*1 92,032 Ryan Montoy, al., et v. State of Appellees/Cross-appellants, al.,
Kansas, et Appellants/Cross-appellees.
(120 306) P.3d filed Opinion 3, 2005. January Tideman, L.C., Park, Curtis L. of & of Overland Lathrop Gage argued cause, firm, and Kenneth L. Weltz and of Alok the same and David W. Ahuja, Davies, Kline, assistant and Phill attorney were with him general, attorney general, on the briefs for State of Kansas. appellant/cross-appellee Biles, Gates, Biles, P.A., Park, Dan of & Shields of Overland Ryan, argued cause, Bieker, Education, of Kansas of Rodney Department Cheryl J. Whelan, Lawrence, of Lynne were with him on the briefs for appellants/cross- Gamble, Bacon, Morris, Sue appellees Bill Waugh, Connie Wagnon, Janet John Willard, Meter, Abrams, Bruce Kenneth Carol Iris Wyatt, Van Steve Rupe, Andy Tompkins. LLP, Wichita, cause, Alan L. of Kutak Rock of Rupe, and Richard argued Olmstead, firm, Robb,
A. Robb, of the same S. of Somers Robb & of John Newton, were with him on the briefs for appellees/cross-appellants. Hesse, Wm. Scott assistant was on the brief for defendants/ attorney general, Governor Kathleen Sebelius and State cross-appellees Treasurer Lynn Jenkins. Williams, Gee, L. Selzer & Seigfreid, Bingham, Kansas Levy, City, Jane Missouri, was on the brief for amicus curiae Kansas Families for United Public Education. Baker, Boards, Patricia E. of Kansas Association School was on Topeka, for brief amicus curiae Kansas Association of School Boards. David M. Schauner and Robert of Kansas National Blaufuss, Education Asso- ciation, of were on the brief amicus curiae Topeka, Kansas National Education Association. Zima, Schools, W. Public Joseph was on the brief amicus curiae Topeka Unified School District No. Shawnee Kansas. County, Norris, Hillman, Hillman, & Melissa D. Keplinger G. Norris and Michael L.L.C., Park, Unified Dis- curiae School on brief for amici were of Overland *2 Kansas. County, tricts Nos. Johnson Palmer, L.L.P., Goodell, Stratton, of & Edmonds Topeka, of Anne M. Kindling, Shawnee School District amicus curiae Unified on the brief for was Mission, Kansas. LLC, for of was on the brief of Giefer Law defer, WaKeeney, Bernard T. Kansas (WaKeeney), District No. County, amici Unified School Trego curiae districts). (60 et other Kansas school al. L.L.C., Theis, Firm Elkouri Law R. M. of Hinkle Thomas Powell and Roger District No. Wichita, Unified School on brief amicus curiae were the Kansas. County, Sedgwick Atlanta, Coalition, was the Mathis, on Georgia, of Rainbow/PUSH L. Janice Rainbow/PUSH Coalition.
brief for amicus curiae brief for was on the of Weathers & Riley, Topeka, Cynthia Sheppeard, J. Action for Children. amicus curiae Kansas Lawrence, Corkins, Tax- on the brief for amicus curiae Kansas Bob L. Network. payers Services, onwas & Protective Kirk W. of Kansas Advocacy Topeka, Lowry, Protective Services. curiae Kansas &
the brief amicus Advocacy Curiam,-. case, the State of Kansas Ver in this The defendants Gamble, Sue Waugh, along (appellant/cross-appellee) Janet Morris, Kenneth Bacon, Bruce Bill Connie Wyatt, Wagnon, John Meter, Willard, Van Steve Abrams Iris Carol Andy Rupe, defendants) (the related Board of Education State (ap- Tompkins district court a decision of the from appeal pellants/cross-appellees) Per- Finance and Kansas School District that the Quality holding et is unconstitu- seq., Act K.S.A. 72-6405 (SDFQPA), formance tional. case, (Salina) and U.S.D. in this U.S.D. No. 305
The plaintiffs students with 36 named No. 443 individually City), along (Dodge districts, determi- from the district court’s in those cross-appeal ob- constitutional did not nation that the abrogate Board of Education. State ligations scheme for The statutory funding constitutionality Because this is at issue in this schools Kansas appeal. effect and of this issue will have statewide court’s resolution require session, action in the 2005 we announce our legislative legislative decision this brief A formal will be filed at a opinion. opinion later date.
