More than six decades ago, the Supreme Court declared school segregation in Topeka, Kansas unconstitutional. Brown v. Bd. of Educ.,
Displeased with the outcome of school finance litigation in state court, plaintiffs, parents of students in the relatively wealthy Shawnee Mission School District (“SMSD”), seek federal intervention to upend decades of effort toward establishing an equitable school finance system in Kansas. Adopting a kitchen-sink approach, they claim that aspects of the state’s school financing regime violate their rights to free speech, to petition the government, to associate, to vote, to education, to equal protection of the laws, to direct the upbringing of their children, and to dispose of their property. Stripped to its pith, plaintiffs’ position is that the U.S. Constitution requires the state of Kansas to grant its political subdivisions unlimited taxing and budget authority. We discern no support for their novel and expansive claims. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm the district court’s orders denying plaintiffs’ motion for a preliminary injunction, granting in part defendants’ motions to dismiss, and denying reconsideration.
I
A
Since it was admitted into the Union, “Kansas has financed public schools through taxes and other mechanisms provided for by the legislature, not by local districts.” Unified Sch. Dist. No. 229 v. State,
In 1966, the people of Kansas ratified amendments tо the Kansas Constitution concerning education finance. Id. As amended, it provides that “[t]he legislature shall make suitable provision for finance of the educational interests of the state.” Kan. Const. art. 6, § 6(b). Not long after-wards, a Kansas state court held the existing state education-financing statute unconstitutional. See USD 229,
Reacting to further legal challenges, the Kansas legislature passed the School District Finance and Quality Performance Act (“SDFQPA”) in 1992. Id. at 1177-78. Under the SDFQPA, Kansas distributes State Financial Aid to school districts under a formula that accounts for differences in the cost of educating each district’s student population. State Financial Aid consists of Base State Aid Per Pupil (“BSAPP”), a fixed dollar amount, multiplied by adjusted enrollment. The term “adjusted enrollment” refers to the number of students who attend school in a district, modified to take into account various factors that indicate certain students are more expensive to educate. For example, each English-Language-Learning (“ELL”) student enrolled in a bilingual education program counts as 1.395 students for adjusted enrollment purposes. The same weighting formula is applied uniformly to all Kansas school districts. As a general matter, poorer districts, because their students are more costly to educate, receive more State Financial Aid than wealthier districts with students that are less costly to educate.
State Financial Aid represents the amount of money to which districts are entitled, but the state does not directly provide that full amount. Under Kansas law, school districts have only those powers delegated to them by the state legislature. See Wichita Pub. Sch. Emps. Union, Local No. 513 v. Smith,
The SDFQPA also permits, but does not require, school districts to impose an additional local property tax to fund a “Local Option Budget” (“LOB”). See Kan. Stat. § 72-6435. A district’s LOB is capped at a certain percent of its State Financial Aid entitlement, see Kan. Stat. § 72-6433, a limit known as the “LOB cap.” At the time the SDFQPA was enacted, the LOB cap was 25%.
The legislature subsequently amended the SDFQPA, loosening the LOB cap in various ways that allowed school districts to raise additional funds at the local level. A coalition of poorer students and school districts challenged these amendments. The Kansas Supreme Court reversed a dismissal of that action, ruling that the trial court failed to adequately consider the performance gap between wealthy and poor students. Montoy v. State,
After Montoy III, the Kansas legislature made additional changes, including an increase to the LOB cap. Dissatisfied with this response, the Kansas Supreme Court held that the amended SDFQPA remained unconstitutional, partly because “the legislation’s increase in the LOB cap exacerbates the wealth-based disparities between districts.” Montoy v. State,
[djistricts with high assessed property valués can reach the maximum LOB revenues ... with far less tax effort than those districts with lower assessed property values and lower median family incomes. Thus, the wealthier districts will be able to generate more funds for elements of a constitutionally adequate education that the State has failed to fund.
Id.
