SPECIAL SESSION ENDS WITH COMPROMISE
Late Wednesday, July 6, 2005, both the House of Representatives and the Senate passed a bi-partisan education funding bill responding to an order by the Kansas Supreme Court to increase education funding. On Friday, July 8, 2005, the Kansas Supreme Court ruled that the Legislature is in compliance with its order, although retained jurisdiction pending a cost-study analysis.
The Supreme Court ordered the Kansas Legislature to allocate an additional $143 million in funding to Kansas schools by July 1 as a remedy to a 1999 lawsuit against the state by parents and students of different school districts across the state. The lawsuit argued that education was not adequately funded and the court agreed. After the court made its ruling, the Governor called a special session beginning June 22 to address the order. The Senate got a head start on finding a remedy by beginning work on June 20 in committees to find a solution. The result was a plan to add money to schools that was passed very early in the special session. Several plans passed the Senate before a compromise with the House was reached.
The bill, House Substitute for Senate Bill 3, provides the following funding:
Base State Aid per Pupil (BSAPP), additional $35 (for a total increase over last year of $150 per student) — $19.2 million.
Growth in Local Option Budget due to increased BSAPP – $7.6 million.
At-risk weighting, from 0.145 to 0.193 – $27.7 million.
Special education, increase from 85% to 89.3% of excess costs for 2005-06 school year and 92% for 2006-07 – $13.5 million next year.
Capital Outlay, equalize to the 8 mill levy, a benefit to ease property tax burden in poorer districts, - $18 million, all local property tax relief.
Local Option Budget, same as what was stayed by the Supreme Court in HB2247, except equalized to the 27% – $6 million. Again, local property tax relief.
Extraordinary Declining Enrollment, also stayed by the Court, except that it would be equalized – no estimate of cost because it would probably be used only by Shawnee Mission.
Increase state aid for Local Option Budget in districts with less assessed valuation per pupil, - $27.7 million, all local property tax relief.
Correlation Weighting, reestablish with threshold at 1,662 student enrollment – $28.7 million, assistance for middle size and larger schools.
That adds up to $148.4 million, of which $43 million is local property tax relief. Besides sending extra money to schools, the plan negotiated today also makes some policy changes. Some are practical in nature. School districts, for example, would have until Sept. 7 this year to submit their budgets to county clerks. A 4 % cap on contingency funds would be increased to 6% for one year only to allow districts to make best use of extra funding.
Other provisions address the school funding lawsuit. One provision forbids courts from closing schools. This puts into place statute to stop schools from closing, as opposed to the constitutional amendment some members of the Legislature wanted to pass. Another provision would require anyone looking to sue the state to file written notice with the Legislature, and would have to wait 120 days for the Legislature to respond. School districts couldn’t use money from their general operating budgets to sue the state, although they could pay for lawsuits from local property taxes. The Legislature could hire an attorney to represent it in school finance litigation, though the lawyer can’t be a legislator or a member of a legislator’s law firm. The responsibility for approving and distributing state education aid would shift from the state Board of Education to the Legislature through June 30, 2007. Though the bill clarifies how a cost study will be done, it also says that study – or any others, past or present, wouldn’t be binding.
CONSTITUTIONAL AMENDMENTS FAIL
This special session was bogged down with attempts to amend the Kansas Constitution in order to limit the authority of the courts. The focus on limiting the power of the court was a diversion and added days to our work in Topeka. Constitutional amendments should not be taken lightly. The Kansas Constitution is our most fundamental state law and should only be changed with full consideration and debate.
There were several amendments that were introduced this special session:
HCR 5003 would have amended Article 2, Section 24, the Legislat ure Article. Currently, that section prohibits money from being “drawn from the treasury in pursuance of a specific appropriation by law.” This amendment would add a provision stating that “[t]he executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money.” The attempt is to prohibit the Kansas Supreme Court from rendering judgments that order the Legislature to provide more funding for public schools or anything else. The amendment specifically says that any order directing the legislative branch to make an appropriation of money shall be unenforceable as of the date the amendment is passed. This amendment could have farther reaching consequences. For example, in 2001 Governor Graves was forced to do allotments when the state was in danger of running out of money. Graves moved appropriations around, for instance $20 million from the Children’s Trust Fund to state general fund to keep the state in the black. Governor Hayden did cuts across the board, changing the appropriations approved by the Legislature because of a similar budget crisis.
HCR 5002 would have amended Article 6, the education Article. It states that “[t]he courts of the state of Kansas shall have no jurisdiction to review the financing of public education or the distribution of education expenditures in the state, or to apply section 6 of article 6 [the education funding article) of this constitution. Determining the structure and level of educational finance is a power exclusively reserved to the elected representatives of the people of Kansas and the governor.” This would have removed the right of citizens to challenge the government and seek redress in court.
