Closing the School Doors in the Pursuit of Equal Education Opportunity: a Comment Onmontoy v. State, 2003 Wl 22902963 (kan. Dist. Ct. 2003)

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 901. Closing the School Doors in the Pursuit of Equal Education Opportunity: A Comment onMontoy v. State, 2003 WL 22902963 (Kan. Dist. Ct. 2003)

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Anna Williams Shavers*

Closing the School Doors in the Pursuit of Equal Education Opportunity: A Comment on Montoy v. State, 2003 WL 22902963 (Kan. Dist. Ct. 2003)(fn1)

TABLE OF CONTENTS

I. Introduction ..................................................... 901
II. The Kansas School Finance Litigation and Rural
Schools ......................................................... 902
III. Remedial Orders in School Finance Cases ........................ 907
IV. School Closings and Equal Education Opportunity ................. 912
V. Conclusion ....................................................... 914

I. INTRODUCTION

In Brown v. Board of Education of Topeka,(fn2) the U.S. Supreme Court decided its most significant case on equal education opportunity. In the year of Brown's fiftieth anniversary, Topeka, Kansas again provides the site for what may become widely-cited as a revolutionary decision on equal education opportunity. In December 2003, Shawnee County, Kansas District Court Judge Terry Bullock held that the Kansas system of funding schools provided unequal educational funding and was unconstitutional. His ruling in Montoy v. State was in response to a lawsuit filed in 1999, claiming that the State's funding formula is unconstitutional, because it is "inadequate

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and inequitable."(fn3) Judge Bullock withheld issuing a final order and gave the Kansas legislature and governor until July 1, 2004 to remedy the system. The legislature considered numerous proposals, but failed to reach an agreement and adjourned on May 8, 2004, without changing the existing formula or allocating additional resources. On May 11, Judge Bullock issued his Decision and Order in the case, freezing all payments from the State to school districts, effective June 30, 2004. The order required that public schools be closed on June 30 and kept closed until the legislature took corrective action to eliminate the "inequitable and inadequate" educational system in the state:

This action by the court will terminate all spending functions under the unconstitutional funding provisions, effectively putting our school system on "pause" until the unconstitutional funding defects are remedied by the legislative and executive branches of our government. Although this action may delay our children's education slightly (should the other branches fail to respond quickly), it will end the inadequate and inequitable education being provided now and the disparate damage presently being done to the most vulnerable of our children.(fn4)

II.THE KANSAS SCHOOL FINANCE LITIGATION AND RURAL SCHOOLS

The Kansas Supreme Court issued a stay of Judge Bullock's order on May 19, 2004 and heard oral arguments in the case on August 30, 2004.(fn5) In my Article in the 2003 Symposium issue of the Nebraska Law Review on rural school finance litigation, I concluded that equitable claims were still viable for rural school finance litigation, but noted that even in successful cases, the attempts to find appropriate remedies presented problems and required that the appropriate remedy be carefully considered as a part of litigation strategy.(fn6) In that same issue, Malhoit and Black discuss the approaches that courts have taken

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to remedying inadequacy and inequity in school finance.(fn7) Judge Bullock's order provides an opportunity to revisit this issue.

Since nearly half the schools in Kansas are rural, and the state ranks seventh in the percentage of its students who attend smaller rural schools,(fn8) the litigation and resulting orders may have significant implications for rural school districts in Kansas and other states.

Like many states, the school finance litigation in Kansas dates back to the 1970s.(fn9) In 1972, the trial court in Caldwell v. State(fn10) found the Kansas public education-funding system unconstitutional on equal protection grounds, because the State had not provided enough aid to offset disparities among school districts in taxing efforts and per-pupil expenditures. In response, the Kansas Legislature enacted the 1973 School District Equalization Act ("SDEA"), which established a foundation level of school funding per pupil, in which the State would make up the difference between local revenues and this target amount. Subsequently, in 1990, plaintiffs, including forty-two school districts, in the consolidated lawsuit Mock v. State,(fn11) challenged the constitutionality of the SDEA and the state school finance formula, alleging that the school districts receive less than a proportionate share of the funding for elementary and secondary education. The Mockplaintiffs claimed that the system, which relied upon local mill levies, was unconstitutional. In advance of trial, Judge Bullock issued a pretrial opinion on certain questions of law raised by the lawsuits, finding the State's school finance formula unconstitutional.(fn12) He held that under the Education Article of the Kansas Constitu

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tion,(fn13) "the duty owed by the Legislature to each child to furnish him or her with an educational opportunity is equal to that owed every other child."(fn14) Judge Bullock agreed to delay the trial in order to give the governor and the legislature the chance to consider taking corrective action consistent with the principles that he had identified. A gubernatorial task force was created, which devised a new school finance system that was submitted to the legislature, leading to the School District Finance and Quality Performance Act ("SDFQPA"), which was adopted in 1992.(fn15) The SDFQPA created a statewide property tax and a statewide system for collecting and distributing taxes for all districts. Rural and small schools initially benefited from the redistribution of taxes.(fn16) The system also set, among other things, a minimum level of state aid per pupil and an accountability system based upon minimum state standards in specified courses.

Following passage of the new act, Judge Bullock dismissed some of the consolidated cases and transferred jurisdiction of the remaining cases to Judge Marla Luckert. After a trial of the cases in the summer of 1993, Judge Luckert issued her 168-page opinion in December 1993, finding the 1992 law unconstitutional. Judge Luckert stayed the effective date of the finding until July 1, 1994. On appeal, the Kansas Supreme Court upheld the constitutionality of the 1992 Act in Unified School District No. 229 v. State.(fn17) In response to the district court's finding that the Act violated section 6(b) of Article 6 of the Kansas Constitution, in that it does not contain "suitable provision for finance of the educational interests of the state," the Kansas Supreme Court decided that the constitutional provision placed the responsibility for determining what was "suitable" with the legislature.(fn18)

Montoy v. State was filed by two school districts and thirty-one students from those districts. The students represented various protected classes, including African-American, Hispanic, Asian-American, students with disabilities, and those of non-United States

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origin. Named as defendants were the State of Kansas, the Governor of Kansas, the state treasurer, each member of the State Board of Education, and the Commissioner of the Kansas Department of Education. The plaintiffs alleged three separate violations of the Kansas Constitution: (1) a failure of the Legislature to make "suitable provision for finance of the educational interests of the state" as required by KAN. CONST. art. 6, § 6(b); (2) violations of state equal protection; and (3) state substantive due process violations. All of the violations were based upon a challenge of the total amount of funds provided to their school districts.(fn19) Specifically, the plaintiffs challenged the low-enrollment weight, the local option budget, special education excess costs, and capital outlay factors utilized in the school-funding formula.(fn20) They also claimed that, under the formula, too much money goes to rural school districts. Judge Bullock sua sponte granted judgment for the defendants, on procedural and substantive grounds, primarily basing his decision on the supreme court's 1994 decision in Unified School District No. 229that upheld the state education finance system. However, in January 2003, the Kansas Supreme Court reversed Judge Bullock's dismissal and ordered the case back to the trial court for further proceedings. The court instructed Judge Bullock (1) that Unified School District No. 229(fn21) required a more vigorous analysis than Judge Bullock had presumed and (2) that, while the legislature had the responsibility to promulgate education standards, the "ultimate question on suitability" remained with the court.(fn22)

After an eight-day bench trial, on December 2, 2003, Judge Bullock issued a preliminary order in the case, finding that the school finance formula was unconstitutional, and setting a deadline of July 1, 2004, to allow a full legislative session for "our Legislature and our state's chief executive [to] step up to the challenge to bring the...