Gannon v. State

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 113,267

LUKE GANNON, BY HIS NEXT FRIENDS AND GUARDIANS, et al.,
Appellees,

v.

STATE OF KANSAS,
Appellant.

SYLLABUS BY THE COURT

1.
Whether a trial court erred in refusing to permit a party to reopen a case to
introduce additional evidence is reviewed for abuse of discretion. The party asserting
such an abuse bears the burden of establishing it.

2.
Injunctive relief must address future action or remedy an ongoing wrong—not
wrongs already committed.

3.
Under K.S.A. 60-409(b), "judicial notice may be taken without request by a party,
of . . . (4) specific facts and propositions of generalized knowledge which are capable of
immediate and accurate determination by resort to easily accessible sources of
indisputable accuracy." In general, a court may take judicial notice of statistics
maintained in the records of a state department.

4.
The findings required by K.S.A. 2016 Supp. 60-252(a) should be sufficient to
resolve the issues. They also should be adequate to advise the parties, as well as the

1
appellate court, of the reasons for the decision and the standards applied by the trial court
which governed its determination and persuaded it to arrive at the decision.

5.
Whether a claim is nonjusticiable because it may be a political question is solely
for the courts to decide as a matter of law by applying the factors identified in Baker v.
Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

6.
Under the facts of this case, the school districts' claims arising under Article 6 of
the Kansas Constitution, e.g., whether the legislature has complied with its duty, present a
justiciable case or controversy because they are not political questions.

7.
While the legislature has the power and duty to create a public education financing
system for grades K-12 that complies with Article 6 of the Kansas Constitution, it clearly
has a myriad of choices available for complying with that duty.

8.
Because the Supreme Court is the final authority to determine adherence to
constitutional standards, it has the power and duty to review legislative enactments to
ensure the legislature's compliance with its duty under Article 6 of the Kansas
Constitution. As the final authority, however, the court has no power to overturn a law
enacted within constitutional limits, even though the law may be unwise, impolitic, or
unjust.

9.
To determine legislative compliance with the adequacy requirement in Article 6,
Kansas courts apply the test from Rose v. Council for Better Educ., Inc., 790 S.W.2d 186
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(Ky. 1989), which establishes minimal standards for providing adequate education. More
specifically, the adequacy requirement is met when the public education financing system
provided by the legislature for grades K-12—through structure and implementation—is
reasonably calculated to have all Kansas public education students meet or exceed the
standards set out in Rose and presently codified in K.S.A. 2016 Supp. 72-1127.

10.
Whether through structure and implementation the public education financing
system for grades K-12 is reasonably calculated to have all public education students
meet or exceed the Rose standards presents a mixed question of fact and law.

11.
When an appellate court reviews mixed questions of fact and law, it applies a
bifurcated standard of review. Insofar as any of the trial court's factual findings are in
dispute, the appellate court applies a substantial competent evidence standard. Substantial
evidence is such legal and relevant evidence as a reasonable person might accept as
sufficient to support a conclusion.

12.
In determining whether substantial competent evidence supports the trial court's
findings, appellate courts must accept as true the evidence and all the reasonable
inferences drawn from the evidence which support the trial court's findings and must
disregard any conflicting evidence or other inferences that might be drawn from it.

13.
Under the circumstances of this case, substantial competent evidence supports the
findings of the trial court, and those findings are not contradicted by the facts judicially
noticed for the first time on appeal.

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14.
The ultimate determination of whether the legislature is in compliance with Article
6 of the Kansas Constitution is a question of law over which an appellate court exercises
unlimited review.

15.
In determining whether the adequacy requirement of Article 6 of the Kansas
Constitution is being met, it is appropriate for courts to look at both the public education
financing system's inputs, e.g., funding, and outputs, e.g., outcomes such as student
achievement.

16.
Regardless of the source or amount of funding, total spending is not the touchstone
for adequacy in education required by Article 6 of the Kansas Constitution.

17.
Under the facts of this case, the state's public education financing system provided
by the legislature for grades K-12, through its structure and implementation, is not
reasonably calculated to have all Kansas public education students meet or exceed the
standards set out in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989),
and as presently codified in K.S.A. 2016 Supp. 72-1127.

Appeal from Shawnee District Court; FRANKLIN R. THEIS, ROBERT J. FLEMING, and JACK L.
BURR, judges. Opinion filed March 2, 2017. Affirmed.

Stephen R. McAllister, solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy
attorney general, M.J. Willoughby, assistant attorney general, Dwight R. Carswell, assistant solicitor
general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were with him
on the briefs for appellant State of Kansas; Arthur S. Chalmers, Gaye B. Tibbets, Jerry D. Hawkins, and

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Rachel E. Lomas, of Hite, Fanning & Honeyman, LLP, of Wichita, were with him on the briefs for
appellant State of Kansas.

Alan L. Rupe, of Lewis Brisbois Bisgaard & Smith LLP, of Wichita, argued the cause, and
Jessica L. Skladzien and Mark A. Kanaga, of the same firm, and John S. Robb, of Somers, Robb & Robb,
of Newton, were with him on the briefs for appellees.

Per Curiam: This is the fourth school finance decision involving these parties and
Article 6 of the Kansas Constitution, which imposes a duty on the legislature to "make
suitable provision for finance of the educational interests of the state." Kan. Const. art. 6,
§ 6(b). The plaintiffs filed suit in 2010 asserting that the State violated this constitutional
requirement by inequitable and inadequate funding of K-12 public education. A three-
judge panel was appointed to hear the case pursuant to K.S.A. 2009 Supp. 72-64b03.
After a 16-day bench trial that produced a 21,000-page record, the panel issued a 250-
page memorandum opinion and entry of judgment. In it, the panel determined that
through K.S.A. 72-6405 et seq. (School District Finance and Quality Performance Act or
SDFQPA), the State had inequitably and inadequately funded education in violation of
Article 6.

On appeal, we affirmed the panel on equity and remanded for it to make
determinations in the remedial phase. While we also affirmed that Article 6 contains a
public education adequacy component, we determined the panel did not apply the correct
standard in concluding the State violated that constitutional requirement. Gannon v. State,
298 Kan. 1107, 1111, 319 P.3d 1196 (2014) (Gannon I). There, we interpreted Article 6,
§ 6(b) to include, as minimal standards of an adequate public education system, the seven
educational "capacities" outlined by the Kentucky Supreme Court in Rose v. Council for
Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989), that had been essentially adopted by
our legislature and codified in statute in 2005. 298 Kan. at 1170. See K.S.A. 2005 Supp.
72-1127.

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 While we had recognized that adequacy and equity "do not exist in isolation from
each other," on later appeals from panel decisions made on remand we chose to first
address its treatment of the equity issue. 298 Kan. at 1199. We accepted the parties'
separate briefs on equity on September 2015 and later on the issue of adequacy. We
resolved the equity issue through a series of decisions and orders followed by a special
session of the legislature in June 2016 that produced additional school finance legislation
and appropriations. Gannon v. State, 303 Kan. 682, 741-42, 368 P.3d 1024 (2016)
(Gannon II); Gannon v. State, 304 Kan. 490, 372 P.3d 1181 (2016) (Gannon III). We
ultimately held that for the 2016-2017 school year, the legislative response cured the
constitutional inequities confirmed to exist in our previous decisions. Sup. Ct. Order,
Case No. 113,267 (June 28, 2016).

On remand the panel was also tasked with making an adequacy determination,
complete with findings, after applying the more clearly defined Rose-based test to the
facts. 298 Kan. at 1171. We instructed that "the panel must assess whether the public
education financing system provided by the legislature for grades K-12—through
structure and implementation—is reasonably calculated to have all Kansas public
education students meet or exceed the standards set out in Rose [citation omitted] and as
presently codified in K.S.A. 2013 Supp. 72-1127." 298 Kan. at 1199-1200.

After our March 2014 remand via Gannon I, the panel issued several rulings,
primarily on the existing trial record. It ultimately declared the financing under the
SDFQPA to be constitutionally inadequate under the Gannon I test. Soon thereafter the
2015 legislature enacted the Classroom Learning Assuring Student Success Act (CLASS)
which repealed and replaced the SDFQPA. L. 2015, ch. 4, secs. 4-22; K.S.A. 2015 Supp.
72-6463 et seq. CLASS operates as a "block grant" to school districts, essentially
freezing K-12 funding levels for fiscal years 2016 and 2017 at the fiscal year 2015 level
until the Act expires on June 30, 2017, by which time a replacement financing formula
was to have been studied, designed, and put in place by the legislature. The panel later
6
declared CLASS unconstitutional for substantially the same reasons it earlier had
declared the SDFQPA unconstitutional.