Another amendment would have prohibited the Supreme Court from closing schools as a remedy for an education lawsuit. This amendment would have limited the court’s options in seeking redress for the plaintiffs. No one wants schools to close, but the proper way to keep schools from closing was for the Legislature to respond to the order and keep them open. This amendment would have been the first of its kind to limit the court’s options in remedy and could have had unintended consequences.
All amendment proposals call for a statewide election in late August or early September, which supporters estimate could cost $1.7 million. The election date would be tied to when the proposal passed the Legislature.
Democrats stood united against all constitutional amendments. We felt that this special session was the time to fund schools, not to go against the court. History gives guidance on this issue. The founders of this country were very concerned about government acting in haste, in the heat of “public passion.” Therefore, they created a legislative process that is intended to be deliberative and slow. Second, they intended to have a judiciary that is independent enough to protect the rights of the individual. As James Madison put it, protecting the rights of the individual is essential to protecting “the rights of property.” Third, do we hurriedly, in a special session without thorough public hearings, put an amendment on the ballot of a special election (at a cost of $1.7 million) in response to one court case with which we have some disagreement? This is not a case of one district judge on a tangent, but a unanimous decision by the Kansas Supreme Court.
Constitutional amendments are not easy to change and if there were unintended consequences not given full consideration, the state could be in for some trouble. It was only this year that the Legislature had to come in and fix a law passed in 2004 that had unintended consequences. We don’t want a “clunker” law to become a part of the cornerstone of Kansas government. Furthermore, constitutional amendments should be considered in the regular session when our anger has been tempered by time.
ATTEMPTS TO FUND EDUCATION WITH GAMING FAIL
Many lawmakers came to Topeka for the special session hoping that a gaming plan would help ease the burden of additional spending for public education. Several proposals emerged, but no measure managed to pass out of the Senate. The first measure would have allowed resort-type casinos in Wyandotte County and southeast Kansas and slots at the five pari-mutuel tracks. It creates a problem gambler program and an Educational Opportunity Trust Fund dedicated to funding education. The fund would be used to provide new funding for public schools and higher education. Three additional sites could be selected by a site selection committee if the voters in the county approve first.
The second proposal would have allowed resort-style casinos in Wyandotte County and southeast Kansas, and slots at the five pari-mutuel tracks in Kansas City, KS, Wichita, Frontenac, Anthony and Eureka. After five years, other areas could seek casinos. The measure is expected to bring approximately $112.5 million in up-front payments. This version would increase the state’s take from slots at the tracks from 24% to 40% — a jump from $41 million to $69 million in the first year.
Other issues complicated the debate. Veterans and fraternal organizations want permission to have slot machines in their halls, and the Kickapoo and Sac and Fox tribes are pursuing compacts with the Governor for casinos in Wyandotte County and southeast Kansas. The proposals by the tribes, however, require approval for putting land into trust that is not now tribal land. That process takes years and no new land-in-trust approvals are anticipated. To solve our problem, the funding to the state must flow quickly.
COST ANALYSIS TO BE USED TO DETERMINE FUNDING
When the Kansas Supreme Court ordered lawmakers to come up with $143 million for schools by July 1, justices based their ruling on the costs of education calculated by the Denver-based consulting firm Augenblick and Meyers in 2001. The study, paid for by lawmakers and released in May 2002, recommended an 8.1 percent increase in school funding. That would have raised the base state aid per pupil to $4,650 in 2000-2001 dollars.
This study is essentially “re-doing” the Augenblick and Meyer study commissioned by the legislature in 2001, but using narrower criteria and a different methodology. Post-Audit will study the cost to provide an education that meets the requirements of State law for an accredited school for regular education students and how costs vary by district size and location. Post-Audit will review relevant State laws and Board of Education regulations covering such things as high school graduation requirements, admissions requirements established by the Board of Regents pursuant to K.S.A 76-716, State scholarship requirements established by the Board of Regents, and courses of instruction-required at the various grade levels.
The study will also look at the additional costs incurred to provide an education that meets the requirements of State law for an accredited school for special-needs students and how these costs vary by district size and location. The study will also review the distribution of special needs funds to determine if students being counted for the purpose of distributing these funds are actually receiving the applicable services.
The study will review current educational research that shows the correlation between the amount of money spent on K-12 education and educational outcomes. The amount of state funding versus local funding being used to fund state mandated educational services will also be reviewed. In order to complete this study, current expenditures will be reviewed along with interviews with administrators and educators to examine variations in expenditures and necessities not being met. The Division will use all current staff to complete the study, as well as hire a new Post-Audit team that will continue to monitor management practices in school districts. This team will conduct audits at the direction of the 2010 Commission, an education monitoring body established by HB 2247, the original school funding plan from the 2005 session.
In their June order, the court asked lawmakers to increase funding by $143 million by July 1, 2006, and then increase to full suitability, based on Augenblick and Meyers or less if another cost-study showed less dollars could still be suitable. Full funding of Augenblick and Meyers would cost over $500 million in additional funds next year.