The Kansas legislature again amended the SDFQPA, strengthening a provision that allows poorer districts to receive Supplemental General State Aid (“SGSA”) if they are unable to raise as much LOB revenue as wealthier districts. This time, the Kansas Supreme Court upheld the revised statute. Montoy v. State,
[tjhe legislature ... responded to our concerns about the equitable distribution of funding. Equity does not require the legislature to provide equal funding foreach student or. school district.... What is required is an equitable and fair distribution of the funding to provide an opportunity for every student to obtain a suitаble education.
Id. at 764.
In the wake of the 2008 financial crisis and ensuing recession, the Kansas legislature reduced the amount of SGSA it provided to poorer districts. A coalition of plaintiffs, intervenors in this case, once again sued. In March 2014, the Kansas Supreme Court held that reducing SGSA payments to poorer districts violated the equity mandate of Article 6 of the Kansas Constitution. Gannon v. State,
After briefing was completed in this appeal, the Kansas legislature replaced the SDFQPA with the Classroom Learning Assuring Student Success Act (“CLASS Act”). See 34 Kan. Reg. 272, § 4(a) (April 2, 2015).
B
SMSD, where plaintiffs’ children attend school, is located in Johnson County, in the Kansas City suburbs. It is the third largest school district in Kansas by population, and among the wealthiest districts in the state. SMSD has the highest total assessed property value of any district in the state. It is also one of the top-performing school districts in Kansas. SMSD’s ACT and SAT scores substantially exceed state and national averages, over 84% of its teachers hold master’s degrees or higher, and it was the only Kansas school district to place on the College Board’s Advanced Placement Achievement List in 2011. In 2014, SMSD announced that it was prоviding all high school students a MacBook Air and all middle school students an iPad Air.
Although the percentage of low-income and ELL students enrolled in SMSD has recently increased, overall enrollment in SMSD has declined. The district’s enrollment peaked in 1971 at 45,702 students, and declined to 27,437 students in 2013. Enrollment declined by nearly 10% between 2000 and 2009 alone, and SMSD predicts that its student population will continue dropping. As enrollment declined аnd school buildings aged, SMSD regularly closed under-capacity schools, including 21 elementary schools and three junior high schools. In 2010, the district proposed closing five under-capacity schools and adjusting attendance areas in order to account for declining enrollment. Many parents of children who attended the schools slated for closure, including some plaintiffs in this case, attributed the closures to a lack of funding.
Around the same time, SMSD, like school districts nationwide, faced budget cuts due to the recession. Partly as a result, many teaching positions were eliminated. None of these cuts were a direct result of the 2010 school closures. SMSD faced difficult choices in addressing its declining enrollment -and reduced budget, influenced by many variables. Its decision to cut positions and close schools reflected a choice to continue paying its staff high wages as compared to other districts. SMSD pays its teachers more than any other district in Kansas, and it ranks second to amicus BVSD in principal and superintendent salaries. Partially as a result of SMSD continuing to pay high teacher salaries while cutting positions, in the 2011-2012 school year, SMSD had а pupil-teacher ratio of 17.2, which is somewhat higher than other large Kansas school districts. The pupil-teacher ratio that year was 17.1 in BVSD, 15.9 in Kansas City, 15.9 in Wichita, and 15.3 in Topeka.
Because SMSD contains féwer low-income students, it costs less on average to educate students in SMSD than in many other Kansas school districts. Additionally, because SMSD has the highest total assessed property value of any district in the state, and one of the highest assessed property values per pupil, it raises most of its State Financial Aid entitlement through local effort. Thus, as plaintiffs note, SMSD receives less General State Aid per pupil than less-affluent districts, which raise less of their State Financial Aid entitlement locally and have higher weighted enrollments because their students tend to be more expensive to educate.
