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Published in Print: April 6, 2005, as States Resist Meeting K-12 Spending Levels Ordered by the Courts

States Resist Meeting K-12 Spending Levels Ordered by the Courts

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Kansas lawmakers are proposing to spend $145 million on education in response to a state supreme court decision declaring the state’s system of school funding unconstitutional.

Not nearly enough, plaintiffs in the finance case say.

First graders wait to go back to their dual language classroom at Northwest Elementary School in Dodge City, Kan.
First graders wait to go back to their dual language classroom at Northwest Elementary School in Dodge City, Kan. Funding for bilingual programs is part of the state's school finance debate.
—AP/Charlie Riedel

In Texas and Montana, plaintiffs are saying the same thing about legislative responses to their state courts.

And in New York, advocates of greater school funding are headed back to the courtroom because the legislature hasn’t acted on the highest state court’s 2003 order to fix funding for the New York City public schools.

More than ever, school finance plaintiffs are finding it is easier to win at trial than in the lobbies of the state capitol.

“The hard, cold reality is that while our state constitutions may reflect what we would like for all children, current school funding systems reflect what we are actually willing to pay for,” said John Dayton, a professor of education at the University of Georgia and an expert on school finance litigation.

The problem is especially acute now, Mr. Dayton and others said, because states are facing financial constraints as well as intense political pressure to rein in taxes.

Legislators “are more inclined to uphold their oath to not raise taxes than to uphold their oath to uphold the [state] constitution,” said Alan L. Rupe, the Wichita, Kan., lawyer representing school districts in the Kansas case.

Virtual Reality

But legislators counter that recent court orders have been too generous to schools.

“The court has set the bar so high as to make it virtually impossible in the realpolitik world in which we operate,” said New York Sen. Stephen M. Saland, speaking of the case pending in his state.

A trial court judge has ordered the state to increase New York City’s school operating budget by $5.63 billion—or 44 percent—over current figures. Such increases would put the state in compliance with the state’s highest court’s 2003 order to ensure all of the city’s students had the right to the “sound, basic education,” guaranteed in the state’s constitution.

“We are not the federal government,” the Republican chairman of the Senate education committee said. “We can’t go downstairs to the basement of the Capitol and print money.”

Kansas, Montana, and New York are the states currently under orders from their highest courts to fix their school finance systems. In another closely watched case, a Texas trial-court judge has declared the state system there unconstitutional, but the state attorney general has appealed the ruling to the state supreme court.

In Kansas, House and Senate leaders have agreed to a plan that would increase per-pupil funding for at-risk, bilingual, and special education students. It would also create a $20 million program to help districts improve student achievement in reading and mathematics in kindergarten through 3rd grade.

In addition, the bill would guarantee cost-of-living increases for future years and allow districts to supplement state funding by levying additional property taxes—something districts aren’t allowed to do now.

The $145 million in additional funds would amount to a 6 percent increase over Kansas’ current spending on precollegiate education.

Gov. Kathleen Sebelius, a Democrat, has not said whether she would sign the measure.

The 6 percent increase might be generous under other circumstances. But Mr. Rupe said the bill falls short of the Kansas Supreme Court’s order to overhaul how the state pays for its schools.

In its decision, the court highlighted a 2001 study that estimated Kansas was $800 million shy of providing services needed for a “suitable” education, which the Kansas Constitution guarantees. The decision called the study “competent evidence” in its January decision.

The bill “is not going to solve it,” Mr. Rupe said. “It’s not even going to be close.”

In Montana, plaintiffs have similar complaints about a Senate bill to address the December 2004 ruling declaring school funding inadequate.

The bill would increase funding by 7.5 percent over the next two years. That’s not enough to compensate for 12 years during which increases failed to keep up with inflation, say plaintiffs in the case.

“We might end up with some token relief, but not a remedy for the long term,” said Jack Copps, the executive director of the Montana Quality Education Coalition, a Helena-based coalition of 100 school districts.

Historical Problem

Such tensions between state courts and legislatures have been common over the past 30 years of school finance litigation. But the conflicts are more pronounced now for several reasons, scholars say.

Plaintiffs have focused on whether states provide adequate funding for schools since 1990. Those lawsuits have been more successful than the previous ones that sought an equitable distribution of school spending. In the past two years, plaintiffs have won almost every major school finance decision, losing only in Massachusetts’ highest court.