After record full and consid- examining giving complete eration to the raised in this we resolve issue arguments appeal, as follows:
1. We reverse the district court’s that fi- SDFQPA’s holding formula is a violation of nancing equal protection. Although district court determined that the rational basis test was correctly level of it that test. We conclude proper scrutiny, misapplied that all of the differentials as the SDFQPA provided by Thus, are related to a rationally legitimate legislative purpose. does SDFQPA not violate the Protection Clause of the Kan- Equal sas or United States Constitutions.
2. We also reverse the district court’s *3 holding SDFQPA formula has an unconstitutional im- financing disparate on minorities and/or other classes. In order to establish an pact basis, on violation this one must show not equal protection only that there is a also but that the can be disparate impact, impact traced to a Personnel Administrator discriminatory purpose. Mass. v. 442 U.S. L. 60 Ed. 2d 99 S. Ct. Feeney, (1979). 2282 No was shown the discriminatory purpose by plain- Thus, tiffs. the is not unconstitutional SDFQPA based on its solely “disparate impact.”
3. affirm We the district court’s that the has holding failed to meet its burden as Art. the Kansas imposed by § Constitution to “make suitable for finance” of the provision public schools.
The district court reached this conclusion
an
after
bench
8-day
trial which
1,400
resulted in a record of
approximately
pages
9,600
and
of exhibits. Most of the witnesses were
transcript
pages
in the fields of
education. The trial
experts
primary
secondary
State,
followed this court’s
decision in
v.
275 Kan.
Montoy
152-53,
(2003)
I),
held,
originally adopted I, Later, at 254-59. Kan. See 256 education. Montoy public but the issue of we noted that requires suitability stagnant at 153. 275 Kan. constant monitoring. trial, made the district court findings regarding
Following after which occurred and societal the various changes statutory affected school decision in U.S.D. funding. Regarding (1) 36% of Kansas court found: the district societal changes, lunches; (2) or now for free school students reduced-price qualify has limited the number of students English proficiency has increased (3) number of increased immigrants dramatically; now use (4) state institutions learning higher dramatically; standards. more admission rigorous a number of court found the district statutory Additionally, No. 229 which affected after the decision U.S.D. made changes (1) out funds: set formula delivers goals way removed; (2) 72-6439(a) SDFQPA’s in K.S.A. were fair and an committee to ensure equitable requiring oversight (3) low enrollment was allowed to weighting expire; added; (5) (4) at-risk was was correlation pupil weighting changed; (6) from 35 the mill was decreased was levy changed; weighting mills; $20,000 (7) for residential to 20 mills property exemption revenue; (8) a new to the mill also was added levy, decreasing added; (9) education funds were facilities was weighting special die local to increase the base on which added the calculation (10) calculated; was was ancillary weighting budget funding option removed; added; (11) on outlay authority capital cap funds were limited to reimbursement most special *4 for 85 of the costs incurred hiring special percent teachers and paraprofessionals. to determine whether standard of review us
Our
requires
sub-
of fact which are
district court made
findings
supported
the con-
and are sufficient to
stantial
evidence
support
competent
Processors,
USA, Inc. v. Central
clusions
law. McCain Foods
(2002).
Inc.,
We conclude that
275 Kan.
Through provisions, legislature imposed it whether has made suitable determining finance of education: Do the schools meet the accreditation and are students an requirements achieving “improvement per- formance that reflects academic standards and measura- high 72-6439(a). ble”? K.S.A.