However, looking to the amount of General State Aid SMSD receives would ignore relevant differences between it and other districts. For example, before the district court, plaintiffs highlighted two districts, Greensburg and Chapman, which receive more General State Aid per pupil than SMSD does. Those districts received additional funding to rebuild after their schoоl buildings were destroyed by tornadoes. Similarly, on appeal, plaintiffs note
None of the methods of measuring a school district’s per-pupil budget include money donated by parents, foundations, and other sources, unless that money is spent to pay teacher salaries. Parents and other interested parties in Kansas are free to donate money to school districts in a variety of ways. For example, SMSD benefactors have formed the Shawnee Mission Education Foundation, which has contributed over $3.5 million in grants and gifts to the district. Additionally, Johnson County voters previously approved a countywide sales tax, which was projected to raise $42 million in revenue, a portion of which is to be distributed among several Johnson County school districts. This approval reflects a broader trend of Johnson County voters, and specifically SMSD voters, being inclined to approve education taxes. Since 1992, they have voted to approve every tax increase for education put before them.
Plaintiffs hope to use the pro-tax sentiment in SMSD to raise their LOB, but are prevented from doing so by the LOB cap. In 2010 plaintiffs sued various Kansas state officials, seeking to enjoin enforcement of the LOB cap. The district court dismissed their suit for lack of standing. We reversed, in an opinion limited solely to the issue of standing. Petrella v. Brownback,
II
Before considering the merits, we address two jurisdictional issues. Although neither was fully briefed by the parties, we must address jurisdictional issues sua sponte. McClendon v. City of Albuquerque,
A
Plaintiffs seek to appeal four rulings by the district court: (1) its denial of plaintiffs’ motion for a preliminary injunction; (2) its denial of plaintiffs’ motion for summary judgment; (3) its partial grant of defendants’ motions to dismiss; and (4) its denial of plaintiffs’ motion for reconsideration. We conclude that we have jurisdiction to review all but the denial of plaintiffs’ motion for summary judgment.
Although we generally possess jurisdiction only over final orders, it is well established that we have jurisdiction to review interlocutory orders expressly denying in-junctive relief pursuant to 28 U.S.C. § 1292(a)(1). Tri-State Generation & Transmission Ass’n, Inc. v. Shoshone River Power, Inc.,
We would not ordinarily have jurisdiction to review the partial grant of defendants’ motions to dismiss and denial of plaintiffs’ motion for summary judgment, neither of which is a type of interlocutory order covered by § 1292. However, in certain narrow circumstances, we may exercise pendent appellate jurisdiction over rulings that would not otherwise be subject to interlocutory review. Crumpacker v. Kan. Dep’t of Human Res.,
As discussed below, we agree with the district court that plaintiffs are unlikely to prevail on the merits — and are thus not entitled to a preliminary injunction — in part because their claims do not present a valid basis for heightened scrutiny. That holding necessarily resolves plaintiffs’ pendent challenge to the partial grant of defendants’ motions to dismiss. Because our legal conclusion that heightened scrutiny does not apply is necessary to a determination of the injunction issue and resolves the dismissal issue, the dismissal order is reviewable in this interlocutory appeal. See Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir.1995) (pendent appellate jurisdiction is appropriate when ruling on legal question resolves appealable issue and necessarily disposes of otherwise non-appealable issue).
The same is not true of the denial of plaintiffs’ motion for summary judgment. Our holding as to heightened scrutiny will serve as law of the .case upon remand. See United States v. Rodriguez-Aguirre,
B
We must also consider whether plaintiffs’ claims are now moot. “A case is moot when it is impossible for the court to grant any effectual relief whatever to a prevailing party.” Office of Thrift Supervision v. Overland Park Fin. Corp. (In re
In response to the Kansas Supreme Court’s decision in Gannon, the Kansas legislature substantially amended the state’s school financing system. Pursuant to the Senate Substitute for House Bill 2506, which was signed into law on April 21, 2014, the LOB cap was increased from 31% to 33% of a district’s State Financial Aid. The SMSD school board approved a resolution to increase the LOB to 33% for the 2014-15 school year.