But since 2000, state budgets have been under especially intense pressure, observers say, both from a lagging economy and fierce opposition to tax increases.

“Under these circumstances,” Mr. Dayton of the University of Georgia said, “the tensions have increased dramatically between the various state courts ordering school funding reform and the state legislatures responsible for complying with these judicial orders.”

At several points in the past two decades, though, New York state had budget surpluses that could have been used to address the inadequate funding of New York City schools, said school finance expert Robert Berne. A senior vice president of New York University, he testified in support of the plaintiffs in the New York case.

But now that the state is still recovering from the economic fallout of the Sept. 11, 2001, terrorist attacks, he said, lawmakers are struggling to find the $1.4 billion a year in additional funding a state judge declared the city needs in each of the next four years. “A solution [now] will hurt in a way it wouldn’t have hurt when times were flush,” Mr. Berne said.

No New Taxes

In Texas, the legislature is in the process of rewriting its school finance and tax systems while it awaits a decision from the state supreme court.

A House bill would provide $3 billion in increases over the next two years for K-12 education, said Rep. Kent Grusendorf, the Republican chairman of the House education committee and the bill’s sponsor.

Under the bill, the schools in the state would receive an average 5 percent increase in per-pupil funding, Mr. Grusendorf said.

The plan would replace the current funding system created in 1993 to comply with a decision of the state’s supreme court. The current system redistributes property tax revenues from wealthy to poor areas.

The bill falls far short of the trial court judge’s estimate that the state needs to spend an additional $5 billion annually to meet its constitutional obligations, said John Cole, the president of the Texas Federation of Teachers, which supports the plaintiffs in the current litigation.

Moreover, he said, the Texas comptroller estimates that an accompanying tax bill would not raise enough revenue to deliver the promised increases for schools.

“The $1.5 billion [a year] would be inadequate even if it were all there,” said Mr. Cole, whose 50,000-member group is an affiliate of the American Federation of Teachers.

The Senate is scheduled to begin consideration of its school finance and tax bills at the end of this month. Lt. Gov. David Dewhurst, the Republican president of the Senate, said the measures would include a $6.7 billion increase for schools over the next two years.

Both the House plan and Mr. Dewhurst’s own tax proposal would reduce property taxes by one-third, from $1.50 per $100 of assessed value to $1 per $100 of assessed value.

The House bill would replace that revenue through payroll, sales, and tobacco taxes. The Senate hasn’t detailed how it would raise the money.

Proponents of increased funding contend that the problem in Texas—and in other states—is lawmakers’ reluctance to raise taxes to produce the revenue needed to satisfy court orders.

In Kansas, several influential lawmakers had said they would consider tax increases after the state supreme court ruled in January. But they have changed their stance after being targeted by anti-tax groups, Mr. Rupe said.

In Montana, Gov. Brian Schweitzer, a Democrat, has pledged not to raise taxes, making it hard to find money to aid schools.

“They are trying to use existing revenue to satisfy the court’s order, and existing revenue is inadequate,” Mr. Copps argued.

Constitutional Showdowns

Others say the issues are larger than the politics of taxes, and point out that the courts’ orders are raising constitutional questions about the limits of judicial authority.

In New York, the state is planning to appeal the trial judge’s order to provide $5.6 billion in operating increases over four years to fix the New York City schools.

The state’s appeal would automatically delay the effect of the judge’s decision while higher courts considered the case. But plaintiffs say they will argue that the judge should enforce his decision while an appeal is pending.

In previous cases against state and local governments, judges acted in the plaintiffs’ favor and waived the automatic stays if state officials hadn’t tried to comply with the judges’ orders.

“Essentially, the state is bringing this appeal to stall this thing for a year,” said Michael A. Rebell, the executive director of the Campaign for Fiscal Equity, the group that brought the New York lawsuit. “When those have been the facts, the court has lifted the stay.”

But New York Sen. Saland said the biggest legal question is the court’s power to enforce its will.

“Whether the court has the authority to require us to appropriate money is a major constitutional question,” he said. “The answer will be keenly anticipated by many. The prevailing view is that the court lacks the ability to do that.”

Such constitutional questions may also be forthcoming in Kansas, said Mr. Rupe, the plaintiffs’ lawyer there. He often reminds people that one of the districts he represents is in Dodge City, the late 19th-century trading center famous for its gunfights.

“I think we’re headed toward a showdown between the court and the legislature,” he said.

Vol. 24, Issue 30, Pages 1,22

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