The State advances five basic issues arising out of the panel's actions on remand.
Specifically, it complains (1) that the panel did not have jurisdiction to adjudicate the
constitutionality of CLASS; (2) the state's compliance with Article 6 is a nonjusticiable
political question; (3) the panel erred in not reopening the trial record and admitting
additional evidence; (4) the panel's memorandum and order of December 2014 failed to
adequately set out its findings of fact and conclusions of law pursuant to K.S.A. 2016
Supp. 60-252(a); and (5) the panel erred in holding that the state's K-12 public education
financing system under CLASS is constitutionally inadequate.

After careful consideration of the arguments and the extensive record—including
taking judicial notice of facts from accessible sources of indisputable accuracy at the
invitation of the parties—we reject the State's contentions and affirm the panel's holding
that the financing system is constitutionally inadequate.

We hold that CLASS does not meet the structure requirement contained in the
Gannon I test. In effect, it is merely a fund created by freezing school districts' funding
for 2 school years at a prior year's level. It also is only minimally responsive to
financially important changing conditions such as increased enrollment.

We further hold that CLASS does not meet the implementation requirement of the
Gannon I test for constitutional adequacy. Plaintiffs have shown through the evidence
from trial—and through updated results on standardized testing since then—that not only
is the State failing to provide approximately one-fourth of all its public school K-12
students with the basic skills of both reading and math, but that it is also leaving behind
significant groups of harder-to-educate students. See, e.g., U.S.D. No. 229 v. State, 256

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Kan. 232, 244, 885 P.2d 1170 (1994) (some student populations to whom higher costs are
associated). As of the 2015-2016 school year, some examples include:

 Approximately 15,000 of our state's African American students, or nearly
one-half of their total student population, are not proficient in reading and
math—subjects at the heart of an adequate education.

 Approximately 33,000 Hispanic students, or more than one-third of their
student population, are not proficient in reading and math. When combined
with the 15,000 underperforming African American students, the sum
equates to approximately all the K-12 public school students in every
school district in every county with an eastern boundary beginning west of
Salina—more than one-half of the state's geographic area.

 More than one-third of our state's students who receive free and reduced
lunches are not proficient in reading and math.

Plaintiffs have also proven by substantial competent evidence that the student
performance reflected in this data is related to funding levels.

Accordingly, we conclude the state's public education financing system, through
its structure and implementation, is not reasonably calculated to have all Kansas public
education students meet or exceed the minimum constitutional standards of adequacy.

Given these conclusions, we next consider remedy. Our general practice with
previous school finance decisions has been to retain jurisdiction and continue to stay the
orders of the panel and our own mandate to provide the legislature an opportunity to
bring the state's education financing system into compliance with Article 6 of the Kansas

8
Constitution. See Gannon III, 304 Kan. 490; Gannon II, 303 Kan. at 741-42; Montoy v.
State, 278 Kan. 769, 775, 102 P.3d 1160 (2005) (Montoy II).

We continue that practice today because the legislature intended for CLASS only
to be effective until June 30, 2017, and also because the State has twice demonstrated its
ability to cure constitutional infirmities recognized by this court in the state's K-12 school
finance system. See Montoy v. State, 282 Kan. 9, 24-25, 138 P.3d 755 (2006) (Montoy
IV) (legislature's efforts in 2005 and 2006 constitute substantial compliance with prior
orders; appeal dismissed); Sup. Ct. Order, Case No. 113,267 (June 28, 2016) (finding
legislation cured equity constitutional infirmities in Gannon litigation).

Once a new financing system is enacted, the State will have to satisfactorily
demonstrate to this court by June 30, 2017, that its proposed remedy is reasonably
calculated to address the constitutional violations identified, as well as comports with
previously identified constitutional mandates such as equity. See Gannon II, 303 Kan. at
743 ("[A]ny other funding system it enacts must be demonstrated to be capable of
meeting the equity requirements of Article 6—while not running afoul of the adequacy
requirement.").

For those purposes, the State will bear the burden of establishing such compliance
and explaining its rationales for the choices made to achieve it. See Gannon II, 303 Kan.
at 709 (party asserting compliance with court decision ordering remedial action bears
burden of establishing that compliance).

Finally, we emphasize that the Gannon I test for adequacy is one reflecting
minimal standards. Gannon I, 298 Kan. at 1170. Once they are satisfied, the requirements
of Article 6 are satisfied and the court's role ends. See 298 Kan. at 1167. Whether the
legislature chooses to exceed these minimal standards is up to that deliberative body and
ultimately the people of Kansas who elect those legislators. See Gannon I, 298 Kan.
9
1158-1161 (recognizing that under Kansas Constitution many entities play roles in public
education in Kansas and describing their roles and interplay); see also U.S.D. No. 229,
256 Kan. at 254 ("The issue for judicial determination is whether the Act satisfies
[Article 6, sec. 6], not whether the level of finance is optimal or the best policy.").

HISTORY AFTER REMAND

An extensive discussion of the history and factual background of this case, along
with detailed explanations of the funding system for K-12 public education in Kansas,
can be found in our three previous Gannon decisions. Gannon I, 298 Kan. at 1112-18;
Gannon II, 303 Kan. at 686-98; Gannon III, 304 Kan. at 494-99. Here, we limit our
discussion to a short overview relevant to the issues we are about to address.

Panel's actions on remand

After receiving this case on remand in March 2014, the panel requested certain
information from the State, including updated student achievement statistics from the
Kansas State Department of Education (KSDE). The panel also invited proffers regarding
any evidence or information either party thought would be relevant to the panel's
reconsideration of the issue of adequacy in light of Gannon I. The State complied with
the request for the KSDE information but with objection. Specifically, the State
expressed concern about the possibility of the panel ruling without the opportunity to
introduce additional evidence on the adequacy issue such as updated data on the
statewide district budgets.

The panel expressly declined to admit new evidence. It looked through the
evidentiary proffers provided by the State "for facts or issues that would alter [its]
original judgment . . . and found none would be of material, controlling significance." But

10
it did agree to take judicial notice of any new information if it found such information
was not "reasonably subject to dispute."

The panel eventually issued three separate rulings regarding adequacy. The first
two rulings—a 117-page order of December 30, 2014, and a shorter one of March 11,
2015—resolved that issue for the SDFQPA. The panel ultimately concluded through a
declaratory judgment that this system, including the recent changes contained in 2014
Senate Substitute for House Bill No. 2506 (H.B. 2506), L. 2014, ch. 93, sec. 1 et seq.,
was unconstitutionally inadequate under the Rose-based test we adopted in Gannon I.
The panel held its structure was basically sound but its implementation, e.g., actual
funding of the formula, was not.

After these first two rulings were issued, in March 2015 the legislature passed, and
the governor signed, House Substitute for Senate Bill No. 7, which instituted CLASS. Of
relevance to this appeal, the legislation repealed the more than 20-year-old SDFQPA and
its calculation of student weightings in the state aid funding formula. It was replaced with
a 2-year block grant program expiring in June 2017 in which funding provided by the
State for fiscal years 2016 and 2017 was essentially frozen at the SDFQPA-computed
levels of fiscal year 2015—the 2014-2015 school year. Gannon II, 303 Kan. at 694.

The plaintiffs responded by challenging this new law on the same basic adequacy
grounds as their attack on the SDFQPA. Among other things, they argued CLASS was
merely an extension of the repealed, underfunded, and unconstitutional SDFQPA.

In the panel's third ruling regarding adequacy—an 84-page decision dated June 26,
2015—it held that CLASS "does nothing to alleviate the unconstitutional inadequacy of
funding as expressed in our Opinions but, rather, exacerbates it." The panel was
particularly concerned with changes CLASS made to the frequency of calculating
specific student populations for purposes of determining special weightings that affect the
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overall funding of particular districts. Because CLASS moved funding into a 2-year
block grant, any subsequent increase or decrease in student populations—in general or by
what the parties characterize as demographic "subgroups," e.g., African American,
Hispanic, English Language Learners (ELL), Disabled Students (also referred to as
students with disabilities), and students receiving free and reduced lunches—would not
lead to corresponding annual changes in funding. So the panel modified its December 30,
2014, declaratory judgment to order the State to implement the SDFQPA's former
funding weightings in the current school year in which a distribution was to be made
instead of the block grant funding of CLASS. See Gannon II, 303 Kan. 696.