These student accreditation measures were utilized performance in 2001 when directed that evaluation professional *5 suitable education the costs of a determine to
be performed the children. In Kansas school legislature study, authorizing 46-1225(e). The education.” K.S.A. defined “suitable Supp. (LEPC), to whom Committee Education Planning Legislative determined which task of per- study delegated, overseeing if Kansas’ utilized measures would be formance determining The evalua- a suitable education. were school children receiving the criteria es- tion, & utilized by Augenblick Myers, performed LEPC, and, whether the current examined tablished by part, for schools levels were formula adequate funding financing criteria. The standards and meet accreditation study performance levels were inade- that the formula and concluded both funding had defined as suitable what the legislature quate provide education. I, 153-55, Kan. we concluded at
Although Montoy a suitable not define accreditation standards may alwaysadequately education, in this case of the extensive record our examination no further than the to conclude that we need look leads us legis- to determine that the own definition suitable education lature’s current formula. standard is not met under the being financing evidence, in- is that record there substantial Within competent that a suitable & study, establishing cluding Augenblick Myers education, is as that term defined by legislature, being (Salina districts school provided. particular, plaintiff that the fails to ade- SDFQPA established provide Dodge City) for students their and for a suitable education quate funding districts, i.e., middle-and dis- other situated large-sized similarly at-risk and with a and/or tricts minority special high proportion Additional evidence of the education students. inadequacy that, in the fact while the intent of is found original within the formula was for local budgets provision option districts have been forced to fund “extra” some school expenses, to finance education. use local budgets general option Furthermore, in if the has made suitable determining education, there are other fac- for the finance of are in addition to whether students tors be considered provided the district court found that a suitable education. Specifically, *6 formula not was based actual costs to educate chil- upon financing dren but instead based on former levels and spending political This failure to do cost distorted the low any compromise. analysis enrollment, education, vocational, education, and special bilingual the at-risk student factors. weighting
Thus, there is substantial evidence to the competent support district court’s discussed above. These are suffi- findings findings cient to the the conclusion that has failed to support legislature “make suitable for finance” of the school public system as Art. 6 of the Kansas Constitution. by § required 4. As to the we affirm the district court’s cross-appeal, holding that the has not the of the State Board legislature usurped powers of Education. the as the district court addressing appropriate remedy,
noted, there are hundreds of the formula “literally ways” financing can be altered to with Art. 6. there are comply Similarly, § many to re-create or reestablish a suitable formula. We ways financing do not dictate the in which the fulfill must precise way legislature decide, its constitutional That is for the to consis- duty. legislators tent with the Kansas Constitution. however,
It is clear increased will be increased funding required; not in and of itself make the con- formula may funding financing suitable. The which the funds are distrib- stitutionally equity education, uted actual costs of levels including appropriate costs, of administrative are critical factors for the to con- legislature sider in a suitable formula education. achieving financing By contrast, the formula increases present financing disparities based on cost but rather on funding, analysis, political other factors not relevant to education. (1)
We are aware that our decision raises con- about questions formula corrective action tinuing present financing pending by (2) could have the legislature; potential disrupt public schools; to act requires legislature expeditiously pro- vide suitable for the school constitutionally financing system. at this time we do this case not remand to the district Accordingly, court or consider a final but we will instead retain remedy, juris- diction all further to allow the stay proceedings legislature in the time to correct constitutional
reasonable infirmity pres- meantime, In the for- formula. ent present financing this will in effect until further order of remain mula and court.
We in this brief endeavored have identify problem opinion in the as well formula areas legislative changes present de- to the that have contributed immediate present funding past take We have done so order that ficiencies. steps Its fail- to fulfill its constitutional it deems responsibility. necessary this court ure to act in the face of this would opinion require taken out that We believe direct action to be to carry responsibility. in the interests action at this time would not be best further court of this state. of the school children session, lack in the The its action or thereof legislature, *7 if To will what form final will take. dictate our remedy, necessary, we with our will withhold ensure the holding, legislature complies has or until corrective been enacted our formal legislation opinion first, the of our whichever occurs issuance stay April mandate in this case. in
Affirmed in reversed part part. in I concur in the court’s result and concurring: fully J., Beier, the bulk of its rationale. I write because I separately only disagree 260-63, with the of U.S.D. 229 v. 256 Kan. No. holding (1994), 885 education not a P.2d 1170 fundamental right not, I under Kansas Constitution. I believe it is. Thus as would case, did in the court on its this way opinion rely implicitly on U.S.D. No. 229 to that the Kansas conclude school financing formula under did not violate the Protection SDFQAA Equal Rather, Clauses federal take and state Constitutions. I would this case to overrule U.S.D. opportunity presented by on the the Kan- status of to education under holding right sas Constitution. L.
In San Antonio School District
U.S.
Rodriguez,
(1973),
Ed. 2d
93 S. Ct.
reh.
776A mental under the United States Constitution. this right reaching conclusion, the Court stated: whether education is ‘fundamental’ is be “[T]he not to found key discovering of the relative societal of education as comparisons significance opposed or subsistence Nor is it to be found whether education is as housing. by weighing Rather, to travel. the answer lies whether there important assessing is a to education or Constitution.” explicitly implicitly guaranteed by U.S. at 33-34.
