# Petition for Writ of Certiorari — Bergman v. Kansas (No. 06-472) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1558%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text Supreme Court. U.S. () Pree aut US No. 94-47 2 SEP 13 2006 OFFICE OF THE CLERK In The Supreme Court of the Anited States * ALEXANDER, KATHERINE, WILLIAM, and JAMES BERGMAN, by and through their parents and next friend, BRAD and LIBBY BERGMAN, et al., Petitioners, V. STATE OF KANSAS, et al., Respondents. ¢ On Petition For A Writ Of Certiorari To The Kansas Supreme Court ¢ PETITION FOR WRIT OF CERTIORARI ¢ TRISTAN L. DUNCAN (Counsel of Record) SHOOK, HARDY & BACON L.L.P. 2555 Grand Blvd. Kansas City, Missouri 64108-2613 Telephone: (816) 559-2040 Facsimile: (816) 421-5547 Attorneys for Petitioners September 13, 2006 COCKLE LAW BRIEF PRINTING CO «800) 225 5964 OR CALL COLLECT (402) 342-2831 I. QUESTIONS PRESENTED 1. Does a State violate Equal Protection when it purposefully disadvantages school children by unevenly restricting funds available for public education and then prohibiting under funded school districts from funding the difference out of local funds? 2. Does a State violate the First and Fourteenth Amendments when it purposefully but unevenly restricts State funds available for public education and then prohib- its the under funded school districts from funding the difference out of local funds by imposing a mandatory cap on spending on public education? 3. Did the Kansas Supreme Court violate the Four- teenth Amendment’s Due Process Guarantee when it refused to permit non-party parents and school children to intervene in an action in which the Court indefinitely suspended their right to use local funds to improve their public education without giving them notice or an oppor- tunity to be heard? 4. Did the Kansas Supreme Court violate the 14th Amendment’s Due Process Guarantee when it ignored common law limitations on its remedial discretion and arbitrarily ordered the legislature to indefinitely suspend petitioners’ liberty and property interests until the legisla- ture funded an undefined level of public education for all other children? ii II. PARTIES TO THE PROCEEDING Petitioners are parents and school children attending the Shawnee Mission Unified School District No. 512 or the Blue Valley Unified School District No. 229: Alexander, Katherine, William, James, Brad, and Libby Bergman, Patrick, Doug, Bob, and Debbie Dellinger, Madison, Breanna, and Carol Rowe, Connor, Cameron, and Ann Carollo, Sydney, Wyatt, and Kim Edmisten, Sarah, Na- than, and Dan Goldman, Abigail, Parker, and Bonnie Heying, Connor, Kylie, Courtney, and Tracy Rellihan, Ben and Mary McBride, Graham and Noah Eidemiller, Janice Langholz, Peter, Robby, Joseph, and Judy Moriarty, A.J., Will, Maureen and Trish Orth, Joe, Sydney, and Mary Bahr, Maxwell, Emma, and Christine Braasch, Chase and Susan Schaible Ainsworth, William, Harrison, and Brian Short, Helen, Anna, and Mary Petrow, Johnnie, Danielle, Alexandria, and Julie Norton, Morris, Charles, Ronald, and Barbara Bronstein, Lauren, Erik, Janis, and Chris- tian Hansen, Ryan, Michael, Daniel, Greg, and Laurie Widrig, Lucy, Mary, and Dan Bush, Jonathon, Jefferson, Caroline, Brad, and Rebecca Adams, Andrew, Alexandra, Katie, Steve, and Lori Dykeman, Taylor, Zachary, Donna, and Jim Wilson, Jason, Michael, Michelle, and James Hoffman, Kristin, Eric, Mary, and Dave Larson, Grace, John, and Aymi Foley, Max, Reilly, Brad, and Michelle Agadoni, John Tyler, Megan, Caroline, Susan, and Mark Koenig, Addison, Jillian, and Michelle Schlatter, Hannah, Max, Janice, and Jeff Pinson, Emma, Cameron, David, and Susan Keefer, John, Paige, Kathryn, and Jim Dussold, Brenan Patrick, Conner James, Dillon Thomas, Linda, and Timothy Cavanaugh, Tyler, Andre, Ahmet, and Lori Kodanaz, Justin, Alexandra, Reid, Rhonda, and Patrick iii PARTIES TO THE PROCEEDING - Continued Johnston, Mark, John, Steven, Jennifer, Steve, and Jody Bolton, Blake, Erin, Benjamin, Phil, and Mary Hylton, Bradley, Leslie, Doug, and Shea Dixon, Spencer, Kendra, Betsy, and Tommy Avenia, Trent, Gardner, and Sheryl Wright, Morgan, Elizabeth, Lynne, and Gerald Matile, Marissa, Hayley, Stacey, and Howard Wizig, John, Joseph, William, and Anne Blessing. Respondents are the Attorney General of the State of Kansas, the Kansas State Board of Education, and various state officials charged with enforcement of the challenged Kansas school finance statutes: Connie Morris, Janet Waugh, Sue Gamble, John W. Bacon, Bill Wagnon, Kathy Martin (substituted party), Ken Willard, Carol Rupe, Iris Van Meter, Steve E. Abrams, Bob L. Corkins (substituted party), the Salina Unified School District No. 305, the Dodge City Unified School District No. 443, and parents and school children attending those two school districts in Kansas: Ryan Montoy, Lajuan and Mytesha Robinson, Sierra and Seth Gwin, Rene Bess, Keely Boyce, Cruz Cedillo, Lynette Do, Christopher and Monique Harding, Joseph Hawkinson, Jennie Nguyen, Sandy, Nicole, and Bruce Thu Pham, Andrea Bethke, Damian and Dylan Arredondo, Eduardo Dominguez, Chris Freeman, Monica Garcia, William Zachary Harrison, Robert Hindman, Alex Jake, Yadira Moreno, Manuel Solorzano, Benjamin Vicente, Brittany Ash-Clark, Jin Jeon, Jacob Stack, Bronson Waite, Jacob Lemaster, Nicholas Woodfield Brooke, Blaine Smith, Jerry Dix, Tanner Robidou, Justin Hostetter. iv Ill. CORPORATE DISCLOSURE STATEMENT None of the Petitioners are a corporation that has issued shares to the public, nor are any a parent corpora- tion, a subsidiary or affiliate of corporations that have done so. IV. TABLE OF CONTENTS Page ee OIL sn pesnaceoseninanseunies i Il, Parties to the Proceeding. ..........cssssesesscocsesesseees il III. Corporate Disclosure Statement...................0+5 iv ee a a camiaisemeneiienl Vv ge a I 0 ac sasetreuapeuneeitngeenis vii VI. Opinions and Orders Below........................2..06- 1 ye RESELL ee oreo ROC ne OTE STOO OT 1 VII. Constitutional and Statutory Provisions .......... Be IE OE CI Si oonccnvecowcccssvcceccenecncovcces 2 X. Reasons For Granting the Writ....................... 13 A. This case raises important issues of national significance by seeking to test the constitu- tionality of a state’s efforts to create equality in its public school system by depriving some children, who the state perceives, wrongly, as privileged or advantaged, of equal protection and fundamental liberties guaranteed to them under the Constitution........................ 13 B. This case involves an important question of federal law that has not been, but should be, decided by this Court with respect to the constitutional limits on a state court’s adju- dication of the constitutionality of a state’s school finance scheme under that state’s constitution because, if left undisturbed, the Kansas Supreme Court’s decisions disrupt the balance of power within our federalist system and interfere with the constitution’s preservation of individual liberties............... 19 NRE EERE nN a A RENEE SLATE 23 V. TABLE OF AUTHORITIES Page CASES Brotherhood of Railroad Trainmen v. Baltimore & oe ee SS Lk; | OTe e ND 16 Brown v. Board of Ed. of Topeka, 347 U.S. 483 ERAT NeRRE EO Rate ee ACHE tT eA EL ETE 3 Buckley v. Valeo, 424 U.S. 1 (1976)..........c:ccccceessessreeeeereees 12 Devlin v. Scardetti, 536 U.S. 1 (2002)..........c eee eeceeeeees 3, 16 Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).......... 12, 20 International Union, United Automobile, Aerospace and Agricultural Implement Workers v. Scofield, ee See Ce Ce ereheneeinasaidesinsessedaeabscustedninamvetinases 16 Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967)................. 12 Meyer v. Nebraska, 262 U.S. 390 (1923)...........ceceeseceeee sees 14 Missouri-Kansas Pipe Line Co. v. United States, 312 Bae Bee I ciecsecesvetsancccpaceentaccmnammbbasnniaoasaibiausin 17 Missouri v. Jenkins (Jenkins I), 495 U.S. 33 (1990)....12, 22 Montoy v. State (Montoy ID), 102 P.3d 1160 (Kan. Es covcnimdcasciniasicsipsubdadinemansilammmssdienomaamseamia: a Montoy v. State (Montoy III), 112 P.3d 923 (Kan. RE Pisecouicusstecticsnneincconenecebeevsdisnnbeeddaiabindaniaddasanaiatabeadelannss 1,8 Montoy v. State (Montoy IV), 138 P.3d 755 (Kan. Saath ss asussashoisdsinetbele und supbtaakiidicbeiesbiiaesisailcccbadeiaieidghiasaddainlieianiiliaapaaiais 1 Moore v. City of East Cleveland, 431 U.S. 494 PIE WF Picicikacsdchesitoscenieatdinbsdastiicadioadounmmadaddeitenteaaasmanpalis 11, 12,14 vil i V. TABLE OF AUTHORITIES —- Continued Page Pierce v. Society of Sisters, 268 U.S. 510 (1925).......... 14, 15 Pruneyard Shopping Center v. Robins, 447 U.S. 74 E Fire Pcisisecsdiainsecednatesisadbdscddacentasaibaesianiciamaniameiaal 21 San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 CRP aiciscinsetnisetavivinansenteaiiianmniiacmaneaaapidmaaals 11, 14 U.S.D. 229 v. State, 885 P.2d 1170 (Kan. 1994), cert. denied, 615 U.S. 1144 (190B)...cccccsorocossessessonescoovereoscess 5,7 Village of Euclid v. Amber Realty Co., 272 U.S. 365 SPINE cocsnchsnineapesieivnictesiecninseaieveddeaietmesaaiani Glasiacaatoen 21 Young v. American Mini Theatres, Inc., 427 U.S. 50 Cea sccninscniheinsdintesssuticcsannstonsareeinatemainae aime eee 21 Zelman v. Simmons-Harris, 336 U.S. 639 (2002)............. 16 CONSTITUTIONAL PROVISIONS Rye COME, PINE, 5. OE eskccscnticcvcstiiccamnnaaen 1, 21 Ue. Comat, Hamam, TRG, 6 F seccesissscocvscocessosves 1, 2, 20, 21, 22 Ses SUE, BG FF, Be cssicinccidasenineiennea nese 1, 21 Be, TE, TNE: GO Gi csictictsnccdacesnsariciadekeusacuee 2,8, 23 STATE AND FEDERAL REGULATIONS Be es SBD victncincinincarsthiradieabiemcaiegmcntianans 1 Sa. Far OOe OF BOM, scscsnscitncssiatsbabincndaataanin 4 Pete, FTI astiichensiccinsictadarseiiatclomeiameeaacan 2 VI. OPINIONS AND ORDERS BELOW The Opinion of the Supreme Court of Kansas, dated January 3, 2005, is reported at Montoy v. State (Montoy IT), 102 P.3d 1160 (Kan. 2005). App. 81. The Opinion of the _ Supreme Court of Kansas, dated June 3, 2005, is reported at Montoy v. State (Montoy III), 112 P.3d 923 (Kan. 2005). App. 38. The Order of the Supreme Court of Kansas, dated June 15, 2006, is unreported. App. 1. The Opinion of the Supreme Court of Kansas dated July 28, 2006 is reported at Montoy v. State (Montoy IV), 138 P.3d 755 (Kan. 2006). App. 2. Vil. JURISDICTION On June 15, 2006, the Kansas Supreme Court denied Petitioners’ Motion to Intervene without opinion. App. 1. On July 28, 2006, that Court entered an order dismissing the school finance case and releasing jurisdiction. App. 2. This Court has jurisdiction under 28 U.S.C. § 1257(a). VII. CONSTITUTIONAL AND STATUTORY PROVISIONS 1. The First Amendment to the United States Con- stitution provides in relevant part that: “Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. Amend. I, § 1. 2. The Fourteenth Amendment to the United States Constitution provides in relevant part: “No state shall... deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. 3. Article 6 §6 to the Kansas Constitution provides in relevant part: “The legislature shall make suitable provision for the finance of the educational interests of the state....” Kan. Const. Art. 6 § 6. 6. The Kansas school finance statutes in relevant part are set out in the Appendix to the Petition. K.S.A. 72- 6433(b)(9B). App. 92. IX. STATEMENT OF THE CASE “The year was 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. No- body was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.” — by Kurt Vonnegut, Harrison Bergeron (1961) attached in Appendices. App. 95. “My story mocks the idea of legally eliminating envy by outlawing excellence, which is precisely what the legislature means to do in the public J schools, by putting a cap on local spending on them. Should it prevail it will be possible for me to say there are no longer any truly excellent public schools in all of Kansas. Talk about a level playing field!” 3 — by Kurt Vonnegut, Unpublished Letter to the Editor of the Lawrence Journal-World, dated May 12, 2005 attached hereto in the Appendices. App. 94. This case may be the most important litigation since Brown v. Board of Education, 347 U.S. 483 (1954). No- where is the juxtaposition of the two most revered consti- tutional values, liberty and equality, more at war and in desperate need of constitutional reconciliation than in this case. Here we have the question: How do you strike the proper balance between the liberty and equality interests of parents and local school districts who are willing and able to do more for their children than what the state is willing or able to provide and the equality interests of those parents and school districts who are unwilling or unable to do so? More importantly, who gets to decide the’ question — a state’s highest court or this Court?’ At bottom, this case asks whether it is constitutional for a state to impose on public education spending caps which, in effect, handicap some school districts who the state perceives, wrongly, as privileged or advantaged, to achieve the appearance of equality among all school districts? More importantly, is it constitutional for a state ' As discussed herein, if petitioners are bound by the Kansas Supreme court decisions, then they should be treated as a “party,” not as strangers to the action, because they, in effect, are non-named class members whose interests were not adequately represented by the existing parties to the litigation and who timely objected to the argu- ments advanced by plaintiffs on their behalf at the earliest opportunity after they became aware of them. Devlin v. Scardetti, 536 U.S. 1 (2002) (holding that non-named class members were entitled to appeal without first intervening when petitioners’ interests were not adequately represented by existing parties). 4 to impose mandatory spending caps, not to prevent some school districts from being better than others, but to force some schoo] districts into a permanently disadvantaged state by prohibiting the taxpayers within under funded districts from using their own money to fund the differ- ence? When a state first deprives some of its children of an equal learning opportunity and then wrests from their parents the freedom to use their own money to make up the difference, does such oppressive state action violate the federal guarantee of equal protection and substantive due process? 