Despite finding CLASS unconstitutional, the panel did not strike the block grant
funding element. It believed its other remedial orders, including a temporary restraining
order to prevent the State from implementing changes to the annual weighting
calculations as structured under the SDFQPA, would "mitigate the urgency for giving any
immediate effect to, or remedy in regard to, [its] ruling in regard to [CLASS.]" Four days
later, on June 30, 2015, we stayed the panel's orders pending appeal to this court.

Thereafter, additional briefing on equity was conducted and adequacy's was
scheduled for August 2016, with oral arguments to be heard in September. To date,
approximately 850 pages of briefs—not counting their voluminous appendices—have
been filed on the adequacy issue by the parties. The briefs contain numerous issues,
arguments, and subpoints which we have consolidated by necessity.

We have jurisdiction under K.S.A. 2016 Supp. 60-2102(b)(1) (jurisdiction of
supreme court may be invoked by appeal as a matter of right from a preliminary or final
decision in which a statute has been held unconstitutional under Article 6 of the Kansas
Constitution).

More facts will be added where necessary in each section of our analysis below.
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 ANALYSIS

JURISDICTION AND JUSTICIABILITY

Issue 1: The panel had jurisdiction to adjudicate the constitutionality of CLASS.

Plaintiffs asked the panel to enjoin CLASS's operation because it allegedly failed
to remedy SDFQPA's inadequacies as identified in the panel's decision of December
2014 and as confirmed in its order of March 2015. Although CLASS was passed after our
March 2014 remand in Gannon I, the panel determined it had jurisdiction to consider
CLASS's constitutionality: "Clearly, the overall issue of adequacy, as remanded to us, is
ready for review, including the issue of House Substitute for Senate Bill No. 7's . . .
constitutional funding adequacy or inadequacy and its means for distribution of
constitutionally needed funds." It eventually concluded CLASS violated both the equity
and adequacy requirements of Article 6.

The State now challenges the panel's exercise of jurisdiction over CLASS without
first requiring the plaintiffs to amend their pleadings and introduce evidence in support of
their challenge to the new law. It alleges that by declaring CLASS violated the adequacy
component of Article 6, the panel stepped outside of its jurisdiction and denied the State
due process. The State argues that as a result, the panel acted improperly and its rulings
on this issue therefore must be reversed.

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Standard of review

"The existence of jurisdiction is a question of law over which this court's scope of
review is unlimited." Schmidtlien Elec., Inc. v. Greathouse, 278 Kan. 810, 830, 104 P.3d
378 (2005).

Discussion

We rejected a similar jurisdictional argument by the State 1 year ago in Gannon II.
There, the State contended the panel had exceeded the scope of our March 2014 mandate
on remand when it held CLASS was inequitable and thus unconstitutional. The State
argued the panel was without authority to consider CLASS's constitutionality because,
among other things, CLASS's funding element was different than the SDFQPA's—which
the panel had held unconstitutional. 303 Kan. at 705.

We rejected this argument with an analysis applicable to the State's present
contention:

"We . . . disagree with the State that the panel lacked authority to consider these
aid provisions under CLASS because they represent 'a substantial shift in Kansas'
financing of K12 public education.' The State quotes at length from our opinion in
Montoy [IV] . . . where we refused to review the constitutionality of remedial legislation
that had 'so fundamentally altered the school funding formula that the school finance
formula that was at issue in this case no longer exists.'

"We cannot make a similar 'substantial shift' observation about CLASS." Gannon
II, 303 Kan. at 706 (quoting Montoy IV, 282 Kan. at 25).

Indeed, we determined "[i]n sum, the legislature essentially created CLASS as a
mere extension of the fiscal year 2015 funding system [SDFQPA]. It is not a substantial

14
shift in the way funds are distributed for public education." Gannon II, 303 Kan. at 706.
As additional support, we observed we were "not the only appellate court to reach this
conclusion." 303 Kan. at 706. We quoted the 10th Circuit Court of Appeals in a federal
lawsuit involving CLASS:

"'Despite the changes to Kansas' system of school financing, the core elements
challenged by plaintiffs remain. Although the SDFQPA formula has been replaced by
block grants for the next two years, those grants are calculated primarily using the now-
repealed SDFQPA formula.'" 303 Kan. at 706-07 (quoting Petrella v. Brownback, 787
F.3d 1242, 1256 [10th Cir. 2015]).

Speaking practically, there is no need to require the plaintiffs to formally amend
their pleadings and introduce evidence in support of their challenge to the new law—
when it is basically an extension of the prior law for which substantial evidence had been
received and the State's similar jurisdictional argument had already been analyzed and
rejected by this court.

Even if we do not embrace practicality to reject the State's argument, we
additionally note that other Kansas school finance decisions demonstrate a court's
continuing jurisdiction over legislation passed subsequent to, or as a remedy for, an order
declaring the preceding law unconstitutional. In Montoy II, this court had declared a prior
version of the SDFQPA unconstitutional and retained jurisdiction to allow the legislature
an opportunity to respond with remedial legislation. Montoy v. State, 279 Kan. 817, 819,
112 P.3d 923 (2005) (Montoy III) (describing Montoy II). Lawmakers responded by
amending the act, which was returned to this court for review. The State then argued that
the new law was not properly before this court because the prior decisions addressed
legislation which no longer existed. We disagreed with this reasoning. 279 Kan. at 825.

Here, on December 30, 2014, the panel issued a declaratory judgment holding the
funding under the SDFQPA unconstitutionally inadequate. The State's own brief argues
15
CLASS was passed in response to this ruling less than 3 months later. As a result, the
panel appropriately considered whether CLASS substantially changed K-12 funding to
render the case and its order moot—or, if not, whether CLASS remedied the inadequacies
the panel previously identified. Both the December 2014 and June 2015 judgments at
their heart declared legislative funding inadequate, which resulted in unconstitutionality,
as confirmed by the June 2015 ruling: "SB 7, by its failure to provide funding consistent
with the needs found in our Opinion of December 30, 2014, and by freezing the
inadequacy we found existing through FY 2015 for FY 2016 and FY 2017, also stands,
unquestionably, and unequivocally, as constitutionally inadequate in its funding."
(Emphasis added.)

Based on the authorities cited above, we conclude the panel had jurisdiction to
consider whether CLASS was constitutional, e.g., conformed to its previous decisions.

Issue 2: The legislature's compliance with Article 6 is a justiciable issue.

In Gannon I, we held that whether the legislature has made suitable provision for
the finance of the State's educational interests under Article 6 was not a political question
and was therefore justiciable. En route to that conclusion, we expressly rejected the
State's specific argument under Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d
663 (1962), that the language of Article 6 lacked judicially discoverable and manageable
standards for resolving the substantive issues. Gannon v. State, 298 Kan. 1107, 1161, 319
P.3d 1196 (2014) (Gannon I). Later in Gannon I we adopted the capacities first
articulated by the Kentucky Supreme Court in Rose v. Council for Better Educ., Inc., 790
S.W.2d 186, 212 (Ky. 1989), as the minimal educational adequacy requirements of
Article 6. 298 Kan. at 1170.

In each of its three briefs in the present adequacy appeal, the State renews its
Gannon I contention that its duty under Article 6 is beyond the capacity or role of the
16
courts to enforce. And it now adds the particular contention that the Rose standards
themselves are "not judicially manageable" and are "extremely nebulous and vague." In
other words, they demonstrate the existence of a nonjusticiable political question.

Standard of review

"[W]hether a claim is nonjusticiable specifically because it may be a political
question is an issue of law." Gannon I, 298 Kan. at 1136-37.

Discussion

In Gannon I we performed an extensive analysis to address the State's argument
that the legislature's compliance with its Article 6 duty was not justiciable because it was
a political question. 298 Kan. at 1134-61. We thoroughly considered the State's
contentions under four of the six justiciability factors identified in Baker v. Carr, 369
U.S. 186, especially whether judicially discoverable and manageable standards exist for
resolving the substantive issue, e.g., equity. 298 Kan. at 1139-61. Foreshadowing its
present contention, the State pointedly argued that '"suitable provision for finance' is
amorphous, and 'suitable' is 'extremely vague.'" 298 Kan. at 1149. We rejected this
argument. 298 Kan. at 1149-56.