Despite the changes to Kansas’ system of school financing, the core elements challenged by plaintiffs remain. Although the SDFQPA formula hаs been replaced by block grants for the next two years, those grants are calculated primarily using the now-repealed SDFQPA formula. Id. at 272, § 4(b)(3). Perhaps most importantly, the LOB cap remains in place, though it has been slightly increased. Id. at 274, §§ 12(a), 13(a). In their response to defendants’ motion to supplement the record, plaintiffs argue that the slight increase in the cap is insufficient and that the higher cap continues to burden their constitutional rights. As outlined in our prior opinion in this case, the forms of relief potentially available to the plaintiffs should they prevail, including enjoining the LOB cap, see Petrella I,
Ill
We review the denial of a preliminary injunction for abuse of discretion. Hobby Lobby Stores, Inc. v. Sebelius,
The district court concluded that plaintiffs were unlikely to succeed on the merits of their claims that the LOB cap: (1) violates their First Amendment rights; (2) burdens their fundamental rights; (3) imposes an unconstitutional condition; and (4) denies them equal protection. Because we agree with the district court that plaintiffs are unlikely to prevail on the merits, we need not address the remaining preliminary injunction factors. See Soskin v. Reinertson,
A
Plaintiffs allege that the LOB cap violates their First Amendment rights to free speech, to association, and to petition the government.
1
In their primary argument that the LOB cap is unconstitutional, plaintiffs urge a simple syllogism: Education is speech; the LOB cap burdens education; therefore, the LOB cap burdens speech. Each of these premises is seriously flawed, and they do not support the conclusion that plaintiffs ask us to draw.
No court has ever recognized that a limit on public funding of education constitutes a limit on speech. The education-related speech cases upon which plaintiffs rely are far afield. In Keyishian v. Board of Regents,
Plaintiffs also rely on campaign finance cases to argue that the LOB cap is unconstitutional because it is a direct restraint on education expenditures. See Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley,
Further, the LOB cap does not restrict expenditures by plaintiffs. It limits property tax levies by school districts. Under Kansas law, plaintiffs may dоnate as much money as they wish to SMSD. See Bonner Springs Unified Sch. Dist. No. 204 v. Blue Valley Unified Sch. Dist. No. 229,
In addition to their speech-suppression claims, plaintiffs contend that the LOB cap impermissibly discriminates against their speech because they are wealthy. The First Amendment disfavors suppression of political speech based on the speaker’s identity, including their wealth. See Citizens United v. FEC,
Plaintiffs claim that the LOB cap is facially unconstitutional because spending on education is never harmful, and there is thus no legitimate reason to ever restrict education expenditures. See United States v. Stevens,
2
Plaintiffs also contend that the LOB cap infringes on their First Amendment association rights because it prevents them from coming together as a community to vote to raise property taxes to fund education at the district level. But we have repeatedly held that there is no First Amendment right to propose a voter initiative. Initiative & Referendum Inst. v. Walker,
Perhaps recognizing the dispositive authority of these cases, plaintiffs suggest that the Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action, — U.S. —,
Plaintiffs also rely on Citizens Against Rent Control, which referenced the historical practice of “persons sharing common views banding together to achieve a common end.”
3
In a conclusory argument, plaintiffs assert that the LOB cap violates their First Amendment right to petition the government. When issues are not adequately briefed, they are deemed waived. Utahns for Better Transp. v. U.S. Dep’t of Transp.,
B
Plaintiffs go on to argue that the LOB cap violates several fundamental liberties. “[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” Planned Parenthood of Se. Pa. v. Casey,
Nothing in the history and tradition of the U.S. Constitution indicates that there is a fundamental right to tax one’s neighbors without limitation at the local government level to fund education. Public education was virtually nonexistent at the time the Constitution was ratified. Morse,
l
Various cases have addressed the question of whether there is a “fundamental” right to education in constitutional terms. Kadrmas v. Dickinson Pub. Schs.,
As in Rodriguez, we are loathe to disturb a matter better left to the states, and we discern “no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved.”