1. Historical Background. In 1992, seven years prior to the filing of the underly- ing lawsuit, the Kansas legislature amended the school finance statutes to create a system of funding public education whereby all schools in the state would receive comparable per pupil operating expenditures. Before then, dating back to Kansas’s statehood in the 1800s all school districts in the state had been funded entirely from local property taxes, and the per pupil operating expenditures widely varied between school districts. Kansas School District Finance and Quality Performance Act (SDFQPA), K.S.A. 72-6405 et seg. These 1992 amendments changed the system of funding public education by redistributing tax revenue from local property, sales and income taxes to all school districts in the state according to a weighted formula. The formula established a foundational level of education to which all children in Kansas were entitled - the per pupil base rate. App. 85. The Act included a supplemental means for funding educational services called the Local Option Budget 5 (“LOB”). The LOB permitted local school districts to seek voter approval for additional local taxes to improve the education in that district. The Kansas school finance formula, however, set a ceiling on the amount of money any local school district could raise a local taxes for public education. This ceiling is known as the cap on the local option budget (the “Cap”). App. 13. In 1992, the Blue Valley Unified School District No. 229 challenged the legislature’s school finance formula as unconstitutional, including the cap on local spending. U.S.D. 229 v. State, 885 P.2d 1170 (Kan. 1994), cert. denied, 515 U.S. 1144 (1995). Applying a rationality standard of review, the Kansas Supreme Court concluded that all the funding differentials within the school finance formula were rationally related to a legitimate govern- mental objective and, therefore, were constitutional under both the state and federal constitutions. App. 85. Seven years later, in 1999, plaintiffs filed the underly- ing lawsuit against the State of Kansas, the Kansas State Board of Education, and various state officials responsible for enforcing the statute, again challenging the school finance scheme as unconstitutional under both the state and federal constitutions. This time, however, the court came to the opposite conclusion. App. 81, 88. At trial, the court accepted plaintiffs’ federal equal protection argu- ment and held that the school finance formula was not rationally related to 4 legitimate governmental purpose and caused a disparate impact on minority children. App. 84. The trial court concluded that the plaintiffs had proven that the insufficiency of funding was a proximate cause of the plaintiffs’ poor performance on standardized tests. The court was persuaded by plaintiffs’ argument that the “achievement 6 gap” proved plaintiffs were receiving a constitutionally inadequate and inequitable level of education. App. 88-89. The “achievement gap” is the difference between higher test scores on standardized tests taken by Caucasian students, on average, and the test scores of minorities, bilingual, and special education children. Plaintiffs argued that one of the most significant factors contributing to low standardized test scores for plaintiff school districts was large class sizes. The-trial court agreed that class sizes in large to midsize school districts had become “too large for adequate learning to take place.” The district court concluded, therefore, that the Kansas School District Finance and Quality Perform- ance Act was unconstitutional. This gross class size disparity was not unique to the plaintiff school districts, however. Petitioners’ districts had even larger average class sizes than the plaintiff school districts. The cap prevented petitioners’ school districts from achieving small class sizes commensurate with low enrollment districts as well and prohibited them from achieving the most important condition for improved learning — small class sizes.” ? (See-Plaintiffs-Appellees brief at 34, 58, citing R. XXIII 447, R. XLII, 602, R. XLIV, 3263-64) (“Dodge City, Garden City, Wichita, Topeka, and Kansas City all now have pupil teacher ratios ranging from 17 to 1 to 22 to 1 compared to the significantly lower 7 to 1 and 12 to 1 pupil teacher ratios for some of the low-enrollment districts.”). > December 2005 Legislative Post Audit Committee Cost Analysis, Executive Summary, p.23. The Kansas Supreme Court referenced this report in its 7/28/06 final opinion. The report concluded that smal class size is the only proven determinant of improved academic performance: “Four of Five class size studies we reviewed found that smaller classes (Continued on following page) Plaintiffs’ legal strategy, however, was to argue to the court that petitioners’ school districts neither needed nor deserved additional funding. App. 66. Plaintiffs painted a picture of class warfare between “rich” school districts and “poor” school districts and repeatedly described to the court a disparity between “the haves and have nots.” The reality was, however, that while petitioners’ schools were located in a property-rich area, their schools were not wealthy. On a comparative basis, the plaintiff school districts were, in fact, wealthier than petitioners’ school districts because they received more money from the state in per pupil operating expenditures than did the non-party school districts. Shawnee Mission students for example receive $6,833, whereas Dodge City’s students receive $8,216, over a $1,000 per pupil difference. See Ks. Board of Education’s Per Pupil Expenditure Comparison By District for 2005-2006 school year. On March 24, 2004, the defendants appealed to the Kansas Supreme Court, and on January 3, 2005, the court, in effect, overruled its earlier decision in U.S.D. 229 and affirmed the district court in part, concluding that the legislature had failed to make suitable provision for the finance of the public schools as required by Article 6, § 6 of the Kansas constitution. Montoy v. State, 102 P.3d 1160 (Kan. 2005) (Montoy II). App. 81, 84. As a consequence, the court ordered the legislature to pass new legislation which would infuse substantially more money into public education led to improved academic outcomes ... Studies of factors other than class size were less consistent.” * See 4/4/05 Letter from plaintiffs to the Kansas Supreme Court, p.4. 8 and reallocate state funds according to new “guidelines,” i.e., (1) the actual costs of funding “an adequate education” and (2) equity. App. 90. The court stayed the issuance of the mandate to allow the legislature a reasonable time to correct the constitu- tional infirmity in the school finance formula and set a deadline of April 12, 2005 for that to be accomplished. App. 90-91. The legislature responded by enacting changes to the school finance formula on March 30, 2005 (2005 H.B. 2247 (L. 2005, ch. 152], modified by 2005 S.B. 43 [L. 2005, ch. 194] [collectively referred to as H.B. 2247]). See Montoy v. State, 112 P.3d 923 (Kan. 2005) (Montoy III). App. 38. For the first time since 1992, the legislature ad- dressed the specific needs of many non-party school districts, including petitioners’ school districts, by enacting - local funding provisions beneficial to these school districts. These new local funding provisions were known as: (1) a new extraordinary declining enrollment factor, (2) an increase in the cap on the local option budget, and (3) a cost of living increase for teachers who live and work in relatively more expensive urban areas (collectively, the “local funding provisions”). App. 61-64, 65-67. On June 3, 2005, however, the Kansas Supreme Court held that the changes made by H.B. 2247 failed to bring the state’s school financing formula into compliance with Article 6 § 6 of the Kansas constitution. App. 75-80. Most alarming was the court’s stay of the new local funding provisions, including the increased cap, passed by the legislature in H.B. 2247. App. 79. The court stated: 9 HB 2247’s increased dependence on local prop- erty taxes, as decided by each school district, ex- acerbates disparities based on district wealth. We fully acknowledge that once the legisla- ture has provided suitable funding for the state school system, there may be nothing in the constitution that prevents the legis- lature from allowing school districts to raise additional funds for enhancements to the constitutionally adequate education already provided. At least to the extent that funding re- mains constitutionally equalized, local assess- ments for this purpose may be permissible. Clearly, however, such assessments are not acceptable as a substitute for the state funding the legislature is obligated to provide under Arti- cle 6 § 6. That should pre-exist the local tax ini- tiatives. (emphasis added.) App. 69.. Thereafter, on July 6, 2005, the legislature enacted S.B. 3 (L. 2005 Special Session, ch. 2), and in a subsequent opinion, the court ruled that it, in effect, complied with the court’s June 3, 2005 order, for “interim purposes” only. App. 11. The court retained jurisdiction to review further legislative action in the 2006 session. Thereafter, the legislature enacted changes to the school finance formula yet again in S.B. 549 (L. 2006, ch. 197), which was signed by the governor on May 19, 2006. On July 28, 2006, the court determined that with S.B. 549, the legislature had complied with its prior orders and dismissed the appeal with instructions to the trial court to dismiss the case. App. 24. Although the court lifted the stay, the court, in effect, upheld the cap on the local option budget, and the cap continues in operation to this day. The court’s conditions on the operation of local funding provi- sions also continue in force. App. 26. 10 2. The manner of presenting the federal ques- tions. Although plaintiffs challenged the Kansas school finance statutes on behalf of all children in Kansas, petitioners never received notice of the lawsuit. App. 83- 84. Moreover, the rules governing class actions, joinder of parties and claims, including necessary and indispensable parties, appear to never have been followed. Plaintiffs, in effect, acted as class representative but did not adequately represent the interests of petitioners. Plaintiffs opposed allowing any local taxation for public education and, in the remedial phase of the case, vigor- ously opposed removal, or lessening, of the cap in any way. They urged the Court to redistribute funding away from petitioners’ schools to their own schools. Their interests could not have been more adverse. The state defendants also failed to adequately represent petitioners’ interests since they obviously sought to uphold the school finance scheme, including the cap, as constitutional. The first time petitioners became aware of the under- lying lawsuit was when they read about it in the newspa- pers sometime after the Kansas Supreme Court’s January 3, 2005 surprising ruling. App. 81. At that time, petition- ers had no reason to suspect that the Court would change its holding from its prior controlling precedent. More impor- tantly, it was not until the Court’s June 3, 2005 Decision that there was ever any hint that using local taxation for public education, while constitutional, was nevertheless inequitable and as such, impermissible. App. 69-79. Petitioners first tried to protect their interests by filing an amicus curiae brief during the court’s briefing schedule prior to its June 3, 2005 Decision. App. 43. Then, 11 on June 13, 2006, petitioners filed a Motion to Intervene. App. 1. The federal questions pressed by petitioners were clear and precise and are quoted in relevant part below: “In Rodriguez, the United States Supreme Court expressly reserved the question of the con- stitutionality of state ceilings on local taxation which inhibit under-funded schools from improv- - ing their per pupil operating expenditures. The high Court expressly stated it would address that issue ‘another day’...” 1. Equal Protection Analysis. In 1973, the United States Supreme Court decided San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), ... Justice White stated that he believed a state’s ceiling on local taxation pre- sented a federal constitutional question for under funded schools. As he observed, But state [Texas] law places a... ceil- ing on the ... tax rate, a limit that would surely be reached long before Edgewood (the plaintiff school district) attained an equal yield [to other school districts]. Edgewood is thus precluded in law, as well as in fact, from achieving a yield even close to that of some other districts. Rodriguez, 1 U.S. at 67. 2. Substantive Due Process Analysis. For the reasons stated by Justice Stevens in Nixon v. Shrink, 528 U.S. 377 (2000) and the United States Supreme Court in Moore v. City of East Cleveland, 431 U.S. 494 (1977) the Kan- sas cap on expenditures for public education is 12 unconstitutional under a substantive due process analysis because the cap unduly interferes with the fundamental rights of citizens to spend their own money on something they value, i.e., im- provement of their children’s local public educa- tion. Nixon, 528 U.S. at 398-399, citing, Moore »v. City of East Cleveland, 431 U.S. 494, 513 (1977). 3. First Amendment Analysis. The Kansas legislature’s purpose in setting a ceiling on local taxes for improving public educa- tion is allegedly to equalize funding among school districts throughout the state for public education. ... However, in Buckley v. Valeo, 424 U.S. 1 (1976), the United States Supreme Court rejected government imposed spending caps for similar egalitarian purposes as unconstitutional deprivations of liberty under the First Amend- ment.... The point was an uninhibited, wide- open, robust marketplace of ideas was compro- mised by such expenditure caps. See Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967) (public education as a locus for the uninhibited, wide-open, robust marketplace of ideas deserving First Amendment protection). 4. Procedural Due Process. The federal Constitution imposes an ‘inher- ent equitable limitation’ on a state court’s reme- dial power through the Due Process Clause of the 14th Amendment ... [which this Court violated in] staying the local funding provisions, citing, Missouri v. Jenkins (Jenkins I), 495 U.S. 33 (1990) and Honda Motor Co. v. Oberg, 512 US. 415 (1994).” 13 Petitioners now seek certiorari to review the Kansas Supreme court’s denial of their intervention in this case. For all intents and purposes, petitioners were non-named class members who were foreclosed from intervening of right in public interest litigation and barred from assert- ing their own claims at the time the Kansas Supreme Court was determining the constitutionality of the school finance statutes and fashioning relief. App. 83-84. As virtual class members, petitioners are entitled to appeal. Petitioners, therefore, seek review of the state Supreme court’s decisions. X. REASONS FOR GRANTING THE WRIT A. This case raises important issues of national significance by seeking to test the constitution- ality of a State’s efforts to create equality in its public school system by depriving some chil- dren, who the State perceives, wrongly, as privi- leged or advantaged, of equal protection and fundamental liberties guaranteed to them under the Constitution. In a nation founded on individual liberty, self- government, and local initiative, it is inconceivable that a state would prohibit any community from enhancing public education through civic self-sacrifice and collective democratic action, but Kansas has done just that. The state’s unstated, but ostensible, purpose is to make the state’s public education uniform, but it accomplishes this goal by obstructing its citizens’ freedom to use their own money to educate their children. 