Article 1 of our state constitution reads: “The legislature § intellectual, educational, shall vocational and scientific provide schools, ed- improvement by establishing maintaining public added.) ucational institutions and related activities.” Ar- (Emphasis ticle “The shall make suitable provides: § for finance of the educational interests of the state.” (Emphasis added.)
If we were to the United States Court’s apply Supreme straight- forward from we would need look analysis pattern Rodriguez, no further than the of these two constitutional mandatory language education, Because provisions. they explicitlyprovide is a fundamental right. true, however, states,
It is that our sister when faced certainly with the of whether own their constitutions make edu question cation a fundamental have not been satisfied right, always For v. Colorado Bd. State Rodriguez approach. example, Lujan 1005, 1017 (Colo. 1982), 649 P.2d the Colorado of Educ., Supreme Court stated:
“While the test be fundamental may [Rodriguez] applicable determining rights Constitution, under the United States has no it fun- applicability determining damental under the Colorado Constitution. is so This because of basic rights and different natures of the two constitutions .... omit- inherently [Footnote ted.] “The of United States Constitution is one restricted authority delegated Amendment, As in the Tenth all to the
powers. provided powers granted Constitution, it, United States nor denied the States are reserved to by by to the States or [Citations omitted.] People. the Colorado is not one limited where Constitution of “Conversely, powers state’s is restricted to the four comers of the omit- document. authority [Citation The Colorado Constitution does not restrict itself those ted.] only addressing Rather, areas deemed fundamental. it which . . contains are . suited provisions
776B . . . as those fundamental to our as well deemed concept enactment statutory Constitution, Thus, .... the Colorado ordered under of liberty whether are are determined by they guaranteed explicitly not necessarily rights within document.” or implicitly the test for have
Several
states also
other
rejected Rodriguez
on education demand
whether
their state constitutional provisions
(Serrano
v.
See Serrano
Priest
of a fundamental
recognition
345, 557
(1976)
II),
766-67, 135 Cal.
P.2d 929
18 Cal. 3d
Rptr.
are
whether
interests
to be constrained by
rights
(refusing
de
cert.
constitution),
state
or
by
guaranteed
explicitly
implicitly
Thomas,
632, 646,
v.
McDaniel
(1977);
248
nied
432
907
Ga.
U.S.
(1981)
lacks
156
or
model
285 S.E.2d
implicit” guarantee
(“explicit
v. En
constitution);
limitation under state
Thompson
meaningful
793, 803-05,
(1975)
cat
776C
time,
At this
Alabama,
courts in 15
California,
point
states —
Connecticut,
Minnesota, New
New
Kentucky,
Hampshire,
Jersey,
Carolina,
Dakota, Vermont,
North
North
Virginia, Washington,
Wisconsin,
West
to have
Virginia,
Wyoming appear
recog
—
nized a fundamental
constitutions,
education under their
right
various
employing
patterns
Opinion
analysis.
Justices,
(Ala.
624 So.
1993)
2d
157
(“[T]he
(advisory opinion)
right
education in Alabama is fundamental” and implicitly guaranteed
constitution);
the state
I),
Serrano v. Priest
(Serrano
5
Cal. 3d
584, 608-09,
96 Cal.
(1971)
487
(“[T]he
P.2d 1241
dis
Rptr.
tinctive and
function
warrants,
of education in our
priceless
society
indeed
our
it as a
‘fundamental interest.’ Hor
”);
compels,
treating
ton v.
I),
Meskill (Horton
615, 646,
172 Conn.
parties agree
v.
Constitution.”);
166 Vt.
Brigham
the North Dakota
under
of edu
(1997)
262,
A.2d 384
692
importance
(emphasizing
dis
to ensure'
and state’s
cation to
proper
duty
self-government
Commonwealth,
379, 386,
v.
443 S.E.2d
Scott
247 Va.
persion);
and unam
clear
constitution’s
(1994)
state
language
(finding
for fullest
assure
state should
development
opportunity
biguous;
State, Wash. 2d
v.
School Dist.
Seattle
education);
through
use
(1978) (“The
constitution’s]
585 P.2d
[state
singular
its
taken
when
term
Eng
plain
together
duty,’
paramount
of the constitutional
is
clear indication
lish
importance
[a]
meaning,
children.”);
Pauley
the State’s
education of
to the
attached
(1979)
ed
v.
