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January 17, 2013

On January 11, 2013, the three-judge trial court in Gannon v. State of Kansas issued a strong, unanimous decision in favor of plaintiff school children, parents, and school districts. The court held the current school funding system unconstitutional due to the underfunding of state education finance statutes, which are otherwise solid laws.

Criticizing the state for acting "in the absence of facts or ... in deliberate disregard of reliable facts available," the court observed that, slashing funding represents "a gamble," which is "unhelpful as policy and immensely and irretrievably destructive of our children's future." The court also wrote that "it appears the Kansas Legislature ... wholly disregarded the considerations required to demonstrate a compliance with Article 6, section 6(b)," one of the state constitution's education clauses.

Indeed, the court stated the historical fact that, "Matters intended for permanence are placed in constitutions for a reason -- to protect them from the vagaries of politics ... ." The full decision is available at Gannon Decision.

Kansas has a long and storied history of litigation seeking equal opportunity and a "suitable" education for all of the state's children. Prior to Gannon, the Kansas Supreme Court ordered cost-based, sufficient, and equitable funding in Montoy v. State (2006). As the Gannon court wrote, "throughout the litigation history concerning school finance in Kansas, wealth based disparities have been seen as an anathema, one to be condemned and disapproved." That history began with a 1942 ruling and continued through the supreme court's decisions in Montoy (2004-06).

In response to Montoy, the legislature and governor adopted a new funding system that brought better funding to school districts across the state. Designers of the new system intended it to adequately fund all schools and provide the necessary resources for children who cost more to educate, such as students from high-poverty backgrounds, those learning English, and students with disabilities. After two years of a phasing in process that was moving forward successfully, the economic downturn and extensive new tax cuts created state budget holes.

In response, the legislature and governor slashed school funding. Programs and services for children were cut in all districts, even while the state continued to require higher test scores from students and schools.

Coming soon, state adoption of the Common Core Standards will again ratchet up mandates. The court wrote that "projections of professionals at all levels agree these standards will increase the costs ... necessary to provide the resources to meet those goals."

During the trial, in a "battle of the experts," defendants trotted out the "money doesn't matter" argument that they have raised and lost in almost all of these cases. Eric Hanushek showed up again, along with Michael Podgursky, for the defendants, but they failed to convince the court. Instead, the court relied on plaintiffs' expert, Bruce Baker, and on Kansas educators to find that, of course, money matters in educating children. The expert opinions are summarized in Dr. Baker's Rebuttal Testimony.

The court's remedial order enjoins the State from (1) amending the school funding law in any way that provides less revenue than would be derived from setting the "Base" at $4,492 per pupil, and (2) amending the Local Option Budget (LOB) statute in any way that would create a wealth-based disparity, appropriate less than full funding of LOB equalization aid, or prorate LOB equalization aid due to under-appropriation.

The court also strikes down the "Capital Outlay" statute, to the degree that the legislature has not funded its equalization provisions. Significantly, the court's ruling empowers plaintiffs to enforce the order by returning to the court if violations are "reasonably apprehended."

Moreover, the court suggests the legislature evaluate and compensate the Kansas K-12 school system for additional costs that may accrue from the Common Core Standards or the federal NCLB Waiver.

The State says it will file an appeal to the Kansas Supreme Court, which stays the trial court order until the supreme court rules. On appeal, the supreme court will receive a long and detailed trial court decision, in which the three judges all agree, "from any perspective of the assignment of the burden of proof, that Plaintiffs have established beyond any question that the State's K-12 educational system now stands as unconstitutionally underfunded."

Without attempting to predict the course of events in Kansas this year, it is noteworthy that press reports of the decision include the possibility that legislators will try to amend the state constitution. The Lawrence Journal-World, for example, wrote that the "incoming Senate President Susan Wagle, R-Wichita, said Republican leaders may try to push through a constitutional amendment in time to be placed on the April 2 election ballot. Options that have been debated in the past include changing or eliminating the "suitable" funding requirement [in the constitution], or clarifying that it's the Legislature's job to define what is suitable," the newspaper reported.

Plaintiffs were represented by co-counsels Alan Rupe of Kutak Rock and John Robb of Somers, Robb & Robb.

Education Justice Press Contact:
Molly A. Hunter, Esq.
Director, Education Justice
email: mhunter@edlawcenter.org
voice: 973 624-1815 x19

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