14 An objective observer might wonder how there could be any harm if children in one district or any district got “too much” education. Maybe the thinking is that if chil- dren learn “too much,” that is, if they excel, then, by definition, they will no longer be “equal,” which outcome must, according to the state, be prevented by severely rationing the funds certain districts may raise from local taxpayers. The state’s remedy is to impose an artificial economic burden — a “cap” (read handicap) — to insure that the spending per student remains artificially low and cannot be overcome by the concerted democratic action of local citizens. Kansas is not alone. At least five other states also impose spending caps on public education.’ This Court has long held, however, that a parent’s ability to “do more for one’s children,” including the “freedom to devote more money to the education of one’s children,” is a fundamental right under the Federal Constitution. San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 48 (1973); Meyer uv. Ne- braska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Moore v. City of East Cleveland, 431 U.S. 494 (1977). When the Kansas Supreme Court upheld the state law capping local school taxes at 27-31% of the * Alaska, AK Stat. 14.17.410(cX1) & (2) (23% spending cap), Colo- rado, CRS 22-54-108(3b)(1) (20% cap on total program funding from local sources); Kentucky, KRS, 157.440(2Xa) (no more than 30% of the district’s budget can come from local levy); Minnesota, Minn. Stat. 126 C. 17(2) (any additional per pupil spending raised through local resources must not exceed 18.2% of the district’s total formula allow- ance); Montana, MCA 20-9-308. In contrast, the majority of states appear to either not impose such caps on total spending for public education or if they do, the caps can be overridden by a vote of the local taxpayers. 15 state’s funding level for a school’s operating budget, a federal question was triggered because Kansas’s cap on local taxation deprives Kansas citizens of fundamental federal rights. Now Kansas citizens who vote to tax themselves more for the education of their children will be in violation of the state law and, arguably subject to punishment. We still are free to spend unlimited amounts on things that are not in the best interests of our children, like spectator sports, video games, and junk food, but it is illegal for petitioners to democratically vote an additional school tax upon themselves for the purpose of improving the educa- tion of all the children in their districts. Thus, the state ceiling on local taxation strips them of their political freedom. As a result of the Kansas Supreme Court’s rulings, petitioners will now be attending schools that are pur- posely under funded by the state and have some of the highest average class sizes in the state. They are forbidden to use their own local funds to offset this disparity. Yet, they are still required to fund the education of children in districts that are not under funded and in which class sizes are measurably smaller. App. 2-37. Ironically, the constitution forbids outlawing private schools; therefore, the wealthy can spend wnlimited sums on their children’s private education — a disparate, but constitutional, result. See Pierce v. Society of Sisters, 268 U.S. 510 (1925). The constitution also prohibits outlawing vouchers, which means private schools already are subsi- dized with public funds. The “freedom of choice” of parents 16 to educate their children in either public or private schools is a superior constitutional value and therefore justifies this disparate, but constitutional, result. See Zelman v. Simmons-Harris, 336 U.S. 639 (2002). However, if the average Kansas family wants to support their public schools through higher voluntary local taxes, they cannot do so. This “choice” is somehow less worthy of constitu- tional protection. Petitioners had an absolute right to be involved as parties in the underlying action and appeal. Any remedy the Kansas Supreme Court fashioned would impact petitioners. App. 83-84. Petitioners were entitled to be involved to defend their interests and make their constitu- tional claims. The Kansas Supreme Court’s refusal to permit peti- tioners’ intervention to assert this federal question under the unique circumstances in this case, therefore, deprived petitioners of due process because it foreclosed petitioners’ access to the courts. See Intl Union, United Automobile, Aerospace & Agricultural Implement Workers v. Scofield, 382 U.S. 205, 215-216 (1965). Although the Kansas Su- preme Court did not permit petitioners to be parties to the appeal, they normally would be bound by the Kansas Supreme Court’s adverse judgment and decrees. Devlin v. Scardetti, 536 U.S. 1 (2002) (stating that non-named class members, like petitioners, who have objected at the earliest opportunity after first learning of the class representative's adverse positions on behalf of the class have the power to bring an appeal without first intervening); Brotherhood of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 524 (1947) (intervention is of right if petitioner is legally bound by the decision and adversely affected by it “there being no other way in which he can better assert the particular 17 interest which warrants intervention.... [A]nd since petitioner cannot appeal from any subsequent order or judgment in the proceeding unless he does intervene, the order denying intervention has the degree of definitiveness which supports an appeal....”); Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 508 (1941) (“[O]ur jurisdiction to consider an appeal from an order denying intervention thus depends upon the nature of the right. If the right is absolute, then the order is appealable, and we may judge it on its merits.”). A related constitutional question, therefore, is: Are petitioners bound by the Kansas Supreme Court’s ruling that: “[While] there may be nothing in the constitution that prevents the legislature from allowing school districts to raise additional funds for enhancements. ... At least to the extent that funding remains constitutionally equal- ized, local assessments for this purpose may be permissi- ble.... [Until then, however] such assessments are not acceptable?” Thus, the Court seems to regard local taxation to be “unacceptable” unless, or until, the legisla- ture first funds a “constitutionally adequate education.” App. 69. “That should preexist the local tax initiatives.” App. 69. In this extraordinary ruling, the Court, in effect, admits the local funding provisions are constitutional, “we fully acknowledge ... there may be nothing in the consti- tution that prevents-the legislature from allowing school districts to raise additional funds... .” App. 69. However, even though they are constitutional, the court still prohib- its them as “unacceptable” because the court believes such self-help would be “disequalizing.” App. 7, 63. If petitioners are bound by this, tk. are entitled to appeal the judg- ment. 18 The Kansas Supreme Court never defined what comprises a constitutionally adequate base education, however. App. 31-34. As Justice Rosen stated in his con- curring opinion, “ ... the decisions in this case demon- strate that the model for a constitutionally adequate education has not been a stationary, definable concept.” App. 34. It is a “moving target.” App. 33. Therefore, peti- tioners’ fundamental federal right to increase the funds available for the education of their children is in limbo, effectively held hostage by the Kansas Supreme Court, pending an undetermined definition of an adequate base level of education. App. 31. While petitioners are seeking relief in federal court, any lower federal court might require petitioners to exhaust all of their administrative remedies, including an appeal to this Court, before seeking relief there. As a practical matter, the Court’s ruling already did and likely will again chill future legislation to expand local funding provisions or remove the cap entirely. App. 24. The Court’s Decisions already induced the legislature to adopt preferential treatment for other school children’s needs, not based on any objective or neutral criterion but, instead, based upon improper classifications of race, national origin, and learning disabilities. App. 19, 84-85, 88. Plaintiffs’ entire case at trial and on appeal was premised on the “achievement gap” between minority, bilingual, and special education children versus Caucasian students. App. 19, 84-85, 88. The remedy the Kansas Supreme Court ordered was intended to correct this “achievement gap” by forcing the state to reallocate more state aid to those school districts with a higher proportion of these catego- ries of students. App. 19, 84-85, 88. Thus, the funding scheme devised by the legislature, at the direction of the Court, involved a kind of reverse discrimination. 19 In contrast, a suspect-class neutral remedy would not have ordered additional funding to those districts having higher proportions of minority, bilingual, or special educa- tion children, but instead would have ordered additional funding according to objective and race-neutral perform- ance-based criterion which would be directed at the problem — non-proficiency on standardized tests, not the color of a child’s skin. In this way, all children scoring below the proficiency level would receive equal treatment. Alternatively, ordering sufficient funding for smaller class sizes in those districts lacking small average class sizes similarly would have been a race-neutral remedy propor- tionate to solving the alleged wrong. B. This case involves an important question of federal law that has not been, but should be, de- cided by this Court with respect to the constitu- tional limits on a state court’s adjudication of the constitutionality of a state’s school finance scheme under that state’s constitution because if left undisturbed, the Kansas Supreme Court’s de- cisions disrupt the balance of power within our federalist system and interfere with the constitu- tion’s preservation of individual liberties. The legal battle regarding the adequacy of and equity in funding K-12 public education is raging across the country in state courts with conflicting results.” App. 25- 26. This battle involves claims by state legislators that the court is usurping its authority to make policy in public school finance. This battle is particularly intense in * The Validity of Public School Funding Systems, 110 A.L.R. 5th 293 (2006 Supp. ). 20 Kansas. Many in the Kansas legislature have proposed constitutional amendments to limit judicial authority or want to require elections of judges in the future.’ Thus, the Montoy decisions pose a constitutional crisis. By ignoring common law restrictions on its equita- ble power, the Court engaged in arbitrary adjudication. As in Honda Motor Co. v. Oberg, 512 U.S. 415 (1994), where this Court struck down a highest state court’s interpreta- tion of the state constitutional amendment on Fourteenth Amendment procedural due process grounds because of the state’s utter disregard of common law limitations on remedial discretion, so here too, the Kansas Supreme Court’s opinions and orders fail to comply with the tradi- tional common law equitable doctrine limiting a state court’s remedial discretion to the least obtrusive means to democratic governance to remedy the constitutional wrong. This absent procedure would “provide protection against arbitrary and inaccurate adjudication.” The equitable common law doctrine restrieting a judicial remedial decree to the least restrictive means to remedy the alleged constitutional wrong would not have permitted the Kansas Supreme Court to stay or condition local funding, a means not causally related to the court’s alleged end. Local funding is not harmful to the plaintiff school districts and is beneficial to other school districts that need additional funding for public education to achieve per pupil expenditures comparable to those enjoyed by a majority of other school districts in the state. ” See, e.g., “Judicial Rulings Raise Ire,” 8/24/06, N.E. Johnson County Sun, Vol. 56, No.34, p. 1A, 7A; “Penalty Right for Nuss,” 8/24/06, N.E. Johnson County Sun, Vol. 56, No.34, p. 7A; www.sunpublications.com. 21 App. 24. Conditioning local funding on the state first funding an undefined base level of education indefinitely suspends petitioners’ liberty and property rights. It is, therefore, an excessive and arbitrary remedy. The Federal Constitution requires a more narrow tailoring of the Kansas Supreme Court’s remedial decrees to comport with the Fourteenth Amendment Due Process Guarantee. Unhike the situation in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), where this Court held that a state court can interpret a state constitution’s first amendment more broadly than the federal equivalent and thereby augment free speech rights beyond what the Federa! Constitution would protect, the state constitu- tional provision at issue here does not protect such nega- tive rights, i.e., individual liberties. Rather, Article 6 § 6, of the Kansas Constitution involves a governmental benefit, i.e., public education. Since the Kansas Supreme Court’s interpretation of the Education Article unduly impinges on petitioners’ federal liberty and property rights, it contravenes the First and Fourteenth Amendments. As this Court in Pruneyard stated, “Our reasoning ... does not .. . limit [a state’s] sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution so long as [they do not] contravene any other federal constitutional provision.” /d. at 81 (citing Village of Euclid v. Amber Realty Co., 272 U.S. 365 (1926); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) (emphasis added)). Thus, this case involves issues of vast national impor- tance regarding preserving the balance of power within our federalist system of government — a balance of power 22 designed to secure individual liberty. These issues are too vital to this nation to allow the Kansas Supreme Court Decisions to go unchallenged. As Justice Kennedy forewarned: This assertion of judicial power in one of the most sensitive of policy areas, that involving taxation, [for public education] begins a process that over time could threaten fundamental a!