We cited, and agreed with, the majority of supreme courts which held their state
constitution's education article presented justiciable issues. We observed

"that courts are frequently called upon, and adept at, defining and applying various,
perhaps imprecise, constitutional standards. The Texas Supreme Court in Neeley [v. West
Orange-Cove, 176 S.W.3d 746 (Tex. 2005)] observed that disagreements about the
meaning of the state constitutional language 'are not unique to the [state's education
clause]; they persist as to the meanings and application of due course of law, equal
protection, and many other constitutional provisions.'" 298 Kan. at 1155.

17
 We further noted that judicial determinations are often required for whether a
punishment is '''cruel and unusual''' and for defining and discerning the difference
between '''probable cause''' and "'reasonable suspicion.'" 298 Kan. at 1155.

We also pointed to our state's own history in school finance litigation. We declared
that our court would not previously have established procedures for the trial court and
counsel to follow when handling any "'suitable provision'" for finance claims if indeed
"there were no manageable standards for the courts to apply." 298 Kan. at 1150.

Despite our rejecting the State's argument 3 years ago in this litigation that the
legislature's duty created by the language of Article 6 did not lend itself to judicial
management and enforcement and thus was nonjusticiable, it now argues that the seven,
more detailed standards of Rose are "extremely nebulous and vague" and thus cannot be
judicially manageable. The State's primary support is Londonderry Sch. Dist. v. State,
154 N.H. 153, 907 A.2d 988 (2006).

At the outset, we observe the law of the case doctrine readily can serve as a basis
for us to refuse to review the core of this particular issue a second time. As the State itself
points out elsewhere in its brief in support of one of its arguments: This "doctrine
'promotes the finality and the efficiency of the judicial process'—two virtues that are
particularly important in this ongoing litigation—by eliminating 'indefinite relitigation of
the same issue.' State v. Collier, 263 Kan. 629, Syl. ¶ 2, 952 P.2d 1326 (1998)."

Even if we do not apply the law of the case doctrine to refuse review of the State's
current twist on the political question issue that we resolved in Gannon I, we additionally
note, "The Rose court constitutional standards have been remarkably paralleled since
2005 by the Kansas Legislature's express educational goals . . . ." Gannon I, 298 Kan. at
1166; see K.S.A. 2013 Supp. 72-1127(c). And shortly after this court issued its decision
18
in Gannon I, the Kansas Legislature amended 72-1127 effective May 1, 2014, so that its
express education goals were made identical to the seven goals set out by the Rose court.
Of even greater application to the State's argument, we observe the legislature has
expressly required the State Board of Education (SBE) to develop curriculum to meet
those seven goals. The statute provides: "Subjects and areas of instruction shall be
designed by the state board of education to achieve the goal established by the legislature
of providing each and every child with at least the following capacities [the Rose
standards]." K.S.A. 2016 Supp. 72-1127(c). And these SBE-designed subjects and areas
of instruction are required to be taught in every accredited school in the state. K.S.A.
2016 Supp. 72-1127(a).

With this language in effect for the last 12 years, the legislature itself necessarily
acknowledges that the SBE—which the legislature has entrusted with developing
curriculum for Kansas public school students—is capable of understanding, measuring,
and implementing the Rose educational goals in order to meet its important statutory
duty. This legislative acknowledgment greatly undermines the State's argument that the
standards are not judicially discoverable or manageable because they are extremely
nebulous and vague. Cf. City of Wichita v. Sealpak Co., 279 Kan. 799, 806, 112 P.3d 125
(2005) (Admissions against interest made by a party are the strongest kind of evidence
and override other factors.). Further undermining the State's allegation of vague and
nebulous Rose standards is CLASS's more recent language designating these standards,
as codified in K.S.A. 2016 Supp. 72-1127, as one of the legislature's "guiding principles
for the development of subsequent legislation for the finance of elementary and
secondary public education." See L. 2015, ch. 4, sec. 4(c)(4).

Despite the State's apparent conflicting positions—and the law of the case
doctrine—we also will briefly address Londonderry. The State points out that the New
Hampshire Supreme Court determined the state legislature failed to properly define an
adequate education but continued to grant deference and refused to substitute its own
19
definition of "adequate" in lieu of the legislature's. But Londonderry cannot stand for the
proposition that the Rose standards themselves are judicially unmanageable because the
New Hampshire Supreme Court previously had adopted them as its state's minimum
educational requirements in the Claremont decisions. See Claremont School Dist. v.
Governor, 142 N.H. 462, 703 A.2d 1353 (1997) (Claremont II); see also Claremont
School Dist. v. Governor, 138 N.H. 183, 635 A.2d 1375 (1993) (Claremont I); Claremont
School Dist. v. Governor, 144 N.H. 210, 744 A.2d 1107 (1999) (Claremont III); and
Claremont School Dist. v. Governor, 147 N.H. 499, 794 A.2d 744 (2002) (Claremont IV).

Instead, the Londonderry court's main complaint was the legislature's failure to
take any steps in enunciating a system that would meet the criteria set out in Rose. 154
N.H. at 161. By failing to do so, the court warned, "the legislature create[d] the potential
for a situation in which a superior court judge, or a special master appointed by th[e]
court, [would] be required to decide what is to be taught in the public schools in order to
provide the opportunity to acquire [the Rose standards]." Londonderry, 154 N.H. at 160.

In other words, if—as the State alleges—the Rose standards themselves were
indeed "judicially unmanageable," the Londonderry court certainly would not have
warned the legislature that a judge would manage them, i.e., decide what is to be taught
in order to provide the opportunity to acquire the skills and knowledge they describe. Nor
would the court have concluded its decision as follows: "[T]he judiciary has a
responsibility to ensure that constitutional rights not be hollowed out and, in the absence
of action by other branches, a judicial remedy is not only appropriate but essential.
Petition of Below, 151 N.H. 135, 855 A.2d 459 (2004). We urge the legislature to act."
154 N.H. at 163. Instead, the Londonderry court simply would have declared the question
to be political and nonjusticiable and dismissed the case. See Gannon I, 298 Kan. at 1137
(acknowledging dismissal of case as nonjusticiable is appropriate when at least one of the
Baker elements or factors "'is inextricable from the case at bar'").

20
 In summary, we continue to hold that the legislature's compliance with its Article
6 duty is a justiciable issue. The State has failed to show why the law of the case doctrine
does not bar our review of justiciability. And even if the doctrine did not serve as a bar,
the State has failed to show that Article 6's requirements are rendered less judicially
manageable because we have adopted the seven Rose standards as that article's minimum
requirements—much as the legislature has adopted those same standards as a guiding
principle for its efforts in developing public school finance mechanisms to replace
CLASS after it expires.

PROCEDURAL ISSUES

Issue 3: The panel did not abuse its discretion in refusing to reopen the record on
remand.

After our March 2014 remand to the panel per our Gannon I decision, the
plaintiffs requested the panel rule on the adequacy issue based on the existing trial record
of 21,000 pages. The State opposed this procedure and argued the panel should allow
new evidence.

The panel invited evidentiary proffers from both sides and heard arguments on
whether to reopen the record. The panel eventually concluded it would limit its review to
the existing trial record, with the exception of taking judicial notice of certain updated
data on statewide district budgets and student performance statistics.

The State objected and continued to request that the panel allow new evidence on
adequacy and proffered certain documents it wanted the panel to consider. In general, the
State provided statistical information regarding past and current funding—including the
levels of federal monies, local option budget (LOB) funds, and contributions to Kansas
Public Employees Retirement System (KPERS). The State also provided information on
21
districts' compliance with accreditation standards, as well as how certain state programs
addressed the Rose standards specifically.

The State additionally attached state-wide and district specific statistics on
proficiency levels in various subjects. This included a breakdown of student demographic
categories the parties refer to as subgroups—as well as their relative achievement
measurements. The State also asked the panel to consider data for comparing national
student success rates with Kansas students' achievement through standardized
measurements, e.g., the ACT, SAT, and National Assessment of Educational Progress
(NAEP).

The panel declared in its December 2014 decision that all the State's new
submissions were "diligently searched . . . for facts or issues that would alter our original
[January 2013] judgment," but concluded none were of significance. Nevertheless, the
State argues the panel erred in ruling on the funding system's adequacy without admitting
the current data into evidence. Because the plaintiffs sought injunctive relief, the State
argues the panel was required to look to the current and future state of affairs instead of
relying on the prior record. See, e.g., Frizell v. Bindley, 144 Kan. 84, 94, 58 P.2d 95
(1936) (wrongs already committed cannot be corrected or prevented by injunction).
According to the State, because the panel relied primarily on old information, the panel
erred when it later declared CLASS unconstitutional.

