following individuals and
classes of individuals: the Kansas State Treasurer, all county treasurers, relevant city
fiscal officers, the boards of all school districts, and to any other individual or public
body which furnishes or expends funds for public schools.
This order of restraint shall command the individuals and classes of individuals
served to cease and desist the expenditure of funds under all education funding statutes
for the purposes of operating schools (including, but not limited to K.S.A. 72-6405, et
seq., the School District Finance and Quality Performance Act; K.S.A. 72-8807, et seq.,
the capital outlay funding provisions; and K.S.A. 72-961, et seq., the special education
excess cost provisions, and all other relevant statutes designed to authorize
expenditures for Kansas K-12 education). Plaintiffs shall cause this order of restraint to
be served on or before June 14, 2004 and make due return thereof. The order of
restraint shall take effect by its terms on June 30, 2004.
IX: Jurisdiction and Costs
The Court specifically retains jurisdiction to:
a. Determine whether the violations outlined in its December 2, 2003
decision have been corrected and, if so, to dismiss this case.
b. Issue such further orders and take such further steps as may be required to
enforce our state and federal constitutions if the other branches of
government fail to do so.
c. Determine final costs, fees, and expenses and to assess them as law and
equity may require.
IT IS SO ORDERED this 11th day of May 2004.
______________________
Terry L. Bullock
District Judge