776E
economic and social success as well as a
influence on a
unique
child’s
aas
citizen and on his future
development
good
participa-
tion
life.’
Neverthe-
[Citation
political
omitted.]
community
less, we conclude that education is not a fundamental
McDaniel,
The exact nature of
to education under the Oklahoma
any right
*11
Coun.,
Constitution is
unclear. See Fair Sch. Finance
currently
(Okla. 1987) (Even
P.2d at 1149-50
that education is
“[assuming
interest,
a fundamental
remains as to what is the exact
question
nature of the interest
..
. We find no
to
guaranteed.
authority
contention that the school finance
support
plaintiffs’
system
should be
to strict
The status of
subjected
judicial scrutiny.”).
any
in Arizona also is unclear at this time. See
v.
right
Hollings,
Shofstall
88, 90,
(1973) (“We
110 Ariz.
Those courts that
a fundamental
to education
recognize
right
under their state constitutions also
on the extent to which
vary
they
status to
review of
permit
right’s
strengthen judicial
specific
enactments. Some
strict
when
review
legislative
apply
scrutiny
they
See,
I,
(state
statutes on school
Serrano
tiny).
a denial of the fundamental
that constitute
schemes
right
statutory
of review
education;
standard
a more
forgiving
they employ
exercise
mechanisms
focus is on
when their
legislative
fund
Skeen,
(strict
at 315-16
505 N.W.2d
scrutiny applies
right.
otherwise,
level;
falls below
when offered education
“adequacy”
School
Bismarck Public
standard);
rational basis
Minnesota applies
(North
intermediate
Dakota
Dist.
at 257
511 N.W.2d
applies
Kukor,
(Wisconsin
rational
at 498
148 Wis. 2d
applies
scrutiny);
Meskill,
II), 195 Conn.
(Horton
see also Horton
standard);
basis
(Connecticut
24, 35-38,
A.2d 1099
three-part
adopts
“in
as-
educational
for school
significant
funding;
analysis
Dist.,
(al-
School
In Bismarck Public that a fundamental to education Court held Dakota Supreme declined, however, The court constitution. existed under the state strict for decisions involving scrutiny adopt Instead, intermediate scru- the court educational adopted system. fi- needed in between in order to strike balance flexibility tiny at 511 N.W.2d and the nance decisions importance 257-59. (Minn. 1993), the Min-
In Skeen v. 505 N.W.2d to education Court found that nesota Supreme to the state and of education’s overall existed because importance *12 to in the state constitution an mandating duty explicit provision of education.” The court and uniform “establish system’ ‘general should concluded that strict only challenges scrutiny apply that in the school but system, uniformity funding adequacy the ra- should be reviewed under mechanisms particular funding that at 315-16. The court noted standard. 505 N.W.2d tional basis in the section the word “shall” the state constitution used only while the “duty legislature” language financing, describing establishment of schools. used in the section was addressing Further, stated: “Because the state at 315 n.9. the court N.W.2d under not strict economic constitution does equality require
776G
clause, it cannot be said that there is a ‘funda-
equal protection
mental
scheme . . .
right’
any particular
N.W.2d at 315.
Grover,
Kukor v.
