M EET P APER , R OCK , S CISSORS : H OW S CHOOL F UNDING I MPACTS THE - - PowerPoint PPT Presentation

READING, WRITING, AND ARITHMETIC MEET PAPER, ROCK, SCISSORS: HOW SCHOOL FUNDING IMPACTS THE THREE BRANCHES OF GOVERNMENT

PRESENTED BY:

Alan L. Rupe Lewis Brisbois Bisgaard & Smith LLP alan.rupe@lewisbrisbois.com

• Present text of Article 6 of the Constitution (the

Education Article) was adopted in 1966

• “[T]he people secure[d] themselves what is of first

importance by placing binding responsibilities on the legislative, executive, and judiciary documents”

What is Article 6?

What is Article 6?

• “the people secure[d] themselves what is of first

importance by placing binding responsibilities

• n the legislative, executive, and judiciary

departments”

• “[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”

Why do we care about Article 6?

• Most school finance legislation arises from the

responsibilities imposed upon the State by the language of Article 6

• That has not always been the case

Why do we care about Article 6?

• Caldwell (1972), Knowles (1976), Mock (1990)

– Main focus: did the education provided deprive students

• f equal protection under federal and state

constitutions?

• Mock raised allegations under Article 6

– My first school finance case – District Court Judge Terry L. Bullock issued an opinion in October of 1991 that noted, “No controlling authority exists in Kansas interpreting the meaning of these constitutional provisions”

Evolution of Article 6

• Mock changed school finance litigation

– Incorporated “the Rose standards” from Rose v. Council for Better Education, 790 S.W. 2d 186 (1990) – Set forth 10 “Analytical Queries” that have formed the basis for Article 6 challenges – Moved away from just looking at equality, “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.”

Evolution of Article 6

• Before any further litigation in Mock, the Governor

and legislative leadership appointed a task force to investigate legislative alternatives which would satisfy the 10 “Analytical Queries”

• This led to the adoption of the School District

Finance and Quality Performance Act (the system in place at the time that Gannon was filed)

Evolution of Article 6

• Unified School District Number 229 (1994)

– Brought equal protection claims and Article 6 claims – First time the Kansas Supreme Court considered the merits of a school finance case – Ultimately upheld the SDFQPA as constitutional – Recognized the ability of school districts to make an Article 6 challenge

Evolution of Article 6

• Montoy (1999)

– The Montoy lawsuit was initially filed in 1999, five years after the Supreme Court’s decision in USD 229 – While Montoy asserted Article 6 claims, it also asserted equal protection claims (which had historically faired better) – In 2001, Judge Bullock (same judge as in Mock) dismissed the lawsuit just prior to trial – Relied on USD 229 – Determined that pursuant to USD 229, the Legislature has the ultimate responsibility for determining what is suitable financing

Evolution of Article 6

• Montoy I (2003)

– Supreme Court disagreed with Judge Bullock – The Court found genuine issues of material fact to exist as to whether the Legislature complied with its

• bligations under Article 6

– This case proceeded solely on Article 6 and not EP – Remanded

Evolution of Article 6

• Remand After Montoy I (2003)

– Judge Bullock conducted a bench trial on the Article 6 question – Lasted 8 days – 1,400 pages of transcript – 9,600 pages of exhibits

Evolution of Article 6

Evolution of Article 6

• Montoy I (2003)

– Judge Bullock ultimately held that the SDFQPA “stands in blatant violation of Article VI of the Kansas Constitution” – SIDE BAR: Plaintiffs seriously considered seeking recusal of Judge Bullock before the trial and decided not to at the last minute

Evolution of Article 6

• Montoy II (2005)

– Supreme Court affirmed the finding of unconstitutionality – Stayed issuance of a mandate on its decision and allowed the Legislature to cure the unconstitutionality – Noted that there are “literally hundreds of ways” the Legislature could comply with Article 6 – “We do not dictate the precise way in which the legislature must fulfill its constitutional duty. That is for the legislators to decide, consistent with the Kansas Constitution.”

Evolution of Article 6

• Response to Montoy II (2005)

– State adopted new legislation that modified the SDFQPA (House Bill 2247)

• Montoy IV (2005)

– Supreme Court considered whether H.B. 2247 cured the unconstitutionality – Determined that it did not appropriately consider (1) actual costs of providing adequate education and (2) the equity of the distribution of that funding – Developed the two-part inquiry that guided much of the Gannon litigation

Evolution of Article 6

• Montoy IV (2005)

– Frustrated that State did not comply, the Court provided it with more guidance – Ordered that the State implement a minimum increase

• f $285 million above the 2004-05 school year funding

level for the 2005-06 school year – This was roughly 1/3 of the total increased funding needed to reach adequacy, as shown by the State’s own cost study

Evolution of Article 6

• Reaction to Montoy IV (2005)

– State enacted S.B. 549 – Increased base funding over three-year period – If fully funded, would have provided $755.6 million in additional annual funding to schools

• Montoy V (2006)