- teration of the form of government our constitu- tion embodies. Missouri v. Jenkins (Jenkins I), 495 U.S. 33, 81. (Emphasis added.) When this Court talks about a court’s remedial au- thority being exercised in such a way that “over time [the exercise of such power] could threaten fundamental alteration of the form of government our constitution embodies,” then fundamental freedoms protected by the Fourteenth Amendment’s Due Process Guarantee are at stake. In the end, petitioners ask very little. They recognize their civic duty to help fund other school districts located in less property-rich areas and willingly hand over their taxes for this purpose. They also enthusiastically support state funding for those districts, which, like petitioners, lack the necessary learning conditions proven to correlate with higher test scores, i.e., small class sizes. However, what is intolerable is the state’s concerted effort to arbi- trarily, unjustifiably, and unreasonably restrict their ability to voluntarily tax themselves to pay for additional teachers to reduce class sizes — a benefit which the state provides to others but intentionally withholds from peti- tioners. 23 Absent the requested constitutional protection, Kansas succeeds in outlawing excellence and making a mockery of equality. : XI. CONCLUSION For the reasons stated above, the Court should grant certiorari. Respectfully submitted, TRISTAN L. DUNCAN , (Counsel of Record) SHOOK, HARDY & BACON L.L.P.- 2555 Grand Blvd. Kansas City, Missouri 64108-2613 Telephone: (816) 559-2040 Facsimile: (816) 421-5547 Attorneys for Petitioners App. 1 SUPREME COURT ORDER DISTRICT CASE NO. 99C1738 S IN THE SUPREME COURT OF THE STATE OF KANSAS DANIEL D CRABTREE STINSON MORRISON HECKER LLP 12 CORPORATE WOODS SUITE 550 10975 BENSON OVERLAND PARK KS 66210 CASE NO. 04-92032-S RYAN MONTOY, ET AL., APPELLEES/CROSS-APPELLANTS, V. THE STATE OF KANSAS, ET AL., APPELLANTS/CROSS-APPELLEES. YOU ARE HEREBY NOTIFIED OF THE FOLLOW- ING ACTION TAKEN BY THE COURT: MOTION TO INTERVENE BY INDIVIDUAL STUDENTS AT USD #512 AND USD 229. DENIED. RESPONSE NOTED. DATE: 06/15/2006. CAROL G. GREEN CLERK App. 2 IN THE SUPREME COURT OF THE STATE OF KANSAS No. 92,032 RYAN MONTOY, et ai., Appellees /Cross-appellants, V. STATE OF KANSAS, et al., Appellants /Cross-appellees. Appeal from Shawnee district court; TERRY L. BUL- LOCK, judge. Opinion filed July 28, 2006. Appeal dis- missed and remanded with directions. Alok Ahuja, of Lathrop & Gage L.C., of Overland Park, and Stephen R. McAllister, special assistant attorney general, argued the cause, and Jeffrey R. King, of Lathrop & Gage L.C., of Overland Park, David W. Davies, assistant attorney general, and Phill Kline, attorney general, were with Alok Ahuja on the briefs for appellant/cross-appellee State of Kansas. Dan Biles, of Gates, Biles, Shields & Ryan, P.A., of Over- land Park, argued the cause, and Rodney J. Bieker, of Kansas Department of Education, was with him on the briefs for appellants/cross-appellees Janet Waugh, Sue Gamble, John Bacon, Bill Wagnon, Connie Morris, Kathy Martin, Kenneth Willard, Carol Rupe, Iris Van Meter, Steve Abrams, and Bob Corkins. Alan L. Rupe, of Kutak Rock LLP, of Wichita, argued the cause, and Richard A. Olmstead, of the same firm, and John S. Robb, of Somers Robb & Robb, of Newton, were with him on the brief for appellees/cross-appellants. App. 3 Patricia E. Baker and David C. Cunningham, of Kansas Association of School Boards, of Topeka, were on the brief for amicus curiae Kansas Association of School Boards. Lara M. Owens and Mark R. Thompson, of Seigfreid, Bingham, Levy, Selzer & Gee, P.C., of Kansas City, Mis- souri, were on the brief for amicus curiae Kansas Families United for Public Education. David M. Schauner and Robert M. Blaufuss, of Kansas National Education Association, cf Topeka, were on the brief for amicus curiae Kansas National Education Asso- ciation. Stephen R. McAllister and Todd N. Thompson, of Thomp- son, Ramsdell & Qualseth, P.A., of Lawrence, were on the brief for amicus curiae Legislative Coordinating Council. Bernard T. Giefer, of Giefer Law LLC, of WaKeeney, was on the brief for amici curiae Unified School District No. 208, Trego County, Kansas (WaKeeney), et al. (126 other Kansas schoo] districts). Bradley R. Finkeldei and Peter C. Curran, of Stevens & Brand, L.L.P., of Lawrence, were on the brief for amicus curiae Unified School District No. 229 (Blue Valley School District). Thomas R. Powell and Roger M. Theis, of Hinkle Elkouri Law Firm L.L.C., of Wichita, were on the brief for amicus curiae Unified School District No. 259, Sedgwick County, Kansas. Anne M. Kindling, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, was on the brief for amicus curiae Unified School District No. 512, Shawnee Mission, Kansas. App. 4 Per Curiam: This is the fifth time this case has been before this court since the district court sua sponte dismissed the case on November 21, 2001. In that initial appeal by the plaintiffs, we reversed the district court and remanded the case for further proceedings in Montoy v. State, 275 Kan. 145, 62 P.3d 228 (2003) (Montoy J). On remand, the district court held that the Kansas School District Finance and Quality Performance Act (SDFQPA), K.S.A. 72-6405 et seq., was unconstitutional. The defendants appealed, and on January 3, 2005, this court affirmed the district court in part, concluding that the legislature had failed to make suitable provision for the finance of the public schools as required by Article 6, §6 of the Kansas Constitution. Montoy v. State, 278 Kan. 769, 120 P.3d 306 (2005) (Montoy II). We stayed the issuance of the mandate to allow the legislature a reasonable time to correct the constitutional infirmity in the school finance formula and set a deadline of April 12, 2005, for that to be accom- plished. Although we held that increased funding would be re- quired, we did not dictate the manner in which the legisla- ture should amend the financing formula to bring it into constitutional compliance, noting, as did the district court, that “there are ‘literally hundreds of ways’ the financing formula can be altered to comply with Art. 6, § 6.” 278 Kan. at 775. However, we did make it clear that the actual costs of providing a constitutionally suitable education and the equity with which the funds are distributed are critical factors for the legislature to consider in crafting a suitable formula for financing public education. 278 Kan. at 775. The legislature responded by enacting changes to the school finance formula on March 30, 2005. (2005 H.B. 2247 [L. 2005, ch. 152}, modified by 2005 S.B. 43 [L. 2005, ch. App. 5 194] [collectively referred to as H.B. 2247].) See Montoy v. State, 279 Kan. 817, 819, 112 P.3d 923 (2005) (Montoy II). H.B. 2247 provided a funding increase of approximately $142 million for the 2005-06 school year. The changes made by H.B. 2247 included modifications to the weighting components of the finance formula and changes to the authority of certain districts to raise revenue through local ad valorem property taxes. H.B. 2247 modified the funding formula by increasing the Base State Aid Per Pupil (BSAPP), bilingual, and at-risk weightings; phasing in increases in special education funding; eliminating the correlation weighting (while retaining the low enrollment weighting); and providing for annual adjustments to general state aid funding levels in accordance with the Consumer Price Index-Urban (CPI- U). With respect to local revenue generating provisions, H.B. 2247 provided for incremental increases in the 25 percent cap on local option budgets (LOB) over the following 3 years to 30 percent in the 2007-08 school year; authorized districts with high housing costs to levy a “cost-of-living” ad valorem tax to*pay enhanced teacher salaries; and authorized districts with extraordinary declining enroll- ment to apply to the Board of Tax Appeals (BOTA) for permission to levy an additional ad valorem tax. H.B. 2247 also provided for a cost study to be performed by the Legislative Division of Post Audit to “‘determine the costs of delivering the kindergarten and grades one through 12 curriculum, related services and other pro- grams mandated by state statute in accredited schools.’” 279 Kan. at 821. App. 6 After the new legislation became law, this court issued an order to show cause directing the parties to address whether the amendments to the financing formula met the legislature’s constitutional obligation to “‘make suitable provision for financing’” of the public schools. 279 Kan. at 820. The parties were directed to address whether the actual costs of providing a suitable education were consid- ered with respect to each component of the formula, as well as the formula as a whole, “and whether H.B. 2247 exacerbates and/or creates funding disparities among the districts.” 279 Kan. at 820. After an expedited briefing and argument schedule, on June 3, 2005, this court held that the changes made by H.B. 2247 failed to bring the state’s school financing formula into compliance with Article 6, § 6 of the Kansas Constitution. 279 Kan. at 840. This court considered each component of the formula, the new local ad valorem tax authorizations, and the overall funding provided by the changes as a whole and held that although H.B. 2247 provided a significant funding increase, it still failed to provide constitutionally suitable funding for public educa- tion because the changes were not based on considerations of the actual costs of providing a constitutionally adequate education and exacerbated existing funding inequities. 279 Kan. at 839-40. Specifically, this court found that the increases in the BSAPP, at-risk weighting, bilingual weighting, and special education funding all varied substantially from the cost information in the record, and that the State had failed to provide any cost basis to support the amount of funding provided. 279 Kan. at 831-33, 839. Further, this court noted that the low enrollment weighting was not altered, and although we had specifically sought cost justifications App. 7 for this significant funding component, none was provided. 279 Kan. at 836. Moreover, this court found certain components of the amended formula exacerbated unjustified inequities in the distribution of funding. For example, we found that the funding disparity caused by the low enrollment weighting was exacerbated by the elimination of the correlation weighting for middle-sized and large districts. By rolling those funds into the BSAPP, low enrollment districts were given “even more of the funds that previously were de- voted to balancing the disparities in per pupil funding caused by the low-enrollment weighting.” 279 Kan. at 836. We also found that “H.B. 2247’s increased dependence on local property taxes, as decided by each school district, exacerbate(d] disparities based on district wealth.” 279 Kan. at 839. We held that the new cost-of-living property tax provision was not based on any evidence that there was any link between high housing costs and higher education costs or that the 17 districts that would benefit from the provision pay higher teacher salaries. We noted that the evidence at trial demonstrated the opposite — that the districts with high-poverty, high at-risk student populations are the ones that need help attracting and retaining teachers. 279 Kan. at 835. This court also held that H.B. 2247’s two extraordinary declining enrollment provisions were potentially “ex- tremely disequalizing because they are unlimited and have been designed to benefit a very small number of school districts.” 279 Kan. at 838. App. 8 With respect to the increase in the LOB cap, this court found that the failure to provide for equalizing state aid for the new level of LOB authority worsened wealth-based disparities between districts, because districts with high assessed property values can generate maximum LOB revenues with far less tax effort than districts with lower assessed property values and median family incomes. 279 Kan. at 834. Moreover, this court found it significant that H.B. 2247 did not attempt to correct the problem identified in Montoy II, namely, that unconstitutional underfunding has forced some districts to “use the LOB to fund the State’s obliga- tion to provide a constitutionally adequate education rather than enhancements,” as the LOB was originally intended. 279 Kan. at 834. This court also concluded that the Legislative Division of Post Audit (LPA) cost study provided for by H.B. 2247 was insufficient to determine the actual and necessary costs of providing a constitutionally suitable education because it would examine only the cost of “inputs” — the curriculum, programs, and related services required by law, and would not consider the costs of “outputs” — the cost of achieving measurable standards of proficiency. 279 Kan. at 842-43. Accordingly, the court required the cost study to incorpo- rate the costs of outputs in addition to the statutorily mandated elements of a K-12 education. 279 Kan. at 343. Because time was running out for school districts to prepare for the 2005-06 school year, there was no evidence of the actual costs of a suitable education other than the Augen- blick & Myers (A&M) study, and the litigation had been pending since 1999, this court accepted the A&M study “as a valid basis to determine the cost of a constitutionally App. 9 adequate public education” and ordered the legislature to implement for the 2005-06 school year a minimum funding increase of $285 million above the 2004-05 funding level, which included the $142 million provided by H.B. 2247. 279 Kan. at 844-45. The $285 million increase represented one-third of the $853 million estimated cost of implement- ing A&M’s recommendations. Deferring to the cost study analysis to be performed by LPA, this court held that implementation of the remaining two-thirds of the A&M recommendation would be contin- gent upon the results of the LPA study. However, absent compliance, this court stated we would consider ordering an increase in funding of the remaining $568 million for the 2006-07 school year, in addition to other remedies. 279 Kan. at 846. This court also ordered a stay on the increased LOB cap, the cost-of-living weighting, and both extraordinary declining enrollment provisions, due to their potential to exacerbate inequities in funding. 279 Kan. at 846. We retained jurisdiction, stating that further action, if neces- sary “will be taken by this court as is deemed advisable to ensure compliance with this opinion.” 