In
148 Wis. 2d
(1989), the Wisconsin Court concluded that Supreme ‘equal op- for education’ ais fundamental but concluded that portunity right” absolute was not The court noted equality required. that the at issue exceeded the equalization system actually degree under the state constitution. 148 Wis. 2d at uniformity required 496. that the rational basis test rather than strict Holding scrutiny to issues based on the court reasoned applied spending disparities, that did not involve the denial anof educa- spending disparities tional within the of the state constitution. 148 opportunity scope Wis. 2d at 496-98. (now When District Luckert wrote her Judge Justice) opinion
U.S.D. et al. v. (Shawnee No. 90 CV 2406 County Court, District filed 16,1993) (For Dec. reference, ease of this slip will be referred to hereinafter as “U.S.D. No. opinion slip she looked at all of the school finance from op.”), other opinions to that and concluded that those jurisdictions a ra- point applying tional basis standard of review to school finance equity challenges were the U.S.D. No. most at 89-92. Those persuasive. slip op. who sat on this court at the time the justices arose that appeal case Luckert’s as well as all of her adopted position, nearly Justice exhaustive and discussion. U.S.D. No. 256 Kan. at eloquent 239-51, 261-63. view,
In on the my precedential landscape appropriateness of a rational basis standard of review for school finance legislation, denial of education, to an has opposed outright little since U.S.D. No. 229 decided, and I that changed agree the cases on which Luckert and the Court relied Supreme Justice remain on the wisdom of that standard to stat- persuasive applying utes However, education finance in Kansas. I am providing comfortable backward from that conclusion to there reasoning say is no to education under our Kansas Constitu- fact, tion. on close it is evident Luckert was reading, Justice also reluctant to make this backward See U.S.D. No. leap logic. *13 776H (“Further, there be a fundamental at 94 while may slip op. education, of an to the constitutional guarantee
right standard should be met this and the lesser rational basis ap- right It was to the examination of financing.”). equality plied 229 No. U.S.D. until the Kansas Court’s not opinion Supreme use of a rational basis standard for review that Luckert’s Justice Kan- finance to a conclusion that the school equated legislation See no fundamental to education. sas Constitution recognizes right No. U.S.D. (“Here, 256 Kan. at the district court exhaus- that decisions from other analyzed jurisdictions concluding tively education was not a fundamental requiring right application test in strict scrutiny analyzing legislation involving education.”). above, if we were as As stated regard Rodriguez controlling of a on the method the existence fundamental for determining right education, to an our Kansas Constitution’s explicit pro- matter a visions would settle the in favor of that such holding correct, however, are exists. and like cases Lujan probably ques- this of state con- tion the for utility approach interpretation 649 P.2d 1017. Like the Con- stitutions. at Colorado Lujan, under consideration in the Kansas Constitution stitution Lujan, several enactment” contains “suited provisions statutory explicit that do rise to for individuals. fundamental rights plainly give See, Kan. Art. cor- Const. e.g., (provisions regarding § § stockholder liability). porations, factors that considered As Luckert be recognized, may Justice a
in addition to the state’s education clause include language whole, clause to the constitution that state relationship state’s constitutional any particular history, perception See U.S.D. framers intended education be No. Alabama Coalition at 85-92 Equity slip op. (citing Hunt, Cir. filed CV-90-883-R [Ala. unpublished April opinion Conn, I, Horton 204083]; at 653-54 Westlaw [1993 1993] One, Sch. Washakie Co. Dist. No. [Bogdanski, concurring]; J. 333). .Kansas, P.2d at all of these factors the existence support of a fundamental to education.
First, the of the article education The language mandatory. intellectual, educational, “shall for vocational legislature provide scientific it “shall make suitable improvement” provision the for finance of educational of the Kan. interests state.” Const. 6, 1, 6. Art. Neither the educational progressive § § nor the of it is improvement optional.
Second, the education article’s to the constitution relationship as a whole its to the document’s overall de- centrality emphasizes five articles it. of the Each first three outlines sign. Only precede 1, of the one three branches of See Kan. Const. Arts. government. 2, 3. The fourth and the fifth deal with elections and suffrage, the without which three branches could not be See Kan. populated. 4, education; 5. Next Const. Arts. comes once the branches are filled, established and their seats it is the education first appears on the of the new state. See Kan. Const. Art. 6. The thing agenda education article comes before those institu- dealing public welfare, militia, tions and county organization, township taxation, of the and finance and apportionment legislature, among 7, 8, 9, 10, others. See Kan. Const. Arts. 11. Our constitution not education; for it only explicitly provides implicitly places first critical tasks of state among many government.
Third, our state’s constitutional reinforces history impor- tance of education even before statehood. As noted both by Justice Luckertin her U.S.D. No. and District opinion by Judge Terry Bullock in his earlier decision Mock No. CV 918 (Shawnee Court, 14, 1991), Oct. District filed County public schools were of life on the significant components prairie would become Kansas. In Luckert’s words: Justice for Act the Act the Admission of Kansas Into the “[T]he Union Organic included that certain of land sections be reserved for edu- provisions providing (The Act, cational and Act to of Kansas purposes. Organic Organize Territory (10 30,1854)). Stat. A Territorial chapter May Superintendent § § fo Common Schools certified teachers and local school districts within organized students’ distance of homes. walking “When the Ordinance to the Constitution contained sec- passed eight tions, three of which dealt with education. The framers of the elementary public an article to the of a constitution devoted entire establishment and finance system of ‘common schools.’ Section 6 of Ordinance for statewide financing provided 776J from five of all the sale of lands public of schools by percent proceeds earmarking the exclusive use of the schools.