Plaintiffs rely heavily on Papasan v. Allain,
The Papasan Court also distinguished Rodriguez on the ground that the latter “held merely that ... variations [in school funding] that resulted from allowing local control over local property tax funding of the public schools were constitutionally permissible in that case.”
Plaintiffs advance a convoluted argument that neither Rodriguez nor Papasan applies. Justice White’s dissent in Rodriguez noted that for a poor school district in San Antonio to raise equal tax revenue to a neighboring, affluent district, it would have to levy a property tax well above Texas’ statutory property tax cap.
Plaintiffs further attempt to distinguish Rodriguez by claiming that they are intentionally discriminated against on the basis of their wealth. This argument is also foreclosed by Rodriguez, which held that a school district’s relative wealth is not grounds for heightened scrutiny.
2
In their second fundamental rights challenge, plaintiffs argue that the LOB cap undermines their right to direct the education of their children. They cite a litany of cases recognizing the fundamental right of parents to make decisions about the care, custody, and education of their children. See Troxel,
But none of these cases recognize a fundamental liberty interest in setting policy for public education funding. All focus on the content of education or school attendance. Further, we have previously held that “parents simply do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority over that subject.” Swanson ex rel. Swanson v. Guthrie Indep. Sch. Dist.,
In their reply brief, plaintiffs claim that our decision in Kitchen v. Herbert,
3
Plaintiffs also contend that the LOB cap violates their fundamental property right to spend their own money as they wish. They cite Justice Stevens’ concurrence in Moore v. City of East Cleveland,
Plaintiffs argue that other Kansas laws would penalize a district that accepts donations and that this penalty violates the First Amendment. See Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, — U.S. —,
4
The right to vote is fundamental. Reynolds v. Sims,
As we have previously recognized, this is a critical distinction. In Save Palisade, we considered a challenge to a Colorado law allowing citizens in home rule counties, but not statutory counties, the power of initiative. See
Similarly, in Walker, we explained that a Utah law requiring supermajority approval of initiatives involving wildlife issues was not subject to strict scrutiny because it involved the process through which laws are enacted, not the communicative conduct of people who support a political position.
Additionally, Plaintiffs argue that the LOB cap is unconstitutional because it impermissibly restricts voting based on economic status. See Anderson v. Celebrezze,
C
In a related argument, plaintiffs contend that the LOB cap places an unconstitutional condition on their fundamental right to education and to vote, and imply that it also places an unconstitutional condition on their First Amendment rights. The unconstitutional conditions doctrine forbids the government from denying or terminating a benefit because the beneficiary has engaged in constitutionally protected activity. See Koontz v. St. Johns River Water Mgmt. Dist., — U.S. —,
The doctrine only applies if the government places a condition on the exercise of a constitutionаlly protected right. See Reedy v. Werholtz,
Even if plaintiffs’ claimed rights were recognized, their unconstitutional conditions arguments are unavailing. Plaintiffs rely on Meyer v. Grant,
D
In addition to their fundamental rights arguments, plaintiffs argue that the LOB cap should be reviewed under heightened scrutiny because it denies them equal protection of the law based on a bare desire to harm them. They claim that, as residents of a relatively wealthy school district, they are part of a “politically unpopular. group.” See United States v. Windsor, — U.S. —,
E
In the alternative, plaintiffs claim that they are likely to succeed on the merits because the LOB cap cannot survive rational basis review. Under such review, a state statute “must be upheld ... if there is any reasonably conceivable state of facts that could provide a rational basis for” it. FCC v. Beach Commc’ns, Inc.,
The district court concluded, and defendants and intervenors now argue, that the Kansas legislature enacted the LOB cap to promote equity in education funding. This is obviously a legitimate government interest. The Supreme Court has explained that “the opportunity of an education ...