– Supreme Court found that S.B. 549 was in substantial compliance with its previous orders – Specifically did not hold that the new funding scheme was constitutional

Evolution of Article 6

• SIDE BAR: The Legislature ultimately complied,

but was not always cooperative

• Attempted to influence school finance litigation

through legislation

• Raised mandatory retirement age for district court judges but not

Supreme Court justices

• Provided pay raises to all Kansas judges except Supreme Court

justices

• Adopted a law requiring future plaintiffs provide 120 days notice

before filing a school finance lawsuit

• Required that future school finance lawsuits be decided by a three-

judge panel

Evolution of Article 6

• February of 2009

– Governor and Legislature begin to cut school funding – Education funding was ultimately reduced in excess of $511 million per year

• June of 2010

– Filed new statutorily-required “notice of claims” – Waited 120 days, as required

• November of 2010

– Gannon lawsuit filed

The Gannon Litigation

• June 4, 2012

– Gannon trial to three-judge panel (first since Legislature adopted new law) – 16 day trial stretched over 4 weeks – 44 witnesses – 662 exhibits – 3,672 pages of transcript

The Gannon Litigation

• 2012

– The Legislature continues massive tax cuts – SIDE BAR: Judge Theis pointed out at trial that the $1.2 billion in tax cuts was almost exactly equal to the education deficit – The opinion stated:

“It seems completely illogical that the State can argue that a reduction in education funding was necessitated by the downturn in the economy and the state’s diminishing resources and at the same time cut taxes further, thereby further reducing the sources

• f revenue on the basis of a hope that doing so will create a boost

to the state’s economy at some point in the future.”

The Gannon Litigation

The Gannon Litigation

The Gannon Litigation

• January 11, 2013

– Three-judge panel unanimously issued a decision in Gannon finding that the school finance system was unconstitutional – Panel enjoined the Kansas Legislature from spending less than $4,492 per pupil on education, an approximate total increase of $500 million in funding

The Gannon Litigation

• Gannon I (March 7, 2014)

– Supreme Court issued a 110-page ruling – Split the matter into two separate parts: equity and adequacy – Clearly and succinctly defined the test that applies to each of the two constitutional requirements (arguably for the first time)

The Gannon Litigation

• Gannon I (March 7, 2014)

– Equity test

School districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort.

– Adequacy test:

whether the public education financing system provided by the legislature for grades K-12 – through structure and implementation – is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989)

The Gannon Litigation

• Gannon I (March 7, 2014)

– Affirmed the Panel’s equity decision – Remanded the issue of adequacy for new findings – SIDE BAR: We “won” on the issue of equity – an issue that we almost did not include in the original Petition

The Gannon Litigation

• December 30, 2014

– On remand, Panel determined no new trial was necessary – Found that the State was not in compliance with the adequacy test set forth in Gannon I

The Gannon Litigation

• March 25, 2015

– Governor Brownback signed Senate Bill 7 (S.B. 7) (“the block grant bill”) – Schools now funded by “block grants” – Funding frozen into unconstitutional, inadequate levels – Abandoned the SDFQPA, which had been comprehensive and vetted by years of litigation

• March 26, 2015 (the very next day)

– We filed Motion for Declaratory Judgment and Injunctive Relief seeking an order that S.B. 7 is unconstitutional

The Gannon Litigation

• June 26, 2015

– Panel issued an order that S.B. 7 was unconstitutional – Violated the equity and adequacy test – It “stands, unquestionably and unequivocally, as constitutionally inadequate in its funding”

The Gannon Litigation

• June 26, 2016

– Two years after Gannon I affirmed the Panel’s decision that the funding was inequitable, the Court ordered that the equity issues were reserved – Took two years, two additional trips to the Kansas Supreme Court, and a special legislative session – A small portion of the lawsuit as compared to adequacy – Potential foreshadowing for what Plaintiffs face if successful on adequacy portion of lawsuit

The Gannon Litigation

• September 21, 2016

– Two and one-half years after Gannon I, the Court took

• ral argument on the adequacy portion of the lawsuit

– Still await a decision

The Gannon Litigation

The Gannon Litigation

The Gannon Litigation

• Important Lessons from Gannon Oral Argument

The Gannon Litigation

• Important Lessons from Gannon Oral Argument

The Gannon Litigation

• Watch this…

Predictions Going Forward

• Three potential outcomes:
• 1. The one Justice Biles hinted at in the previous clip
• 2. A finding that the system meets the minimal

constitutional standards

• 3. The remedy utilized in Montoy I: declare

unconstitutional and defer to Legislature as to how to fix

• We are hopeful for #3

Predictions Going Forward

READING, WRITING, AND ARITHMETIC MEET, PAPER, ROCK SCISSORS: HOW SCHOOL FUNDING IMPACTS THE THREE BRANCHES OF GOVERNMENT

PRESENTED BY:

Alan L. Rupe Lewis Brisbois Bisgaard & Smith LLP alan.rupe@lewisbrisbois.com