The State also argues that the panel should not have taken judicial notice of facts
or information without allowing the parties to contest them. In particular, it argues
KSDE's statistics on Kansas students' proficiency scores for 2012-2013—the most recent
data then available—was inappropriate for judicial notice and consideration because the
validity of that school year's standardized testing results was in dispute.

22
Standard of review

Whether a trial court erred in refusing to permit a party to reopen a case to
introduce additional evidence is reviewed for abuse of discretion. See generally
Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 306, 520 P.2d 1262 (1974)
(citing cases). Our abuse of discretion standard is well-established:

"Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would take the view adopted by the trial court; (2) based on
an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3)
based on an error of fact, i.e., substantial competent evidence does not support a factual
finding on which a prerequisite conclusion of law or the exercise of discretion is based."
State v. Davisson, 303 Kan. 1062, 1065, 370 P.3d 423 (2016) (citing State v. Beaman,
295 Kan. 853, 865, 286 P.3d 876 [2012]).

The party asserting an abuse of discretion bears the burden of establishing such
abuse. State v. Corbin, 305 Kan. 619, 622, 386 P.3d 513 (2016). The State does not
specify which of the three categories of judicial discretion abuse it alleges. But it appears
to argue that no reasonable person would have agreed with the panel.

Discussion

The State correctly asserts that injunctive relief must address future action or
remedy an ongoing wrong—not "wrongs already committed." See Andeel v. Woods, 174
Kan. 556, 559, 258 P.2d 285 (1953). But it incorrectly asserts that the panel ignored this
well-known judicial tenet. The panel stated it considered both the existing record as well
as later legislation in determining that the inadequacies in the state's K-12 financing
system remained. While it mainly reviewed the existing record, it did take judicial notice
of public information regarding recent funding levels as well as student performance
data. Its original December 2014 declaratory judgment and temporary restraining order in

23
June 2015 were clearly aimed at remedying what it found to be present and ongoing
inadequacies in the SDFQPA and then in CLASS.

Accordingly, the determinative question is whether the panel abused its discretion
by refusing the State's request to reopen the record on remand. See Westamerica
Securities, 214 Kan. at 306.

Here, the panel invited proffers of any evidence either party deemed relevant or
appropriate for consideration along with requesting updates on the state's K-12 funding
levels and other data. The State accepted this invitation and proffered the evidence it
wished to introduce into the record. The panel was clear in its rulings that it reviewed and
considered the State's proffers, but found them to be unpersuasive. The panel's decision
dated December 30, 2014, stated:

"We diligently searched the State's proffers for facts or issues that would alter our
original judgment [January 2013] or change the course of the one we now issue
[December 2014] and found none would be of material, controlling significance. No
testimony was proffered nor can we perceive of any but a pure recantation of prior
testimony that would cause us to consider any had it been offered." (Emphasis added.)

And in its order dated March 11, 2015, the panel reiterated it had thoroughly reviewed
the State's proffers—but also noted the State appeared to additionally rely upon some
nonproffered evidence:

"The State made its proffers over objection, but yet now apparently claims some
reservoir of undisclosed evidence, yet still not proffered, that needs to be considered. We
reject this latter overture as inconsistent with our directive and find even the facts now
listed in its motion to alter or amend present nothing unknown or the objective or premise
upon which they rest not previously thoroughly considered. We reviewed fully all the
State's submissions and found none would aid, alter, or change our prior opinions."
(Emphasis added.)
24
To the extent the panel also considered the proffers unpersuasive because they merely
contained information that was cumulative to what was already in evidence, we observe
an exclusion on this basis would also be reviewed for an abuse of discretion. State v.
Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006) (citing State v. Lee, 266 Kan. 804, 813,
977 P.2d 263 ([1999]).

The data and assertions in the State's proposed findings of fact and conclusions of
law to the panel after remand at most simply supported the State's original proposed
findings of fact and conclusions of law with more recent data. But the purpose of this
information—supporting the State's defense—had not changed from the time of trial.

Most important, the panel was able to determine how, if at all, the updated
information would influence its decision on adequacy because it reviewed the State's
proffers. After the State proffered its evidence, the plaintiffs filed a pleading stating they
had "no objection or response to the information presented." Nor did they contest the
accuracy of the State's submissions. The panel, as it stated in its orders, then "reviewed
fully" the submissions and found no facts—or premise upon which they rested—it had
"not previously thoroughly considered." So we cannot say no reasonable person would
have agreed with the panel's decision refusing to reopen the record. Davisson, 303 Kan.
at 1065.

As for the State's additional complaint that the panel improperly took judicial
notice of information that was subject to dispute without allowing the parties to introduce
similar evidence in support or opposition, it specifically complains about the panel's
consideration of the proficiency data or "report card" compiled by the KSDE for school
year 2012-2013. The State argues that because KSDE considered the results of these
standardized tests an "anomaly," this information was in dispute and thus improperly
considered by the panel. It points out that the panel eventually incorporated these
25
anomalous decreases in student performance to support its December 30, 2014, decision
which held that student subgroup performance helped show the inadequacy of Kansas' K-
12 education funding system. Accordingly, the State again appears to allege an abuse of
the panel's discretion in the admission of these results into evidence. See Catholic
Housing Services, Inc. v. State Dept. of SRS, 256 Kan. 470, 478, 886 P.2d 835 (1994)
(judicial notice is a rule of evidence).

But this particular evidence was not in "dispute" as defined by Kansas law. The
applicable statute, K.S.A. 60-409(b), states in relevant part: "Judicial notice may be
taken without request by a party, of . . . (4) specific facts and propositions of generalized
knowledge which are capable of immediate and accurate determination by resort to easily
accessible sources of indisputable accuracy." (Emphasis added.) The State does not
dispute, however, that the test results themselves were accurately recorded or readily
available to the panel through the KSDE. Rather, the State simply complains that the
panel should not have considered them because the scores themselves did not accurately
reflect student achievement.

In its proposed findings of fact and conclusions of law, the State provided the
panel with KSDE's cautionary statement explaining the tests administered were not
aligned with instruction of a new statewide curriculum:

"As Kansas continues its transition to higher education standards . . . many schools
experienced a decline in the results of their students' latest state assessment scores. While
this is never a desired outcome, in a time of transition it is certainly not altogether
unexpected. . . . Because the new standards assessment was not available for the 2012-13
assessment period, students were assessed using the existing testing tool which is no
longer aligned with the new instruction. As such, we caution the use of recent assessment
scores as a true indication of the student's progress." (Emphasis added.)

26
 The panel readily acknowledged the State's objection to its use of the 2012-2013
test results. After its review of this data which showed "drops in all categories," the panel
also considered the basis of the objection, i.e., the proffered cautionary KSDE statements:

"We recognize, as proffered by the State, these 2012-2013 statistics were possibly
affected by the change in nomenclature and the approach to the proficiency
measures. . . . Nevertheless, the tests noted were still given, and minimally, these
statistics provide no evidence of student progress and no evidence has been proffered to
us otherwise." (Emphasis added.)

Moreover, the panel's procedure comports with K.S.A. 60-412 which governs
judicial notice in proceedings subsequent to trial. That statute provides: "A judge . . .
taking judicial notice [under this act] of matter not theretofore so noticed in the action
shall afford the parties reasonable opportunity to present information relevant to the
propriety of taking such judicial notice and to the tenor of the matter to be noticed."
K.S.A. 60-412(d). The panel afforded the parties, and the State accepted, the opportunity
to provide "any further evidence or considerations thought appropriate" after the panel's
request regarding the KSDE information. The State provided proffers outlining its
concerns about the 2012-2013 test results—which the panel duly considered.

At their core, the State's complaints essentially go to the weight of this KSDE
evidence rather than its admissibility through judicial notice. The State does not contest
the authenticity of the results of the standardized tests themselves—with good reason,
because the fact that these scores were recorded and later published by KSDE is not
subject to reasonable dispute under K.S.A. 60-409(b)(4). See Harris v. Shanahan, 192
Kan. 183, 207, 387 P.2d 771 (1963) (supreme court took judicial notice of population
statistics contained in official publications of Kansas State Department of Agriculture and
Secretary of State and "any other public official or bureaus of the state"); see also Popp v.
Motor Vehicle Department, 211 Kan. 763, 768, 508 P.2d 991 (1973) (court may take
judicial notice of statistics compiled by the safety department of the highway commission
27
of the State of Kansas revealing the number of accidents caused by drunk driving in
particular year). KSDE is obviously such a state department. See K.S.A. 72-7701
(creating State Department of Education and placing it under administrative control of the
commissioner of education as directed by law and by State Board of Education).