for public state- 6 of Kansas Constitution by [A]rticle “The adopted original ratified tire electors the State Kansas on convention hood July by 4,1859, into United law tire admission State October and became upon 3 of the edu- [A]rticle States in Section provided public 186[1]. estates, lands,- lands, ‘and rents on such Sale of unclaimed cation. public public otherwise, tax or shall be means as may by enviably other provide, legislature to the of common schools.’ support appropriated “Hence, taxes from its Kansas has financed schools through inception, . tire . . .” U.S.D. and other mechanisms provided at 5-6. slip op. C., School and Tenden- The Kansas System History King, —Its *15 cies, 1909-1910, Kansas Historical Collections of the State Society 424-25. pp. of our constitution’s Article 6
The relevant original language stated: intellectual, moral, 2. “The shall the sci- encourage promotion legislature “§ and uniform common by entific establishing system agricultural improvement, normal,
schools, and schools of a collegiate higher grade, embracing preparatory, added.) 6, (1859). Kan. Art. and Const. university departments.” (Emphasis § in Article 6 This remained until when was language place its “the in- amended to current form. The amendment reaffirmed members, herent its the through power legislature—-and and course of education shape public pro- people general —to vide for its U.S.D. No. at 8 Kansas slip op. financing.” (quoting Council, the Education Amend- Implementation Legislative Committee, of the Education vii [Nov. Advisory Report p. ment — 1966]). The amendment also administration of the con- revamped education, it state but did to undercut solidated system nothing fact, it individual to education. In lan- any strengthened Section of Arti- outlining guage legislature’s responsibilities. 1 of 6 and cle 6 of the constitution became Article now original § intellectual, commands: “The shall educa- provide for tional, scientific and vocational and improvement by establishing schools, and related ac- educational institutions maintaining public added.) addition, Art. tivities.” Kan. Const. 1. (Emphasis § in inserted Section 6 of Article: “The new was language legis-
776K lature shall make suitable for finance of the educational 6, 6(b). interests of state.” Kan. Art. Const. § are indications that the framers of our in- constitution Finally, tended education to be a fundamental Education central settlers, to Kansas both and con- pro antislavery. Early proposed document, stitutions and the ultimate at on Wyandotte adopted 29, 1859, and ratified 4 of that October “reveal the ed- July year, The Kansas ucational of the Kansas spirit pioneer.” King, Tendencies, School 424-25. Statutes System History pp. —Its since 1858 enumerated that in must be the com- subjects taught schools; time, mon after that curriculum has been marked con- tinuous and enrichment. See As 425. expansion King, p. Justice discussed U.S.D. Luckert No. 5-6, at the Ordinance slip op. to the Kansas Constitution devoted three of its passed eight sections to education. And the elementary public original amended constitution not devoted an entire article the es- only see U.S.D. tablishment and finance of a system, at of that article and its slip op. placement resulting first, that education was considered a if not emphasis suggest high, of state priority government. cases, factors enumerated it well is also worth
Beyond William Brennan the societal discussed noting Justice J. of education in his dissent: political significance Rodriguez can no doubt be that education is linked “[T]here inextricably in the electoral to the participate process rights *16 free and association the First Amendment.” speech by guaranteed (Brennan, 411 Nilsen, U.S. at 63 see and Blumenson J., dissenting); One Strike and You’re Out? Constitutional Constraints on Zero Education, Tolerance in Public 99,102 65, 81 Wash. U. Q. (Spring 2003). What when in was true Brennan wrote those words 1973 Justice to continues be true in the of the 21st
certainly
early years
century.
Our sister courts have not
instead
educa
disagreed,
recognizing
tion’s
and economic
overwhelming political
importance.
U.S.D. No.
1017;
at 88
649 P.2d at
(citing Lujan,
slip op.