279 Kan. at 847. The governor then called the legislature into special session. See Governor’s Proclamation of June 9, 2005. By July 2, 2005, the legislature had failed to comply with this court's June 3, 2005, opinion, so we issued an order direct- ing the parties to appear on July 8, 2005, and show cause “why this Court should not enter an ORDER enjoining the expenditure and distribution of any funds for the opera- tion of Kansas schools pending the Legislature’s compli- ance with this Court’s June ruling regarding minimum App. 10 funding increases for the 2005-06 school year.” Montoy, Order of July 2, 2005. Thereafter, on July 6, 2005, thetegislature enacted S.B. 3 (L. 2005 Special Session, ch. 2), which provided a funding increase of $147 million over the $142 million provided by H.B. 2247. With respect to the various components of the formula, S.B. 3 increased the BSAPP by another $35 to $4,257; increased the at-risk weighting from .145 to .193; in- creased funding for special education by raising the excess cost reimbursement from 88 percent in 2006-07 to 92 percent; lowered the enrollment cut-off for the low enroll- ment weighting from 1,725 students to 1,662; restored the correlation weighting with a threshold of 1,622 students; eliminated the cap on LOB equalizing supplemental state aid and increased access to LOB equalization for districts with lower property valuations by raising the AVPP entitlement from the 75th percentile to the 81.2 percentile; replaced the extraordinary declining enrollment (EDE)- BOTA provision with a similar declining enrollment provision that applies more broadly to any district with a decline in enrollment from the previous year; and provided for matching state aid for districts with lower property valuations. S.B. 3 also amended the cost study provision to require the LPA to conduct two cost studies: One would study the cost of inputs, and the other would estimate the cost of meeting student performance outcome standards adopted by the State Board of Education (Board). See K.S.A. 2005 Supp. 46-1131. The parties appeared before the court on July 8, 2005. The issue before the court at the July 8 proceeding was App. 11 whether the new legislation complied with this court’s June 3, 2005, order for a minimum funding increase. At that hearing, all parties agreed that S.B. 3 complied with the court’s June 3, 2005, order. On July 8, 2005, this court held: “The legislature, by enacting S.B. 3, has complied with our June 3 opinion regarding the minimum funding increase” for the 2005-06 school year, and we approved the school finance formula, as amended by H.B. 2247 and S.B. 3, “for interim pur- poses.” Montoy, Order of July 8, 2005. Further, because S.B. 3 increased LOB equalization and provided increased access to such equalization, this court lifted the stay on the provision increasing the LOB authority. Order of July 8, 2005. The stay on the EDE-BOTA provision was lifted as well, because S.B. 3 replaced it with a new. provision designed to benefit a larger number of districts. The stays on the cost-of-living weighting and the EDE-Joint Com- mittee on State Building Construction (JCSBC) provisions, however, were continued. This court retained jurisdiction “to review further legisla- tive action which may modify, repeal, or make permanent the temporary solution contained in S.B. 3.” Order of July 8, 2005. On January 9, 2006, LPA completed and submitted to the legislature the cost study report commissioned by H.B. 2247/S.B. 3. As pointed out by the State in its argument before this court, the legislature referred to this report throughout its 2006 session and sought further input and explanation from LPA during the session. Thereafter, the legislature enacted changes to the school finance formula in S. B. 549 (L. 2006, ch. 197), which was signed by the governor on May 19, 2006. App. 12 The plaintiffs then filed a motion for a show cause order and briefing schedule, and on May 22, 2006, this court ordered the parties to brief and argue the issue whether S.B. 549 satisfies our court’s prior orders. Rather than modifying the provisions of S.B. 3/H.B. 2247, the legislature materially and fundamentally changed the way K-12 is funded in this state. S.B. 549 adopted a 3-year funding scheme for K-12. It also alters the formula components by creating two additional at-risk weightings: the high-density at-risk weighting which provides additional at-risk funding for districts with high percentages of at-risk students; and the nonproficient at-risk weighting, which provides $10 million in additional funding in 2006-07 for students who are not proficient in reading or math, but are not classified as at-risk (eligible for the federal free lunch program). An additional fundamental change occurred in providing flexibility to local districts to spend money received for at- risk, preschool at-risk, and bilingual education programs interchangeably. More significant are the changes that S.B. 549 made in the LOB. The school finance formula provided a feature designed to equalize the ability of districts with lower property wealth to raise money through the use of the LOB. The formula was designed so that districts with an assessed valuation per pupil (AVPP) below the 75th percentile would receive supplemental aid in an amount designed to bring them up to par with the district at the 75th percentile of AVPP. Under this formula, districts with an AVPP above the 75th percentile would not receive supplemental state aid. K.S.A. 72-6434. App. 13 The legislature has increased equalization in two ways. First, it increased the LOB equalization threshold from the 75th percentile to the 81.2 percentile of AVPP. K.S.A. 2005 Supp. 72-6434(a). Accordingly, districts with an assessed valuation per pupil below the 81.2 percentile would receive supplemental aid on the LOBs in an amount designed to bring those districts up to par with the dis- tricts at the 81.2 percentile of AVPP. Second, the 25 percent LOB cap on supplemental general state aid was eliminated. See S.B. 3, sec. 12 (b). In S.B. 549, the LOB authority was increased to 30 percent for the 2006-07 school year and 31 percent for 2007-08 and thereafter. An election would be required to adopt an LOB in excess of 31 percent. S.B. 549 did not change the AVPP threshold and did not impose a limit on equalization supplemental aid. S.B. 549 further requires that such supplemental state aid be used to meet accreditation requirements, provide programs required by law, and improve student perform- ance. §.B. 549, sec. 20(e)(1). The 3-year cumulative total of such aid under S.B. 549 is $74 million. Added to H.B. 22471S.B. 3’s increase of $47.7 million, the estimated increase since Montoy IJ is $121.7 million. Under the prior structure, LOB state aid funding has never been considered part of the foundation level of funding provided by the State for a district’s basic operat- ing expenses. However, S.B. 549 now requires that sup- plemental state aid be applied to meet basic educational requirements, essentially making LOB state aid part of the foundation level of funding. Further, the original intent and purpose of the LOB (which would necessarily include LOB state aid) was to App. 14 allow individual districts to fuhd enhancements to a constitutionally adequate education provided and financed by the funding formula. Montoy III, 279 Kan. at 834 (citing Montoy II, 278 Kan. at 774). S.B. 549, however, now provides that school districts are required to use LOB state aid moneys to fund basic educational expenses. The plaintiffs point out that these changes to the LOB state aid do not provide new money and are nothing more than a “money renaming scheme.” Regardless of whether LOB state aid is new money, the point is that these changes to the equalizing state aid provisions of the LOB component of the formula fundamentally alter the struc- ture of the funding system. In addition, S.B. 549 increases the BSAPP from $4,257 to $4,316 in 2006-07; to $4,374 in 2007-08; and to $4,433 in 2008-09. That amounts to an increase of $101.25 million over the 3 years, and $183.75 million since January 3, 2005. The low enrollment weighting adjustment was lowered to 1,637 pupils in 2006-07 and 1,622 pupils in 2007-08 and 2008-09: The high enrollment weighting (formerly the correlation weighting) threshold was lowered to correspond to the changes in the low enrollment weight- ing, resulting in $18.5 million over the 3-year period. At-risk weighting was increased to 0.278 for 2006-07, 0.378 for 2007-08, and 0.456 for 2008-09, resulting in an estimated 3-year cumulative increase of $152.55 million. The 3-year total for high-density at-risk is $29.6 million. Bilingual weighting remained unchanged at .395 (based upon the number of student contact hours in a bilingual program). Special education excess costs reimbursement is set at 92 percent, totaling an estimated $80.3 million over 3 years, and $111.5 million since January 3, 2005. S.B. 549 App. 15 provides an estimated total funding increase of $466.2 million. The total increase in funding since January 3, 2005, is an estimated $755.6 million. S.B. 549 leaves intact the cost-of-living weighting, which is a new local property tax levy intended to allow districts with higher regional costs to raise additional revenue, purportedly to fund higher teacher salaries, although the requirement that funds be used for that purpose was removed from the statute. See 279 Kan. at 835. While we stayed the effect of this provision last year due to concerns about wealth-based disparities, nevertheless, this new component alters the funding formula. We begin our analysis by addressing the State’s first argument that (1) the school finance formula challenged by the plaintiffs no longer exists, and thus, the case is moot, and (2) this court cannot engage in the fact finding necessary to determine the constitutionality of S.B. 549. The first argument was raised in Montoy III, and we rejected it because this case was and continues to be in the remedial stages, or to be more precise, the compliance stage. It continues to have no merit, and we again reject it. As to the State’s second part of the argument, we agree that this court is an appellate court and not a fact-finding court. The constitutionality of S.B. 549 is not before this court. It is new legislation and, if challenged, its constitu- tionality must be litigated in a new action filed in the district court. We have already made the determination that the school finance formula which was before this court in Montoy II was unconstitutional. The school finance system we review today is not the system we reviewed in Montoy II or Montoy III. The sole issue now before this court is whether the legislation passed in 2005 App. 16 and S.B. 549 comply with the previous orders of this court. If they do then our inquiry ends and this case must be dismissed. A constitutional challenge of S.B. 549 must wait for another day. The State argues alternatively that the legislature has been highly responsive to the court’s orders in enacting the 2005 legislation and S.B. 549 and, therefore, the appeal should be dismissed. It points out that the 2005 legislation and S.B. 549 together provide annual increased funding by the 2008-09 school year of $755.6 million over that pro- vided in 2004-05. The State further asserts the manner in which the funds are to be distributed is directly responsive to the concerns expressed by the court in its prior orders regarding at-risk students, special education students, and middle- and large-sized districts. The State also urges the court to lift the stay on the cost-of-living weighting. Although noting it has some concerns with S.B. 549, the State Board of Education contends that S.B. 549, in conjunction with the changes made by the 2005 legisla- tion, makes “suitable provision for finance” of the public schools as required by Article 6, § 6 of the Kansas Consti- tution, as construed by this court, and requests the court to release jurisdiction of the case. The plaintiffs contend that S.B. 549 fails to comply with this court’s prior orders and fails to make suitable provi- sion for finance of the public schools as required by Article 6, §6 of the Kansas Constitution. The plaintiffs contend the funding increases and formula components of S.B. 549 are not based on the actual and necessary costs of provid- ing a suitable system of finance of public education and do not distribute funding equitably, exacerbating existing constitutional deficiencies. App. 17 Specifically, the plaintiffs contend that S.B. 549’s funding for the 2006-07 school year is not based on actual and necessary costs because the funding it provides under the components of the formula is significantly less than the funding increase LPA concluded to be the actual and necessary costs of meeting the mandated performance standards for 2006-07. As a remedy, the plaintiffs request that we order the legislature to implement the LPA Cost Study Analysis outcomes based recommendations for the 2006-07 school year. The State contends that in determining whether S.B. 549 complies with this court’s orders, it would be inappropriate for the court to rely on the LPA Cost Study Analysis as evidence of actual costs because it is not part of the record on appeal, and the validity of its conclusions have not been subjected to expert analysis and judicially determined through operation of the fact-finding process. The plaintiffs contend the LPA Cost Study Analysis is part of the legislative history of S.B. 549 and, therefore, may properly be considered by the court. They argue that this court may accept the LPA Cost Study Analysis as substan- tial competent evidence of the actual and necessary costs of achieving the State Board’s mandated proficiency standards because it was designed and funded by the legislature, performed by its employees, subject to its direction, and presented to the legislature. First, we reject the State’s contention that we may not consider the LPA Cost Study Analysis in determining whether the legislature complied with our orders. Al- though the LPA Cost Study Analysis is not evidence in the record on appeal, it is part of the legislative history of S.B. 549. Cf, Urban Renewal Agency v. Decker, 197 Kan. 157, App. 18 160, 415 P.2d 373 (1966) (historical background, legislative proceedings, and changes in a statute during course of enactment may be considered by the court in determining legislative intent). The LPA Cost Study Analysis was commissioned by the legislature in order to assist in determining the actual costs of providing a suitable funding system. The legisla- ture dictated the parameters of the study, the study was conducted by its employees, subject to the legislature’s direction and oversight, the study was presented to the legislature early in the 2006 session, and there was an ongoing