Indeed, in the lengthy appendices to its briefs and at oral arguments, the State
agreed that this court could judicially notice the current reports and publications of the
KSDE that were publicly available, particularly those concerning school year 2014-2015
that purported to support its own argument. See K.S.A. 60-412(c) ("The reviewing court
in its discretion may take judicial notice of any matter specified in K.S.A. 60-409
whether or not judicially noticed by the judge."); Harris, 192 Kan. at 207 (appellate
judicial notice of facts not noticed by trial court).

In conclusion, this court's remand order entirely left for the panel to decide
whether the record should be reopened to accept additional evidence. See Gannon v.
State, 298 Kan. 1107, 1171, 319 P.3d 1196 (2014) (Gannon I) ("We express no opinion
whether the panel needs to reopen the record to make its adequacy determination. That
decision is best left to the panel as the factfinder."). Its refusal to do so is reviewed for
abuse of discretion. And we hold under the circumstances presented that the panel's
refusal to open the record and formally admit additional evidence proffered by the
State—all of which the panel thoroughly reviewed and found unpersuasive—was not
such an abuse. See Westamerica Securities, 214 Kan. at 306. Nor was it error for the
panel to take judicial notice of KSDE's published student test results for 2012-2013. See
Harris, 192 Kan. at 207.

28
Issue 4: The panel's memorandum and order satisfied the requirements of K.S.A. 2016
Supp. 60-252(a).

The State argues that our Gannon I decision ordering remand, as well as K.S.A.
2016 Supp. 60-252(a), required the panel to separately set out findings of fact in its
December 2014 ruling—which the panel failed to do.

In the panel's pre-Gannon I decision dated January 11, 2013, it expressly adopted
all the plaintiffs' proposed findings of fact and conclusions of law, subject to certain
amendments and omissions, and clearly included them in its 250-page decision. The
panel distinguished these findings from the rest of its decision by their enumeration and
typesetting. The numerous findings and conclusions cited to a wide range of submitted
evidence with citations to the record that included such things as prior testimony,
evaluations and conclusions of cost studies, prior funding levels of K-12 education,
expert testimony, and current district budget amounts.

The panel's decisions after remand by Gannon I differed slightly. In its December
2014 decision, the panel expressly declined to adopt either party's latest proposed
findings of fact or conclusions of law. But it expressly adopted its own January 11, 2013,
findings of fact and conclusions of law with certain amendments. Instead of following
that decision's format by distinctly making additional specific findings, however, the
panel simply cited to various points of evidence throughout its 2014 decision in support
of its findings and conclusions.

Its March 2015 Order further specified the parameters of its findings:

"[T]he record upon which our Order on Remand [December 2014] was premised was
confined to the original record on appeal and based on those facts and exhibits identified
in our January 11, 2013 Opinion and such additional facts or matters subject of judicial

29
 notice as are explicitly identified in our December, 30, 2014 Memorandum Opinion and
Order on Remand." (Emphasis added.)

The panel made clear that it readopted the findings of fact from its January 2013
opinion and incorporated "what [it] found without restatement[.]" In addition to those
previous panel findings, it essentially rejected all facts inconsistent with its January 2013
and December 2014 opinions, as it further explained in its March 2015 order:

"Throughout both Opinions [January 2013 and December 2014] we identified the certain
facts or exhibits we deemed controlling and that would exemplify our acceptance or
rejection of the premise or an issue raised and discussed the efficacy of any conflict or
premise toward which they were asserted. We feel no need to go further than this either
in the identification of supporting facts and exhibits or their discussion." (Emphasis
added.)

The panel's March 2015 order elaborated on this theme:

"This case was simply not a case where it would be at all helpful to list the
plethora of separately proffered facts and exhibits one by one followed by either a plus or
minus representing whether it was true or false or relevant or not relevant. We harbor no
doubt that the parties know why they did or did not prevail on the issues raised."
(Emphasis added.)

The panel assured the parties that "this court looked at all the facts and either
identified or discussed, or identified and discussed, only those necessary to the premise
and finding accepted or rejected by us, pushing all cumulative or not controlling facts
aside."

30
Standard of review

The State's objections require this court to determine a trial court's duties under
K.S.A. 2016 Supp. 60-252 when rendering a judgment. "Interpretation of a statute is a
question of law, and an appellate court's review is unlimited." Zimmerman v. Board of
Wabaunsee County Comm'rs, 289 Kan. 926, Syl. ¶ 1, 218 P.3d 400 (2009).

Discussion

The statute upon which the State relies, K.S.A. 2016 Supp. 60-252(a), states:

"Findings and conclusions. (1) In general. In an action tried on the facts without
a jury or with an advisory jury or upon entering summary judgment, the court must find
the facts specially and state its conclusions of law separately. The findings and
conclusions may be stated on the record after the close of evidence, or may appear in an
opinion or a memorandum of decision filed by the court. Judgment must be entered under
K.S.A. 60-258, and amendments thereto."

In explaining the statutory purpose, this court has stated that "'the rules requiring
expression of controlling findings of fact [citation omitted] and controlling principles of
law [citation omitted] are designed as an aid to the integrity of the decision.'" Mies v.
Mies, 217 Kan. 269, 274, 535 P.2d 432 (1975). Additionally, "[t]he requirements of
K.S.A. 60-252(a) . . . are for the benefit of this court in facilitating appellate review."
Henrickson v. Drotts, 219 Kan. 435, 441, 548 P.2d 465 (1976). Accordingly, "'[w]here
the findings and conclusions of the trial court are inadequate to permit meaningful
appellate review, [there is] no alternative but to remand the case for new [or additional]
findings and conclusions.'" Baker University v. K.S.C. of Pittsburg, 222 Kan. 245, 254,
564 P.2d 472 (1977).

31
 Consistent with these purposes, this court has said:

"The findings required by K.S.A. 60-252(a) should be sufficient to resolve the
issues, and in addition they should be adequate to advise the parties, as well as the
appellate court, of the reasons for the decision and the standards applied by the court
which governed its determination and persuaded it to arrive at the decision." Andrews v.
Board of County Commissioners, 207 Kan. 548, 555, 485 P.2d 1260 (1971).

Stated another way, "the court's findings and conclusions should reflect the factual
determining and reasoning processes through which the decision has actually been
reached." Duffin v. Patrick, 212 Kan. 772, 774, 512 P.2d 442 (1973) (citing 9 Wright and
Miller, Federal Practice and Procedure § 2578).

The panel's first decision on remand of December 30, 2014, is 117 pages long—
excluding its attached appendix. In it, the panel reviews this court's remand order and the
procedural history of the case before discussing the facts and its resultant conclusions. It
outlines its legal conclusions based on the precedent of Kansas school finance cases, as
well as on the basis of facts from the record which it cites throughout.

Additionally, the panel expressly readopted specific and enumerated factual
findings contained in its January 2013 decision—"[pages] 55-190 by fully incorporating
what we found without restatement here." Kansas appellate courts have held such
adoptions and incorporations by reference comply with the requirements of K.S.A. 2016
Supp. 60-252(a). In Executive Financial Services, Inc. v. Loyd, 238 Kan. 663, 715 P.2d
376 (1986), the appellants alleged the trial court improperly dismissed their counterclaim
without setting forth specific findings of fact and conclusions of law. In its journal entry,
the trial court had adopted by reference the findings of fact and conclusions of law it
detailed in previous memoranda. This court concluded: "We can find no error in the trial
court's failure to repeat the findings of fact and conclusions of law in its decision . . . ."
238 Kan. at 668. See also In re Adoption of Chance, 4 Kan. App. 2d 576, 581, 609 P.2d
32
232 (1980) (rejecting K.S.A. 60-252[a] [Weeks] challenge to findings and conclusions:
although probate judge "did not specifically adopt the findings of the court in the habeas
corpus proceedings as his own, it is apparent he considered that record and entered his
judgment, at least in part, on the basis of that evidence"). Cf. Taylor v. Kobach, 300 Kan.
731, 737, 334 P.3d 306 (2014) (Incorporation by reference is "'[a] method of making a
secondary document part of a primary document by including in the primary document a
statement that the secondary document should be treated as if it were contained within the
primary one.'") (quoting Black's Law Dictionary 834 (9th ed. 2009).