Hornbeck,
UFSD,
649-50;
43;
Levittoum
cation is necessary intelligently pro- any and in our our complex democracy shrinking ductively increasingly An individual citizen’s to is not debatable. world honestly right is in at this level and “fundamental” education every imag- quality Given the our inable sense word. mandatory language record, constitution, and modem exi- of the historical clarity it be is vital for each citizen can otherwise? Education how gencies, and of our less for the survival no republic. imperative progress course, a we the existence of fundamental Of once recognize Constitution, Kansas to education under our question right should be re- how legislation implicating said, have that the viewed. As I I understand and rational agree of review should Like the Minnesota Su- basis standard apply. Skeen, 313-16, however, in N.W.2d at I Court believe preme no return. At that the standard there is theoretical point point, strict If in a school must shift to inequities financing sys- scrutiny. tem so or become deny they functionally egregious actually the fundamental to education to of otherwise sim- right segment students, situated we must be to more of prepared require ilarly our than a rational basis its line mere for drawing. Luckert’s U.S.D. in to the outlined In addition reasons Justice our court rational basis using slip op., adopted standard U.S.D. No. 256 Kan. review as the usual governing 7,1 at least believe there are two other Syl. justifications ¶ cases from school finance for deviation our strict typical scrutiny violations a fundamental alleged indeed, First, an existence —of individual’s exercis.e — to education under the Kansas Constitution is right at least on societal and dependent part govern unavoidably Unlike, free mental action. philosophy example, which are in the or inherent speech humanity privacy, individual cannot be thus any infringed by government, Minnesota, Gilbert v. see L. U.S. Ed. 41 S. Lawrence (1920) natural, inherent); Ct. 125 to free (right speech Texas, 558, 573-74, 156 508, 123 539 U.S. L. Ed. 2d S. Ct. 2472 discussed; choices “central privacy personal (right dig-
776M interference) (cit and from nity protected government autonomy” Planned Parenthood Southwestern PA. v. 505 U.S. Casey, ing 833, 846-47, 120 674, 112 [1992]), L. Ed. 2d S. Ct. 2791 the right least in is at a function of the which our part way and other societies of the world have chosen order and society and to themselves citizens for full and govern prepare political economic but No child the most is ca participation. exceptional himself or herself pable educating completely independently level and assured the fundamental Some quality by gov ernmental assistance or intervention State required. government, is a and facilitator of the exercise through legislature, guarantor as a as well source of interference with it. potential involved, here, When the must be as it must be and government that involvement demands investment of resources at purchased some cost to it is reasonable taxpayers, logical legis lature should be more free than the of strict would specter scrutiny it allow to be it when makes choices. under Even rational policy review, however, basis retains its to decide judiciary power sense, i.e., whether choices make educational whether legislative with the overall constitutional mandates that the they comport leg intellectual, educational, islature vocational and sci “provide entific improvement by establishing maintaining public schools, educational institutions and related activities” and “make suitable for finance educational interest of the state.” Kan. Art. Const. 6. § §
Second, I that rational basis review much to has recom agree i.e., it mend when a case reaches a remedial when we are phase, called upon judge adequacy efficacy legislature’s efforts to correct constitutional identified courts. problems U.S.D. No. at 92-95 Connecticut’s slip op. (discussing III], 24,486 Horton Meskill 195 Conn. A.2d [Horton approach [1985]). reasons, all For I concur in the foregoing judgment most the rationale of I my colleagues. respectfully disagree their view that education is not under the Kansas It is. Constitution. Luckert never held otherwise in Justice U. S.D. This court should not have to that op. jumped slip
776N *18 then, error not reinforce that it should conclusion
regressive now. in the
Davts,
concurring opinion.
J., joins
foregoing
in the
of the ma-
concur
result
Luckert,
I
J.,
fully
concurring:
However, I would find
and most of
rationale.
court
its
jority
under
Kansas Constitu-
that education is a fundamental
Beier s
of this issue.
In this
I
tion.
analysis
regard,
agree
Justice
indicates,
as
I
this issue when
As
Beier
addressed
acting
Justice
State,
of fact in U.S.D. No.
et al. v.
90 CV 2406
the trier
16, 1993)
(Shawnee
Court,
Dec.
District
filed
(Slip op.),
County
there was
did not state a conclusion of law
whether
but
regarding
to education under the Kansas Constitution.
a fundamental
Beier,
Rather,
I
such
as does
cited the
analysis
opinions
Justice
State,
and Kukor
Skeen v.
(Minn. 1993),
N.W.2d
Grover,
v.
(1989),
2d