TOPEKA, Kan. (CN) – With one foot out the door, a Kansas governor leaves the state in an education funding crisis. No, not that governor. Kathleen Sebelius left the state in 2009 to become President Barack Obama’s Secretary of Health and Human Services. Now Gov. Sam Brownback, awaiting congressional confirmation for a diplomatic job, has given state lawmakers the sign that they’re on their own in Kansas’s long and unsuccessful struggle to fund its public schools adequately.
Kansas has been addressing, or failing to address the problem for 45 years. Twenty-five percent of that state’s students are deficient in math and reading skills, according to national tests.
Kansas ranked 31st in the nation in funding per student in 2015, according to Governing magazine. Its per capita spending of $10,040 was 12 percent below the national number of $11,392.
In his State of the State address Tuesday, Brownback urged lawmakers to increase public school funding by $600 million over the course of five years. But he offered no plan on how to do it, and did not suggest tax increases.
“Six hundred million dollars is a very significant investment,” said Brownback, a two-term Republican. “And Kansans expect to see students in every school in our state thrive and achieve, particularly our students who the court cited as being inadequately served under our current funding.”
The speech drew angry reactions from Republicans, including Kansas Secretary of State Kris Kobach, who is running for governor in a crowded field that includes Lt. Gov. Jeff Colyer.
“The Colyer/Brownback plan is another bill for hardworking, middle-class Kansas taxpayers,” Kobach said in a statement that mentioned Colyer first though it was Brownback who made the proposal.
State Rep. J.R. Claeys, R-Salina, one of the state’s more conservative lawmakers, had stronger words for Brownback’.
“The governor has waved the white flag of surrender from the dome, and tossed every ally he had left under the bus,” Claeys said. “Then put the bus in reverse. Then lit fire to the bus.”
State Rep. Brett Parker, D-Overland Park, a teacher, said he was unimpressed with Brownback’s sudden change of policy that was more in line with Democrats and moderate Republicans.
“As a teacher, Governor Brownback’s speech reminded me of a student who only recently remembered his final project is due,” Parker said in a statement. “After spending more than half of the time introducing people more popular than himself and killing time waiting out the applause, Governor Brownback was pleased to announce that Kansas should increase school funding. I hope he was not disappointed that we did not find his idea original or innovative.”
Brownback, who has been media-shy in his second term in office, offered a written statement about his plan on Wednesday.
“While I recognize the proposed budget has drawn criticism from legislators on both sides of the aisle, complying with the supreme court’s school finance decision is not optional,” Brownback wrote.
“I support the rule of law, and I will not stand to see schools closed because of inaction on our part. Thankfully the economy is stronger than it has been, however, we recognize the additional money to schools will strain our ability to address other core government functions in future budgets.”
Kansas faced enormous budget deficits after Brownback’s first-term tax cuts failed to bring in the jobs he promised.
Alternatives to court
By 2016 Brownback was tired of losing the legal battle over education funding. Elected in 2010 and again in 2014, he ran on a far-right platform based on tax cuts.
During his first term, he signed a bill that became one of the largest income tax cuts in the history of the state. Calling it a “real-life experiment,” Brownback told the rest of the nation that trickle-down economics could work by reducing taxes on the wealthy and exempting small businesses from state income taxes.
The experiment failed. The state had a hard time paying its bills, and suffered multiple downgrades to its credit rating. Tax revenue decreased as state expenses increased, led by education expenses.
Rather than admit that the tax cuts weren’t working and reverse course, Brownback had another idea: Ask Kansans to recall the state supreme court justices so he could replace them with justices who were sympathetic to his plans. That didn’t work either.
By 2016, Brownback was one of the least popular governors in the country. Kansas voters didn’t trust him to balance a budget, let alone select new justices for the state supreme court.
In 2017 a more moderate Legislature repealed the 2012 tax cuts, but the additional tax revenue was not enough. Even with an increased sales tax rate to 6.5 percent in 2015, Kansas couldn’t find the money to meet the supreme court’s standards.
This year’s legislative session features talk about proposing an amendment to the Kansas Constitution, in yet another attempt to bypass the courts. But even if an amendment passes with two-thirds vote in the state House and Senate, it will have to pass with Kansas voters.
The two-word problem
Article Six of the Kansas Constitution states: “The Legislature shall make suitable provision for finance of the educational interests of the state.”
The words “suitable provision” have given lawmakers headaches since the 1970s. The phrase was voted into the state’s constitution as an amendment in 1966.
Four key lawsuits in 40 years have forced the Kansas courts to define and clarify what that phrase means. In general, the courts have defined it to mean adequate and equitable funding of public schools.
In 1972, the Caldwell v. State lawsuit was filed in Johnson County. It made an equal protection argument to oppose the financing system that largely relied on school districts to finance themselves through local tax revenue.
The court ruled that the state had to provide equity, or more aid to poorer districts that did not have a large population or high property values to adequately fund schools.
The following year, lawmakers passed the School District Equalization Act (SDEA), which increased state aid to districts with fewer than 400 students.
Mock v. State, filed in 1990 in Shawnee County, challenged the SDEA formula, claiming that it did not achieve what it was set out to do. Judge Terry Bullock in a pretrial opinion made clear that adequacy was an important part of state education funding.
“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,” Bullock wrote.
As a result, lawmakers passed the School District Finance and Quality Performance Act in 1992. The massive reform changed the Kansas school funding formula by relying on state aid instead of local taxes to fund school districts, on a standard per-pupil formula.
In 1999 the state faced another education funding lawsuit, this time from school districts. Montoy v. State, which was filed in Shawnee County, made its way to the Kansas Supreme Court in 2005. The lawsuit again challenged the equity of the state’s financing formula, arguing that some poorer districts were underfunded compared to richer ones.
The supreme court agreed, and ordered the state to increase funding.
Lawmakers pumped in another $140 million, which the supreme court found still inadequate. Legislators returned back to Topeka for a special session and added nearly $150 million more on top of the previous increase.
In 2010, with tax revenue slumping due to the 2008 recession, lawmakers cut education funding under Democratic Gov. Mark Parkinson, who took over when Sebelius resigned. In response, 48 school districts filed another lawsuit claiming that schools were underfunded as a result of the cuts. Gannon v. State, in Shawnee County, made its way to the Kansas Supreme Court.
The court again found that the state funding failed to adequately and equitably provide funding to all school districts. Now, eight years later, the Legislature is still trying to dig its way out of the education funding lawsuits that have beleaguered it since 1972. The supreme court has given lawmakers until this summer to increase funding.
What happens next
Brownback’s budget proposal calls for increased spending on schools, but does not mention where $400 million of the $600 million increase will come from, other than proposed gains from a recovering national economy.
This leaves the burden to legislators in Topeka, who would almost certainly have to raise taxes to meet the budget proposal, though Brownback opposes tax hikes.
Some legislators think that other state agencies will have their budgets cut, or lawmakers will have to raise enough support for a veto-proof tax increase — which the Republican-led Legislature is unlikely to support.
A constitutional amendment might make it through the Legislature, but it would be a hard sell to Kansans who already have voted in favor of education over Brownback’s policies.
If a plan can’t be worked out in time, Kansas schools risk being closed by the supreme court this fall. In a midterm election year for the entire state House, that’s a scenario that could be more damaging to Kansas politicians than a tax increase.
So after 45 years of on-and-off litigation, the future of Kansas schools is still unclear — even whether they will open in the fall.