Moreover, the Kansas Constitution requires equity in education funding. Gannon,
Plaintiffs suggest that SMSD receives an inequitable level of funding. But, as noted above, they expressly waived any challenge to the components of the formula under which total State Financial Aid is calculated. And the Kansas Supreme Court has upheld the need-based aspects of the state’s financing system. See Montoy V,
Even if equity is a rational goal, plaintiffs contend that capping the amount of money districts may raise and spend at the local level is not a legitimate means to achieve that goal. But plaintiffs, narrowly focusing on the interests of SMSD alone, fail to recognize that districts compete with one another for educational resources, like high-quality teachers. By limiting the ability of individual districts to outspend their neighbors, Kansas rationally promotes an equitable distribution of resources throughout the state and seeks to prevent an inter-district arms race from raising the cost of education statewide. Further, by limiting local authority, Kansas channels the efforts of those seeking increased education spending for their own children towards the state level, where such efforts can benefit a broader class of students.
The plaintiffs, or even judges on this court, may well have chosen a different means of equitably funding education in Kansas. But rational basis review does not require that the means chosen by a state be the best available. See Dandridge v. Williams,
IV
We review a district court’s grant of a motion to dismiss de novo. Albers v. Bd. of Cnty. Comm’rs,
The district dismissed plaintiffs’ various claims that the LOB cap should be reviewed under heightened scrutiny. It allowed plaintiffs’ claims that the LOB cap violated their equal protection rights to proceed further on rational basis review.
V
Plaintiffs make much of the laboratory of democracy concept. But they fundamentally misapprehend its meaning. In New State Ice Co. v. Liebmann,
Kansas’ school funding system exemplifies how states can serve as laboratories of democracy. Citizens in many states no doubt desire an educational system that is both equitable and adequate. The people of Kansas desired such a system so strongly that they amended their Constitution to require -it. Through decades of litigation and frank communication between the state’s three branches of government, Kansas created a system that seeks to equitably distribute resources throughout the state, and does not make “the quality of a child’s education a function of his or her parent’s or neighbors’ wealth.” Montoy V,
We DISMISS plaintiffs’ challenge to the district court’s denial of summary judgment. We otherwise AFFIRM and REMAND for further proceedings. Defendants’ motion to supplement the record is GRANTED.
Notes
. SMSD, which is an amicus in this case, was also an amicus in Montoy III and Montoy IV.
. We sua sponte take judicial notice of this statute, and admonish the parties for failing to apprise the court of this development. See United. States v. Coffman,
. Because the CLASS Act has not yet been codified, we cite to the prior versions of the Kansas Statutes throughout this opinion.
. Because these events occurred after the district court issued its order in this case, defendants moved to supplement the record with them, arguing that they render the case partially moot. We grant defendants' motion to supplement the record. See Morganroth & Morganroth v. DeLorean,
. Of course, the First Amendment does not protect all student speech. See Morse v. Frederick,
. Many of the other cases cited by plaintiffs in support of their free speech claim do not involve education at all. See Sorrell v. IMS Health, Inc., — U.S. —,
Plaintiffs also claim support from dicta in a dissenting opinion suggesting that Meyer and Pierce might have been better decided under the First Amendment. See Troxel v. Granville,
. In their reply brief, plaintiffs argue that the Kansas legislature granted school districts home rule authority, providing unlimited power to levy taxes. This argument is clearly foreclosed by the Kansas Supreme Court’s 2014 Gannon decision, which reaffirms that school districts have "the power to assess taxes locally only to the extent that authority is clearly granted by the legislature.”
. Hargrave, a vacated district court decision from another circuit, is at best potentially persuasive authority. As discussed in Part III.E, infra, we are not persuaded that plaintiffs are likely to succeed on the merits of their claim that the LOB cap lacks a rational basis, the rationale for striking the tax cap at issue in Hargrave.
. Even if plaintiffs were correct that the LOB cap implicates a fundamental right, "a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation with Representation of Wash.,
. Alternatively, we deem this argument forfeited. Although plaintiffs raised it before the district court and in their reply brief, it was never raised in their opening brief. United States v. Benoit,
. The defendants have not cross-appealed the partial denial of their motion to dismiss, and thus we have no occasion to rule on the aspects of plaintiffs’ claim that the district court has permitted to proceed.