We conclude the State's concerns are without merit. Particularly given the nature
of the evidence and the expansive record—as of the January 2013 decision, 21,000 pages
after a 16-day bench trial, with subsequent judicial notice of more facts and consideration
of the State's proffers—we find no fault with the panel deciding not to specifically
address all submitted evidence and further lengthen its 117-page decision of December
2014.

Simply put, the State has failed to show that the panel's decision of December
2014 prevents our ability to meaningfully review the panel's findings and conclusions:
They sufficiently reflect the factual determining and reasoning processes through which
the decision had actually been reached. See Duffin, 212 Kan. at 774.

ADEQUACY (ON THE MERITS)

To understand this section's analysis of adequacy under Article 6, Section 6 of the
Kansas Constitution, a more complete historical overview than that provided in the
History After Remand is important. In Gannon I, 298 Kan. at 1112-15, we set forth the
SDFQPA and events leading to the filing of the present suit in 2010. Here they are
summarized and supplemented.

33
U.S.D. No. 229

Since 1992, the SDFQPA had established the formula and mechanism through
which most funds for K-12 public education were obtained by Kansas school districts.
See U.S.D. No. 229 v. State, 256 Kan. 232, 885 P.2d 170 (1994). The formula provided a
fixed amount of funding for each student through "base state aid per pupil," also known
as BSAPP. A district's full-time equivalent enrollment was adjusted by adding various
weightings based on the recognition that the needs of some students require more
resources for their education than others. These included such things as low enrollment,
special education, vocational, bilingual education, and at-risk student weighting factors.
Once a school district's enrollment was adjusted per the weightings, that figure was
multiplied by the BSAPP. The resulting product was the amount of state financial aid to
which the school district was entitled.

Funding for the BSAPP was derived from two sources: local effort and state
financial aid. The majority of school districts' local effort consisted of property tax funds,
as each district was statutorily required to impose a mill levy—currently 20 mills per
K.S.A. 2016 Supp. 72-6470—upon taxable tangible property in its territory. Because
property values vary widely throughout the state, the amount of money each district could
raise by the required mill levy also varied widely. So the State provided additional funds
to less wealthy districts through "general state aid."

If a district's local effort funds equaled its state financial aid entitlements, it
received no additional money from the State, i.e., general state aid. And if a district's
local effort funds exceeded its state financial aid entitlement, the excess was remitted to
the State. For those districts qualifying for general state aid, their amount was what
remained after subtracting their local effort funds from their state financial aid
entitlement.

34
 Local effort and state financial aid—as calculated using BSAPP and
enrollments—comprised most of the funds available for K-12 education. But school
districts could access additional funds in several ways, two of which were previously at
issue in this case in our equity holdings.

First, a local school board could impose an additional mill levy on property in its
district to fund a local option budget (LOB) to augment the funds that were distributed
through the BSAPP. After application of a statutory formula, in order to account for
differences in property wealth among the districts, the less wealthy ones could also
qualify for, and receive from the State, "supplemental general state aid."

Second, a local board could also impose an additional mill levy on property in its
district to fund capital outlay expenses such as purchasing certain equipment. After
application of a statutory formula, the less wealthy districts could also qualify for, and
receive from the State, "school district capital outlay state aid."

Montoy

The structure of the SDFQPA as originally challenged by the Gannon plaintiffs
had been modified in response to our holdings arising from litigation in Montoy v. State.
These are: Montoy v. State, 275 Kan. 145, 62 P.3d 228 (2003) (Montoy I); Montoy v.
State, 278 Kan. 769, 102 P.3d 1160 (2005) (Montoy II); Montoy v. State, 279 Kan. 817,
112 P.3d 923 (2005) (Montoy III); and Montoy v. State, 282 Kan. 9, 138 P.3d 755 (2006)
(Montoy IV).

This litigation acknowledged that the BSAPP when the SDFQPA was first
implemented in 1992 was $3,600. Montoy III, 279 Kan. at 830. The State gradually
increased BSAPP through small yearly increments until it reached $3,890 in 2002. At
that time, the legislature had the results of its commissioned study from Augenblick and
35
Meyers (A & M) for its consideration, which proposed the state implement a BSAPP of
$4,650 for 2001. 279 Kan. at 830. After our decision in Montoy II, the legislature
responded by increasing BSAPP from $3,890 to $4,222 through a $63.3 million increase
in state funding. 279 Kan. at 830.

We found this response to be inadequate. 279 Kan. at 845-46. During a special
session called later that same month, the legislature timely amended the formula and
provided a funding increase totaling $289 million for the 2005-06 school year. Gannon I,
298 Kan. at 1114. This amount represented one-third of the amount proposed by the A &
M study which had been previously disregarded by the State. But, as we explained in
Gannon I, this did not imply that full funding of this study's recommended amount was
required for constitutional compliance. 298 Kan. at 1170.

While Montoy was pending, the legislature directed the Legislative Division of
Post Audit (LPA), to "conduct a professional cost study analysis to estimate the costs of
providing programs and services required by law." K.S.A. 2005 Supp. 46-1131(a). This
included "(1) State statute; and (2) rules and regulations or standards relating to student
performance outcomes adopted by the state board" of education. 46-1131(b). These
statutes included K.S.A. 2005 Supp. 72-1127, which required the SBE to design
performance outcome standards to achieve the educational goals newly established by the
2005 legislature in subsection (c)—goals that were "remarkably parallel" to the Rose
standards. Gannon I, 298 Kan. at 1166-67.

In response to our Montoy III decision as well as the results of the LPA study, in
2006 the State increased education funding by $466.2 million stretching over the
upcoming 3 years which, when combined with the previous increases, totaled $755.6
million. Gannon I, 298 Kan. at 1114. This funding increase included raising the BSAPP
for fiscal year 2007 from $4,257 to $4,316; to $4,374 for fiscal year 2008; and up to
$4,433 for fiscal year 2009. 298 Kan. at 1114.
36
 Given these statutory provisions, we held that the new funding system in place by
that time constituted substantial compliance with our prior orders, so we dismissed the
Montoy litigation. In relinquishing jurisdiction, we recognized that because the State's
new funding provisions constituted a 3-year plan it "may take some time before the full
financial impact of the new legislation [was] known, a factor which would be important
in any consideration of whether it provide[d] constitutionally suitable funding." Montoy
IV, 282 Kan. at 26.

Several years after Montoy was dismissed, the State began making significant cuts
to Kansas' education funding, initially in response to the national economic downturn. In
Fiscal Year 2009 the BSAPP appropriation was reduced from the 2006 legislature's
statutorily specified amount of $4,443 to $4,400. And although the 2009 legislature had
initially established BSAPP at $4,492 for fiscal year 2010 and beyond, the actual
appropriation for fiscal year 2010 was reduced to $4,012.

After Gannon was filed in November 2010, legislative reductions in BSAPP-
calculated spending continued. By fiscal year 2012—July 1, 2011 to June 30, 2012—the
legislature had reduced BSAPP to $3,780. In total, the reduction to education funding
through these BSAPP reductions constituted a loss of more than $511 million to local
districts. Gannon I, 298 Kan. at 1114-15. Based upon this and other evidence, the panel
concluded in its January 2013 decision that the legislature underfunded K-12 public
education between fiscal years 2009 and 2012. 298 Kan. at 1110.

37
Issue 5: The State's public education financing system provided by the legislature for
grades K-12—through structure and implementation—is not reasonably
calculated to have all Kansas public education students meet or exceed the
standards set out in Rose and as presently codified in K.S.A. 2016 Supp. 72-
1127.

Introduction

After remand, the panel concluded that the Kansas financing system currently
provided by the legislature for grades K-12 was not reasonably calculated through
structure and implementation to have all public education students meet or exceed the
Rose standards. The State now argues the panel (1) failed to apply the proper adequacy
test; (2) failed to afford the proper deference to the legislature's policy decisions; (3)
improperly shifted the burden of proof; and (4) reached the wrong conclusion. Subpoints
to its general argument that the panel reached the wrong conclusion on adequacy will be
discussed below.

Standard of review

Whether through structure and implementation the K-12 system is reasonably
calculated to have all public education students meet or exceed the Rose standards
presents a mixed question of fact and law. When an appellate court reviews these mixed
questions, it applies a bifurcated standard of review. Insofar as any of the panel's factual
findings are in dispute, the court applies a substantial competent evidence standard.
"Substantial evidence is such legal and relevant evidence as a reasonable person might
accept as sufficient to support a conclusion." Gannon v. State, 298 Kan. 1107, 1175, 319
P.3d 1196 (2014) (Gannon I).