dialogue between the legislature and LPA con- cerning the study during the course of the legislative session. See Memorandum of April 21, 2006 from LPA to all legislators. See also K.S.A. 2005 Supp. 46-1131 (com- missioning LPA to conduct the Cost Study Analysis, setting the parameters of the study, and directing LPA to submit its report to the legislature by a date certain or request additional time); K.S.A. 46-1101 (legislative post audit committee comprised of five -senators and five members of the house of representatives); K.S.A. 46-1102 (LPA headed by the post auditor, who is appointed by the legislative post audit committee); and K.S.A. 46-1103 (establishing LPA, and providing that its employees are under the direct supervision of the post auditor in accor- dance with the policies adopted by the legislative post audit committee). Accordingly, we may consider the LPA cost study as part of the legislative history of S.B. 549 in determining legisla- tive intent as it is relevant to the question whether the legislature has complied with our orders in this case. That does not mean, however, that we may consider the findings and conclusions in the report as substantial competent App. 19 evidence of the actual and necessary costs of providing a suitable education. The cost study has not been subjected to the fact-finding processes of litigation through which the parties were permitted to examine the validity and accuracy of the study, including the methodology and policy decisions supporting the study, the qualifications of the persons participating in the study, the assumptions underlying the study's conclusions, and the veracity of the underlying data. Although such inquiry is vital to determining the validity of the study’s conclusions and the degree of weight to accord the study if offered at trial in the district court, this is an extraordinary appeal and the legislature had the opportunity to analyze the methodology and policy deci- sions of the LPA Cost Study Analysis, and thus to accept or reject its findings as a factor in determining what is suitable finance for the Kansas school system. There is no question that the legislature has substantially responded to our concerns that the funding formula failed to provide adequate funding for students in middle-sized and large districts with a high proportion of minority and/or at-risk and special education students and that the special education, bilingual, and at-risk student weighting factors were distorted by the lack of any actual cost basis. S.B. 549 and the 2005 amendments together provide an estimated annual increased funding by the 2008-09 school year of $755.6 million over that provided in 2004-05. Of that total, $246 million — almost one-third — is directed to at-risk students: $206.5 million in new funding by 2008-09 has been provided through increases in the at-risk weight- ing from .10 to .456 by 2008-09; $29.6 million in additional at-risk funding is directed to districts with high percentages App. 20 of at-risk students; and $10 million is provided to students who, though not classified as “at-risk” under the free lunch eligibility criteria, nevertheless are not proficient in math or reading, based on statewide proficiency assessments. Bilingual funding has been increased from .2 to .395, adding $11 million in new funding as of 2005-06. Further, and significantly, the new legislation provides districts with the ability to use at-risk and bilingual funding interchangeably, giving districts with these students greater flexibility to use those funds to meet their needs. Special education excess cost reimbursement has been increased from 85 percent at the time of Montoy II to 92 percent, and provides by 2008-09 an additional $111.5 million in new funding. The legislature also responded to our concerns about the equitable distribution of funding. Equity does not require the legislature to provide equal funding for each student or school district. In Montoy II, we rejected the plaintiffs’ claim that the school finance act violated the Equal Protection Clause of the United States and Kansas Consti- tutions. What is required is an equitable and fair distribu- tion of the funding to provide an opportunity for every student to obtain a suitable education. Our concerns about the low enrollment weighting were addressed by reducing its relative significance in the funding formula by increasing funding to middle- and large-sized districts with high percentages of special needs students. The legislature has substantially increased the at-risk weighting, including the new high-density weight- ing designed to provide additional funding to middle- and large-sized districts with high percentages of at-risk students. S.B. 549 and the 2005 amendments together App. 21 have provided non-low enrollment districts with an addi- tional $47 million in new funding through the high en- rollment weighting (formerly the correlation weighting), while reducing entitlement to the low enrollment weight- ing by lowering the cut-off from to 1,725 pupils to 1,622 by 2007-08. In addition, we note that by restoring and in- creasing the high enrollment weighting, the legislature was directly responsive to our concern in Montoy III that the elimination of the correlation weighting exacerbated the disparities caused by the low enrollment weighting. Further, the legislature responded to our concerns about wealth-based disparities inherent in the LOB by increas- ing the equalizing LOB state aid AVPP percentile. Our prior orders have made it clear that we were con- cerned that the then existing financing formula was distorted and provided disparate funding because it was based on former spending levels with little or no consid- eration of the actual costs and present funding needs of Kansas public education. The legislature has responded to this concern. The legisla- ture has undertaken the responsibility to consider actual costs in providing a suitable system of school finance by commissioning the LPA to conduct an extensive cost study, creating the 2010 Commission to conduct extensive moni- toring and oversight of the school finance system, and creating the School District Audit Team within LPA to conduct annual performance audits and monitor school district funding as directed by the 2010 Commission. In addition, the new legislation contains numerous provisions designed to improve reporting of costs, expenditures, and needs. App. 22 These new components provide the fundamental frame- work for a cost-based funding scheme in which the legisla- ture will be regularly provided with the relevant, accurate information necessary to meet its constitutional obligation to provide and maintain a suitable system of financing of Kansas public schools. We also find that the LPA Cost Study Analysis was consid- ered by the legislature in making the decisions that underlie the formula changes in S.B. 549 and, thus, the legislature was responsive to our prior orders to consider actual costs. We note the plaintiffs’ contention that be- cause S.B. 549 does not provide funding at the levels recommended by LPA’s cost study, it was not based on actual costs and, therefore, fails to provide constitutionally suitable funding. However, implicit in that argument is the conclusion that the LPA Cost Study Analysis is credi- ble evidence of the actual costs of education. As discussed above, we cannot reach that conclusion. Nonetheless, as we stated in Montoy II: “It is clear in- creased funding will be required; however, increased funding may not in and of itself make the financing formula constitutionally suitable.” 728 Kan. 775. Further, in Montoy III we said: “As set forth earlier in this opinion, the Legislative Divi- sion of Post Audit has been commissioned to conduct a comprehensive and extensive cost study to be presented to the 2005-06 legislature. With such additional information available, the legislature should be provided with the cost information necessary to make policy choices establishing a suitable system of financing of Kansas public schools. “We conclude, however, that additional funding must be made available for the 2005-06 school year to assist in App. 23 meeting the school districts’ immediate needs. We are mindful of the Board’s argument that there are limits on the amount the system can absorb efficiently and effec- tively at this point in the budget process.” 279 Kan. at 845. The legislature is not bound to adopt, as suitable funding, the “actual costs” as determined by the A&M and LPA studies. On the other hand, the legislature cannot ignore the LPA study as it did the A&M study. In commissioning the cost study, the legislature clearly stated in H.B. 2247, Section 3: “‘(a) In order to assist the legislature in the gathering of information which is necessary for the legislature’s consid- eration when meeting its constitutional duties to: (1) Provide for intellectual, educational, vocational and scientific improvement in public schools established and maintained by the state; and (2) make suitable provision for the finance of educational interests of the state, the division of post audit shall conduct a professional cost study analysis to determine the costs of delivering the kindergarten and grades one through 12 curriculum, related services and other programs mandated by state statute in accredited schools.’” 279 Kan. at 840-41. We are mindful of the fact that the funding of public education is extraordinarily complex, just as we are mindful of the realities of the legislative process. We conclude that the legislature’s efforts in 2005 and in 2006 S.B. 549 constitute substantial compliance with our prior orders, through which it will have provided by 2008-09 at least 755.6 million additional dollars to the education of the State’s most precious asset — our children. App. 24 The determination that the funding system failed to provide for suitable funding of the public schools as re- quired by Article 6, § 6 of the Kansas Constitution was the culmination of an extensive 8-day bench trial of this case before the district court, with testimony generating over 1300 pages of transcripts, and over 300 exhibits consisting of thousands of pages, a large number of which were spreadsheets and other documents showing the financial operation and impact of the funding formula for school districts statewide. All of this evidence pertained to the issue at hand — whether the school funding formula as it existed at that particular time was constitutional, Our opinion affirming the district court’s determination on that issue was made on the basis of that extensive record. As previously noted, in response to our orders, the legisla- ture has amended the school finance formula three times. The most recent changes made in S.B. 549 have now so fundamentally altered the school funding formula that the school finance formula that was at issue in this case no longer exists. It has been replaced with a fundamentally different funding scheme for which there are no facts and figures in the record from which we could determine how it will operate over the next 3 years. We recognize that we could remand this case to the district court to allow the plaintiffs to amend their pleading to challenge the new funding formula. However, we decline to do so, electing instead to end this litigation. We do so for two reasons. First, we note the point made by the Chief Justice of the Ohio Supreme Court in DeRolph v. State: App. 25 “A review of sixteen other state Supreme Court decisions that have declared their systems for funding public educa- tion unconstitutional reveals that a majority of those decisions remanded the case to a trial court. However, it is those states that have had the most difficulty producing a final plan that met the Supreme Court’s opinion of consti- tutionality. For example, in New Jersey the issue has been through the courts for a period of twenty years and is now again pending in the New Jersey Supreme Court. Similar experiences, though not as dramatic, have occurred in Arizona, Arkansas, California, New Hampshire and Texas. In each of these states, either the final public school funding plan is not yet approved by the Supreme Court of the state after several years of litigation after remand or the plan has been approved only after several years of litigation.” DeRolph v. State, 78 Ohio St. 3d 419, 421-422, 678 N.E.2d 886, 888 (Ohio 1997) (Moyer, C.J., concurring in part and dissenting in part) (disagreeing with the majority's decision to remand the case to the district court pending legislative compliance so the trial court could hear evidence concerning the remedy after it is enacted and determine any new legislation’s constitutionality). See also Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 (1990) (Abbott IT) (Public School Education Act held unconstitu- tional); Abbott v. Burke, 136 N.J. 444, 643 A.2d 575 (1994) (Abbott III) (court ordered legislature to enact constitu- tional system and retained jurisdiction); Abbott v. Burke, 149 N.J. 145, 199-200, 693 A.2d 417 (1997) (Abbott IV) (thereafter, court ordered interim increased funding and remanded the case to district court for hearings on the special needs of urban students and to determine the costs of funding those needs); Abbott by Abbott v. Burke, 153 N.J. 480, 710 A.2d 450 (1998) (Abbott V) (on appeal from App. 26 district court decision after extensive hearings, court ordered specific, detailed, comprehensive reform plan); DeRolph v. State, 78 Ohio St. 3d 193, 213, 677 N.E.2d 733 (1997) (DeRolph I) (remanded to district court pending legislative compliance); DeRolph v. State, 89 Ohio St. 3d 1, 36-38, 728 N.E.2d 993 (2000) (DeRolph IT) (on appeal after extensive proceedings in trial court, court allowed the State more time to continue to refine system, set out areas of concern to address, and retained jurisdiction). Second, S.B. 549 is a 3-year plan; thus, it may take some time before the full financial impact of this new legislation is known, a factor which would be important in any consideration of whether it provides constitutionally suitable funding. Indeed, as the Board’s attorney pointed out at oral argument, we do not even know at this time how districts used the funding increase provided by the 2005 amendments. The previous orders of this court affirming the judgment of the district court in part and reversing in part are reaf- firmed in this opinion. We lift the stays imposed on the cost-of-living weighting and the extraordinary declining enrollment-Joint Committee on State Building Construc- tion Provision. We dismiss this appeal and remand to the district court with directions to dismiss the pending case. NUSS, J., not participating. ROSEN J., concurring: Every child in Kansas has a fundamental right to an education guaranteed