Justice: Will Kansas Schools Litigation Ever End?

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TOPEKA, Kan. (AP) _ A Kansas Supreme Court justice is asking whether legal battles over school funding will ever end if the high court sides with school districts that have sued the state to force higher spending.

Justice Eric Rosen said during a hearing Tuesday that he worries about what he called "constant litigation."

The court heard arguments on the state's appeal of a lower-court ruling that the state must boost its annual spending on public schools by at least $440 million a year.

Rosen also said lawmakers had broken promises in not following through on increased funding they initially approved as part of closing a 2005 case.

Stephen McAllister, the state's solicitor general, disagreed with that assessment. He said the reductions in school funding crossed from Democrat Kathleen Sebelius' administration into Republican Sam Brownback's term. He said the cuts were not political maneuvers, but the economic reality of a faltering economy.

McAllister said it is unreasonable to expect school funding to continue to go up, regardless of the economy and the impact on all other areas of government.

But the attorney for four school districts that sued over funding levels doesn't buy that. Alan Rupe blasted the legislature for cutting $511 million in school funding, then enacting a $2.5 billion tax cut, while saying there are not resources to increase funding to schools.

Rupe argued lack of funding is shown in lack of student achievement. He says lower test scores for poor and minority students show lawmakers aren't meeting their constitutional obligation to provide a suitable education.

Justice Marla Luckert questioned what achievement level would be viewed as suitable, asking whether one child not passing means the system needs more funding. Rupe responded that he doesn't believe officials can draw a line on achievement levels, but says educators testified that current performance doesn't meet the level.

With that argument, Luckert asked, how can justices rule an amount at which schools should be funded. Rupe said being able to set a level is implied by the Kansas constitution. He said if courts are not allowed to enforce a level, then lawmakers would be able to reduce funding to zero.

Rupe's response referred to an argument the state's attorneys made earlier in the session, when justices asked if the legislature would be within its rights to set school funding at zero dollars. If the legislature could argue it was reasonable, the state said, it would be within their rights.

The justices also asked the state's attorneys about student achievement levels and how they might show Kansas schools were providing an adequate education. Arthur Chalmers, who represented the state with McAllister, said test scores are merely a snapshot of how a student performs at a given point in time and not necessarily a true measure of how a school is performing. Rather than test scores, he said, the justices must look at whether schools are giving students the opportunity to get an education.

Regardless of those measures, the state argues,the question of how much money is not up to the Courts to answer. McAllister said the Court can determine constitutionality, but they cannot order a new law. The case, he said, was about the constitution and not whether Kansas elected officials care about the education of students.

Tuesday's arguments lasted more than three hours. The justices are not expected to issue a decision until January.

The full arguments will be available for viewing on the Judicial Branch web site next week.