by the Kansas Constitution. I, therefore, agree with the concur- rences to Montoy v. State, 278 Kan. 769, 120 P.3d 306 (2005) (Montoy ID), previously filed by Justices Beier, Davis, and Luckert. In addition to their thorough constitu- tional analysis, I note that every child is mandated to App. 27 attend school. K.S.A. 2005 Supp. 72-1111. Our legislature has required all Kansans with control over or charge of a child to send that child to school. K.S.A. 2005 Supp. 72- 1111. This requirement upon parents and guardians for the compulsory education of their children is paralleled by the requirement upon the legislature to provide that same constitutionally mandated education. Likewise, the citi- zens of Kansas through our state constitution have im- posed a duty on the legislature to “make suitable provision for finance of the educational interests of the state.” Kan. Const., Art. 6, § 6(b). It is our duty, as the arbiters and champions of the Kansas Constitution, to enforce each child’s fundamental right to an education. Any analysis of the issues in this case must necessarily begin with an understanding of this right and the duties associated with that right. Further, I concur with the majority’s conclusion that S.B. 549 (L. 2006, ch. 187) complies with this court’s prior orders and order to dismiss this case. I write separately to express my disagreement with the majority's analysis for concluding that S.B. 549 complies with this court’s prior orders; to express my concern with including equalizing local option budget (LOB) state aid as part of the State’s funding obligation; and to note my disagreement with the dissent remanding this case to the district court. I disagree with the majority's analysis for concluding that S.B. 549 (L. 2006, ch. 197) complies with this court’s prior orders. Although the majority opinion highlights the in- crease in funding for various categories of students, the analysis provides no linkage between those increases and the actual costs as determined by the Division of Legislative Post Audit (LPA) study or the Augenblick & Myers (A&M) study. I recognize that the legislature has appropriated App. 28 substantially more money to the State’s school system. However, this court did not simply order the legislature to appropriate substantially more money. In Montoy II, this court required the legislature to con- sider the “(1) actual costs of providing a constitutionally adequate education and (2) funding equity” to fulfill its constitutional duty for making a “suitable provision for finance of the educational interests of the state.” 278 Kan. at 775. The Montoy III court further ordered that the cost study commissioned by the legislature to be performed by the LPA incorporate consideration of the costs of outputs in addition to inputs. 279 Kan. at 843. LPA completed a study in January 2006, estimating the costs for providing an education based on four different models, including three inputs-based models, distin- guished by class size, and one outputs (or outcomes)-based model. Although the results of the LPA study may be considered as part of the legislative history for determin- ing legislative intent, I agree with the majority's analysis that we cannot consider the study as evidence because it has not been subjected to the fact-finding process of litigation. Nevertheless, the completion of the LPA cost study substantially complies with our order in Montoy III. According to the LPA study, the costs of educating Kansas children using an outcomes-based model requires an additional $399 million in state funding for the 2006-07 school year. The legislature thereafter enacted S.B. 549, which provides a 3-year plan for increasing school funding by approximately $466.2 million. In the first year of the plan, 2006-07, the legislature increased school funding by $194.5 million. In the second year of the plan, 2007-08, the App. 29 increase is $149 million, and in the third year of the plan, 2008-09, the increase is another $122.7 million. The plaintiffs argue that the legislature has fallen well short of the $399 million in additional funding necessary to meet the outcomes-based model costs for the 2006-07 school year. The State and the Kansas Board of Education (Board), on the other hand, argue that 5.B. 549 substan- tially complies with this court’s order to consider the actual costs of education because it was based on the results of LPA’s cost study. To support their argument, the State and the Board assert that the overall state funding provided for 2006-07 will exceed the $399 million increase recommended in the LPA study. However, their argument depends on the inclusion of equalizing LOB state aid as part of the State’s funding obligation in accordance with section 20 of S.B. 549. Because LPA did not include equal- izing LOB state aid as part of the State’s funding for basic operating costs when it calculated the amount of increased funding needed for the outcomes-based education model, the State and the Board argue that the $399 million figure must be reduced by the amount of equalizing LOB state aid. According to the State and the Board, in 2005-06, the State provided $222 million in equalizing LOB state aid. The State argues that after deducting the $222 million from LPA’s recommended increase of $399 million, the total funding increase would be reduced to approximately $180 million. Because S.B. 549 provides $194.5 million in new funding for the 2006-07 school year, the State and the Board assert that the legislature has exceeded LPA’s recommended funding increase. App. 30 Upon closer scrutiny of the State’s figures, it appears the State’s calculation fails to account for approximately $38 million. This is because LPA’s $399 million figure does not include the approximately $38 million in additional equalizing LOB state aid that would be required if LPA’s funding recommendation were adopted. The new funding provided by S.B. 549, however, does include that $38 million increase. Nevertheless, this discrepancy is not significant enough to alter my analysis. If LPA’s $399 million figure is adjusted to include an additional $38 million in increased LOB state aid funding, and $222 million is deducted from that, LPA’s recommendation, as adjusted, would be $215 million. When that figure is compared with the $194.5 million funding increase provided by S.B. 549 for 2006-07, there is substantial compliance with LPA’s recommended funding increase for the outcomes-based model. Accordingly, I conclude that the State has substantially complied with this court’s order to consider the “actual costs of providing a constitutionally adequate education.” Montoy III, 279 Kan. at 830. In addition to requiring the State to consider the actual costs for providing a constitutional education, this court required the funding to be equitably distributed. Montoy II, 278 Kan. at 775. I find that the legislature has been responsive to our order to provide for equitable distribu- tion of funding in two significant ways. Our equity con- cerns included disparate funding between the low enrollment districts and the middle- and large-sized districts with high percentages of special needs students. I agree with the majority that the significant increases in funding directed to the middle- and large-sized districts has reduced the relative significance of the low enrollment App. 31 weighting in the formula. The legislature has also re- sponded to our concerns about LOB inequities due to property value disparities by raising the assessed valua- tion per pupil (AVPP) from the 75th percentile to the 81.2 percentile for equalizing LOB state aid. K.S.A. 2005 Supp. 72-6434(a). However, I have some concern with the new provisions of S.B. 549 that include equalizing LOB state aid as part of the State’s funding toward meeting its constitutional requirement to suitably fund public education. My concern centers on the fact that in order to receive LOB state aid, districts have to impose a local property tax levy by enacting an LOB. Essentially, the State is arguing that - allowing local districts to levy property taxes as a condi- tion for receiving equalizing LOB state aid is synonymous with providing state funding. However, because the LOB is optional and some school boards or taxpayers may reject a local tax to support their school district, children in districts in which base level funding is inadequate and in which an LOB is not adopted, or is not adopted at the full cap, may not have the funds necessary for a constitution- ally adequate education. In other words, if equalizing LOB state aid would be necessary to fund a district’s basic educational costs, and a district or its voters choose not to adopt LOB funding in full or in part, the legislature has not met its constitutional duty to those children in that district. Counting equalizing LOB state aid as part of the State’s foundation funding in essence shifts the legisla- ture’s constitutional responsibility to the local school districts. While the legislature may constitutionally allow local districts to choose to provide extras beyond the minimum constitutionally adequate education, Montoy III, 279 Kan. at 839, it cannot allow districts to choose to fund App. 32 less. By including equalizing LOB state aid to establish that S.B. 549 provides adequate funding, the legislature is essentially making the LOB funding mandatory in those districts where a constitutionally adequate education is not provided by base level state funding. As of 2003, all but four of the Kansas school districts have epted into the LOB funding, and many were at the maxi- mum cap as it then existed. Because there is such a high level of participation in the LOB funding, my concern about the equalizing LOB state aid does not alter my conclusion that S.B. 549 substantially complies with our order to consider actual costs and equitably distribute the State’s education funding. However, so long as the legisla- ture allows the LOB to remain an optional funding source rather than a mandatory one, my concern may be relevant in any subsequent challenge to the funding formula as amended by S.B. 549. In the school districts that receive less than the base level of state funding and which would have been eligible for equalizing LOB state aid but do not adopt an LOB at all, or adopt an LOB in an amount lower than the amount necessary to generate the funding short- fall, the State is arguably still responsible for providing constitutionally adequate funding. If other school districts begin opting out in part or in full of the LOB funding, the equitable distribution of state funding may be at risk. Such heavy dependence on a local contribution has histori- cally caused disparity and equity concerns which have led to Kansas school finance litigation, including this case. We must never again allow a funding scheme that makes the quality of a child’s education a function of his or her parent’s or neighbors’ wealth. The inclusion of equalizing LOB state aid in S.B. 549 provides an essential financial log in keeping afloat the App. 33 raft of adequate funding for the education of Kansas children. However, if local communities at some future time decide to remove that log, the delicate raft will have a difficult time remaining afloat, and, again, the constitu- tional right of all Kansas children to a suitably funded education could soon find itself imperiled. I further note my disagreement with the dissenting position that this case should be remanded for factfinding. Although I agree that the LPA study cannot be considered as evidence, I reject the conclusion that we cannot evalu- ate the legislature’s compliance with this court’s prior. orders without remanding the matter. Following the dissent’s analysis, we could only evaluate the legislature’s compliance with this court’s prior orders if the legislature had followed the A&M study because it was the only cost study in evidence. If this court had intended to require adherence to the A&M study, it should not have deferred further consideration pending the completion of the new cost study, as it did in Montoy III. In rejecting the dissenting position, it is important to note that I am not accepting the LPA study as a model for a constitutionally adequate education. The A&M study estimated the costs for an educational model based on certain inputs and outcomes. The LPA study, on the other hand, estimated the costs for completely different educa- tional models, either based on inputs or outcomes, but not a combination of the two. Without evidence and expert opinions regarding the adequacy of each LPA educational model, this court cannot conclude that the LPA model would provide a constitutionally adequate education. If we were to require such evidence before making a decision, we would find ourselves trying to hit a moving target unless each new cost study estimated the costs for exactly the App. 34 same educational model. However, the decisions in this ease demonstrate that the model for a constitutionally adequate education has not been a stationary, definable concept. In Montoy I, this court ruled that accreditation standards may not be an adequate model. 275 Kan. at 155. In Montoy II, the court reiterated that accreditation standards may not always be adequate and then relied on the legislature’s own definition of “suitable education” in K.S.A. 46-1225(e) (statute authorizing A&M study) to conclude that the standard was not being met. 278 Kan. at 774-75. In Montoy III, this court adopted the educational model from the A&M study as a constitutionally adequate education. Montoy III, 279 Kan. at 844. However, the Montoy III court also interjected another educational model by requir- ing the legislature to estimate the costs for achieving the outputs as necessary elements of a constitutionally ade- quate education. The Montoy III court also defined a constitutionally adequate education in accordance with K.S.A. 72-6439, the statute that requires the Kansas Board of Education to adopt an accreditation system based upon an improvement in performance. As long as the target model for a constitutionally adequate education continues to move, the litigation in this case could continue in perpetuity. Each new cost study based on a new model would require factual testing at the district court before this court could determine whether the amended legislation is constitutional. Such a process would extend into an indefinite future, and the children of Kansas need a resolution of this matter now. Therefore, based on my analysis that the legislature has substan- tially complied with this court’s prior orders, I concur with the result of the majority opinion dismissing this case. App. 35 BEIER, J., concurring in part and dissenting in part: I concur with much in the majority's opinion, including its implicit decision not to interfere with immediate imple- mentation of 2006 S. B. 549 (L. 2006, ch. 197). Implemen- tation must proceed, pending further order of this court. As we have previously observed, time is of the essence. Kansas school administrators, employees, and students need to plan for the coming school year and those that follow, with the assurance that the state funds promised by the legislature and governor by way of S.B. 549 will actually be forthcoming. I respectfully dissent from the majority’ decision to dismiss this action, leaving for another day in a future lawsuit the determination of whether S.B. 549 meets the standard of Article 6, § 6 of the Kansas Constitution. That issue is alive in this action. Constitutionality has always been and remains squarely presented. Further, our earlier opinions and orders in this case consistently and correctly equated compliance with this court’s directives to adher- ence to the legislature’s constitutional mandate. I am not willing to divorce these concepts now. If the State has demonstrated compliance with our directives, the legisia- ture has corrected the constitutional deficiencies in the Kansas design for school finance. The converse would also be true: If the State has not demonstrated compliance with our directives, the legislature has not corrected the consti- tutional deficiencies in the school finance design. Logically and legally, if we meant what we have said, one cannot be satisfied without the other. Reduced to its essence, our June 3, 2005, Supplemental Opinion had two components. The first dealt with the need for increased funding in the 2005-06 school year. That component is moot. The second component dealt with App. 36 constitutionality of Kansas’ school finance design beyond the 2005-06 school year. With regard to that component, we said: “(If (1) the post audit study is not completed or timely submitted for the legislature to consider and act upon it during the 2006 session, (2) the post audit study is judi- cially or legislatively determined not to be a valid cost study, or (3) legislation is not enacted which is based upon actual and necessary costs of providing a suitable system of finance and which equitably distributes the funding, we will consider, among other remedies, ordering that, at a minimum, the remaining two-thirds ($568 million) in increased funding based upon the [Augenblick and Myers] (A&M) study be implemented for the 2006-07 school year.” Montoy v. State, 279 Kan. 817, 846, 112 P.3d 923 (2005). The problem facing the parties and this court now is that, on the appellate record before us, we cannot know the status of (2) or (3) above. The soundness of the methodology and conclusions of the Legislative Division of Post Audit (LPA) cost study have not been tested by a typical adver- sary process. No evidence has been admitted on the ways in which the members of the legislature considered actual and necessary costs or equity. Without testimony and documen- tary evidence in the record to evaluate on these matters, this court simply cannot conclude the State has carried the burden placed upon it last year to demonstrate that the legislature’s actions brought Kansas’ school finance system into compliance with the state constitution. The appropriate way to respond is not to throw the plaintiffs out of court. It is to retain jurisdiction, acknowledge the factual deficien- cies of the record, and remand to the district court for further proceedings focused on the constitutionality of the finance system, as altered by S.B. 549. App. 37 The district court proceedings could include any necessary substitution or realignment of parties, amendment of pleadings, appropriate discovery, and, finally, trial. Such a trial would, among other things, test the methodology and conclusions of the LPA study and the soundness of legisla- tors’ consideration of it in their crafting of S.B. 549. It would also give us a record on the actual adequacy and equity effects of S.B. 549, including the redesignation of local option budget equalization aid, a redesignation never mentioned by any party in 2005 but upon which the State now wishes us to rely heavily to dismiss this case. Such a trial, and the careful study of the district court, also could illuminate whether a need for further remedial action persists, and, if so, what form it should take. There is no question that the legislature has made sub- stantial efforts to improve the adequacy and equity of our school finance system. The political realities of the legisla- tive process make perfection unattainable, and no amount of money committed to public education will ever solve all of the problems of Kansas’ urban poor or of its rural communities losing population. Still, because I am unwill- ing to graft a “good enough for government work” phrase onto Article 6, § 6 of our state constitution, I would permit this case to continue in the district court, where it may be finally resolved or prepared for further, much better informed review by myself and my colleagues. LUCKERT, J., joins in the foregoing concurring and dissenting opinion. END App. 38 IN THE SUPREME COURT OF THE STATE OF KANSAS No. 92,032 RYAN MONTOY, ez ai., Appellees/Cross-appellants, v. STATE OF KANSAS, et al., Appellants/Cross-appellees. SUPPLEMENTAL OPINION Appeal from Shawnee district court; TERRY L. BUL- LOCK, judge. Supplemental opinion filed June 3, 2005. 2005 House Bill “247 is not in compliance with the Janu- ary 3, 2005, opinion of this court and fails to remedy the constitutional infirmities in the Kansas School District Finance and Quality Performance Act (SDFQPA), K.S.A. 72-6405 et seq., identified in that opinion. Kenneth L. Weltz, of Lathrop & Gage L.C., of Overland Park, argued the cause, and Curtis L. Tideman, Alok Ahuja, and Jeffrey R. King, of the same firm, and David W. Davies, assistant attorney general, and Phill Kline, attor- ney general, were with him on the briefs for appel- lant/cross-appellee State of Kansas. Dan Biles, of Gates, Biles, Shields & Ryan, PA., of Over- land Park, argued the cause, and Rodney J. Bieker, of Kansas Department of Education, and Cheryl Lynn Whe- lan, of Lawrence, were with him on the briefs for appel- iants/cross-appellees Janet Waugh, Sue Gamble, John Bacon, Bill Wagnon, Connie Morris, Kathy Martin, Ken- neth Willard, Carol Rupe, Iris Van Meter, Steve Abrams, and Andy Tompkins. App. 39 Alan L. Rupe, of Kutak Rock LLP, of Wichita, argued the cause, and Richard A. Olmstead, of the same firm, and John S. Robb, of Somers Robb & Robb, of Newton, were with him on the briefs for appellees/cross-appellants. Wm. Scott Hesse, assistant attorney general, was on the brief for defendants/cross-appellees Governor Kathleen Sebelius and State Treasurer Lynn Jenkins. Jane L. Williams, of Seigfreid, Bingham, Levy, Selzer & Gee, of Kansas City, Missouri, was on the briefs for amicus curiae Kansas Families United for Public Education. Patricia E. Baker and Zachary J.C. Anshutz, of Kansas Association of School Boards, of Topeka, were on the briefs for amicus curiae Kansas Association of School Boards. David M. Schauner and Robert M. Blaufuss, of Kansas National Education Association, of Topeka, were on the briefs for amicus curiae Kansas National Education Association. Joseph W. Zima, of Topeka Public Schools, was on the brief for amicus curiae Unified School District No. 501, Shawnee County, Kansas. Michael G. Norris and Melissa D. Hillman, of Norris, Keplinger & Hillman, L.L.C., of Overland Park, were on the brief for amici curiae Unified School Districts Nos. 233, 229, and 232, Johnson County, Kansas. Anne M. Kindling, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, was on the briefs for amicus curiae Unified School District No. 512, Shawnee Mission, Kansas. App. 40 Bernard T. Giefer, of Giefer Law LLC, of WaKeeney, was on the briefs for amici curiae Unified School District No. 208, Trego County, Kansas (WaKeeney), et al. (60 other Kansas school districts). Thomas R. Powell and Roger M. Theis, of Hinkle Elkouri Law Firm L.L.C., of Wichita, were on the briefs for amicus curiae Unified School District No. 259, Sedgwick County, Kansas. Janice L. Mathis, of Rainbow/PUSH Coalition, of Atlanta, Georgia, was on the brief for amicus curiae Rain- bow/PUSH Coalition. Cynthia J. Sheppeard, of Weathers & Riley, of Topeka, was on the briefs for amicus curiae Kansas Action for Children. Bob L. Corkins, of Lawrence, was on the brief for amicus curiae Kansas Taxpayers Network. Kirk W. Lowry, of Kansas Advocacy & Protective Services, of Topeka, was on the brief for amicus curiae Kansas Advocacy & Protective Services. Martha B. Crow, of Crow, Clothier & Associates, of Leavenworth, was on the brief for amicus curiae Martha B. Crow. Dr. Walt Chappell, of Wichita, was on the brief for amicus curiae Educational Manageme. Consultants. Tristan L. Duncan and Daniel D. Crabtree, of Stinson Morrison Hecker L.L.P., of Overland Park, were on the brief for amici curiae Individual Students in the Shawnee Mission Unified School District No. 512. Per Curiam: This case requires us to review recent school finance legislation to determine whether it complies with our January 3, 2005, opinion and brings the state’s school App. 41 financing formula into compliance with Article 6, § 6 of the Kansas Constitution. We hold that it does not. FACTS In our January opinion, this court reversed the dis- trict court in part and affirmed in part, agreeing that the legislature had failed to make suitable provision for finance of the public school system and, thus, had failed to meet the burden imposed by Article 6, § 6 of the Kansas Constitution. Montoy v. State, 278 Kan. 769, 102 P.3d 1160 (2005) (Montoy IT). Among other things, we held that the Kansas School District Finance and Quality Performance Act (SDFQPA), K.S.A. 72-6405 et seq., as funded, failed to provide suitable finance for students in middle-sized and large districts with a high proportion of minority and/or at-risk arid special education students; some school dis- tricts were being forced to use local option budgets (LOB) to finance a constitutionally adequate education, i.e, suitable education; the SDFQPA was not based upon actual costs, but rather on former spending levels and political compromise; and the failure to perform any cost analysis distorted the low-enrollment, special education, vocational education, bilingual, and at-risk student weighting factors. We further held that among the critical factors for the legislature to consider in achieving a suitable formula for financing education were “equity with which the funds are distributed and the actual costs of education, including appropriate levels of administrative costs.” We provided this guidance because “the present financing formula increases disparities in funding, not based on a cost analysis, but rather on political and other factors not App. 42 relevant to education.” We also held that “increased funding will be required.” Montoy IT, 278 Kan. at 775. We stayed the issuance of the mandate to allow the legis- lature a reasonable time to correct the constitutional infirmity in the then existing financing formula. Rather than suspend the funding of education, we ordered that. the present financing formula and funding would remain in effect until the court took further action, noting: “The legislature, by its action or lack thereof in the 2005 ses- sion, will dictate what form our final remedy, if necessary, will take.” We set a deadline of April 12, 2005. Montoy IJ, 278 Kan. at 776. The legislature timely responded by enacting 2005 House Bill 2247 on March 30, 2005, which was modified by 2005 Senate Bill 43, passed during the veto session (collectively H.B. 2247). The Governor allowed the bill to become law without her signature, and the new legislation was deliv- ered to this court. On April 15, 2005, we issued an order which, among other things, directed the parties to file briefs addressing “whether the financing formula, as amended by H.B. 2247, meets the legislature’s constitutional burden to ‘make suitable provision for finance’ of the public schools.” The parties were first directed to address 10 specific components of the financing formula. With respect to each of the components, as well as to the formula as a whole, the parties were asked to address our special concern as to whether the actual costs of providing a suitable education was considered and whether H.B. 2247 exacerbates and/or creates funding disparities among the districts. App. 43 Second, the parties were asked to address whether addi- tional fact-finding would be necessary, and, if so, how that fact-finding should be pursued. Third, the parties were asked to address what remedial action should be ordered and on what timetable in the event the court concludes, without additional fact-finding, that the financing formula, as amended by H.B. 2247, is still unconstitutional. The parties were ordered to appear before this court on May 11, 2005, to show cause why the court should or should not find that H.B. 2247 complied with our January opinion. We recognized that the burden of proof had been on the plaintiffs to show that the SDFQPA, as it existed at the time of the filing of the action herein, was constitu- tionally infirm. We held that because the plaintiffs had prevailed, the burden of proof had “shifted to the defen- dants to show that the legislature’s action has resulted in suitable provision for the financing of education as re- quired by Article 6, § 6.” Pursuant to our April order, the defendants, State of Kansas (State) and the Board of Education members and Commissioner of Education (Board), filed separate briefs. The plaintiffs filed a response brief. Ten amici curiae briefs were filed. Oral arguments were heard by this court on May 11, 2005. We must now decide if H.B. 2247 remedies the SDFQPA infirmities identified in our January opinion and thus makes suitable provision for financing of education as mandated by Article 6, § 6 of the Kansas Constitution. To do that, we first need to identify the changes H.B. 2247 makes in the SDFQPA. App. 44 H.B. 2247 modifies the school finance system in several ways. First, it alters the Base State Aid Per Pupil (B SAPP) and several of the weightings and other factors that affect the formula. It increases bilingual and at-risk weightings; it eliminates correlation weighting; it provides for phased-in increases in funding of special education excess costs at a statutorily prescribed level; and it pro- vides for increases in general state aid based on the Consumer Price Index-Urban (CIP-U). It does not substan- tively change the low-enrollment weighting provision as [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1558%3A1. Public record. Not legal advice.