38
 In determining whether substantial competent evidence supports the district court's
findings, appellate courts must accept as true the evidence and all the reasonable
inferences drawn from the evidence which support the district court's findings and must
disregard any conflicting evidence or other inferences that might be drawn from it.
Gannon I, 298 Kan. at 1175-76 (citing Unruh v. Purina Mills, 289 Kan. 1185, 1195-96,
221 P.3d 1130 [2009]). Accordingly, appellate courts do not reweigh the evidence or
assess the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367
(2014).

The panel's conclusions of law based on those findings are subject to our unlimited
review. 298 Kan. at 1176, 1182. The ultimate determination of whether the legislature is
in compliance with Article 6, § 6(b) of the Kansas Constitution is a question of law. See
State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009) (constitutionality of statutes
presents question of law over which Supreme Court exercises unlimited review).

As further explained below, we hold that the panel's findings of fact are supported
by substantial competent evidence. And we agree with the panel's legal conclusion that
the State has failed the constitutional requirement of adequacy.

Discussion

Threshold determinations

We begin our analysis by recognizing that the legislature has the power—and
duty—to create a school funding system that complies with Article 6 of the Kansas
Constitution. Gannon I, 298 Kan. at 1146 (language of Article 6 both empowers and
obligates the legislature to make suitable provision for finance of the educational interests
of the State). In Gannon I, we explained that Article 6, § 6(b) contained minimum
standards of adequacy which were met when the financing system provided by the
39
legislature for grades K-12—through structure and implementation—is reasonably
calculated to have all Kansas public education students meet or exceed the standards set
out in Rose. 298 Kan. at 1172. The Rose court held that:

"[A] . . . system of education must have as its goal to provide each and every child with at
least the seven following capacities: (i) sufficient oral and written communication skills
to enable students to function in a complex and rapidly changing civilization; (ii)
sufficient knowledge of economic, social, and political systems to enable the student to
make informed choices; (iii) sufficient understanding of governmental processes to
enable the student to understand the issues that affect his or her community, state, and
nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical
wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or
her cultural and historical heritage; (vi) sufficient training or preparation for advanced
training in either academic or vocational fields so as to enable each child to choose and
pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills
to enable public school students to compete favorably with their counterparts in
surrounding states, in academics or in the job market." Rose v. Council for Better Educ.,
Inc., 790 S.W.2d 186, 212 (Ky. 1989).

These standards are presently codified in K.S.A. 2016 Supp. 72-1127.

As a threshold matter, the State argues that in order to properly evaluate the
constitutionality of the K-12 public education system we should apply a test in which we
give the legislature "substantial—indeed, virtually conclusive—deference." In one of its
variations on this overall theme, the State argues we should merely ask whether the
actions it took after Gannon I's release were reasonable and not arbitrary. In another
variation on its theme, it likens our review to a "rational basis" test.

To support the State's argument, it first cites to Morath v. The Texas Taxpayer and
Student Fairness Coalition, 490 S.W.3d 826, 845-46 (2016). There, the Texas Supreme
Court examined the standard of review in its prior school finance decisions and the

40
deference owed to the Texas Legislature in determining the scope of the legislature's duty
to provide "suitable provision" for public schools. 490 S.W.3d at 845-46; Tex. Const.
Art. 7, §1. It outlined a "very deferential" review that would uphold lawmakers' actions if
they merely were reasonable and not arbitrary. 490 S.W.3d at 846.

As in Texas, we start our review of a statute with a presumption of
constitutionality. Gannon I, 298 Kan. at 1148. And we readily acknowledge it is not our
province to consider the wisdom of legislative policy choices. "[T]he function of the
court is merely to ascertain and declare whether legislation was enacted in accordance
with or in contravention of the constitution—and not to approve or condemn the
underlying policy." Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 348-49,
789 P.2d 541 (1990). See also Gannon I, 298 Kan. at 1140 (citing Harris v. Shanahan,
192 Kan. 183, 206, 387 P.2d 771 [1963] ["Courts have no power to overturn a law
enacted by the legislature within constitutional limitations, even though the law may be
unwise, impolitic, or unjust."]).

But as our decision in Gannon I has made clear, the State's demands for "virtually
conclusive deference" to the legislature in Article 6 cases is not the appropriate mode of
analysis for this court. The history of Kansas school finance litigation shows that the
people have empowered the judiciary with determining whether the State has met the
requirements of the constitution's education article. Gannon I, 298 Kan. at 1168 ("Just as
only the people of Kansas have the authority to change the standards in their constitution,
the Supreme Court of Kansas has the final authority to determine adherence to the
standards of the people's constitution.") (citing Harris, 192 Kan. at 207); Montoy III, 279
Kan. at 826 ("[T]he final decision as to the constitutionality of legislation rests
exclusively with the courts."); U.S.D. No. 229, 256 Kan. at 254-59 (judiciary has
authority to determine whether K-12 finance system is "suitable" under Article 6, § 6[b]).

41
 Moreover, our rejection of virtually conclusive deference to the legislature's
enactments is consistent with how various other state supreme courts generally review
their own state constitution education articles. See, e.g., Rose, 790 S.W.2d at 209 ("To
avoid deciding the case because of 'legislative discretion' . . . would be a denigration of
our own constitutional duty. To allow the General Assembly . . . to decide whether its
actions are constitutional is literally unthinkable."); Lake View Sch. Dist. No. 25 v.
Huckabee, 351 Ark. 31, 54-55, 91 S.W.3d 472 (2002) (quoting and adopting this Rose
language); Claremont School Dist. v. Governor, 142 N.H. 462, 475-76, 703 A.2d 1353
(1997) (Claremont II) ("[W]e were not appointed to establish educational policy, nor to
determine the proper way to finance its implementation. That is why we leave such
matters . . . to the two co-equal branches of government . . . [but i]t is our duty to uphold
and implement the New Hampshire Constitution . . . ."); Washakie County School Dist.
No. One v. Herschler, 606 P.2d 310, 319 (Wyo. 1980) ("Though the supreme court has
the duty to give great deference to legislative pronouncements and to uphold
constitutionality when possible, it is the court's equally imperative duty to declare a
legislative enactment invalid if it transgresses the state constitution."). See also
Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 266,
990 A.2d 206 (2010) ("'[I]t is well within the province of the judiciary to determine
whether a coordinate branch of government has conducted itself' in accordance with the
'authority conferred upon it by the constitution.'"); Idaho Schools For Equal Educ. v.
Evans, 123 Idaho 573, 850 P.2d 724 (1993) ("[W]e decline to accept the respondents'
argument that the other branches of government be allowed to interpret the constitution
for us."); McCleary v. State, 173 Wash. 2d 477, 530-40, 269 P.3d 227 (2012) (court
evaluates the record for itself to determine if legislature is complying with constitutional
duties).

Similarly, we reject the rational basis review which the State additionally
champions. In support of its argument, the State cites Downtown Bar and Grill v. State,
294 Kan. 188, 273 P.3d 709 (2012), where we rejected the bar and grill's equal protection
42
argument. We held that instead of a State obligation to provide evidence for its decision,
it was the bar's "obligation to negative every conceivable basis" for that decision.
(Emphasis added.) 294 Kan. at 198. Almost all plaintiffs would be unable to meet this
standard in litigation involving public education.

But even so, the plaintiffs here came close when the panel concluded in its
December 2014 decision "that constitutional inadequacy from any rational measure or
perspective clearly has existed and still persists in the State's approach to funding the K-
12 school system." (Emphasis added.) It repeated this conclusion in its June 2015
decision ("[T]he adequacy of State K-12 funding through FY 2015 was wholly
constitutionally inadequate from any rational perspective.") In sum, then, if the panel had
expressly applied the "very deferential" Morath test requested by the State—merely
reasonable and not arbitrary legislation—it still would have held the Kansas system to be
constitutionally inadequate. See Morath, 490 S.W.3d at 863.

Our rejection of the State's insistence upon virtually conclusive deference to the
legislature does not mean that deliberative body is without considerable discretion in
satisfying the requirements of Article 6. As we said in Gannon I, "[O]ur Kansas
Constitution clearly leaves to the legislature the myriad of choices available to perform
its constitutional duty[.]" 298 Kan. at 1151. We followed this path—one granting
deference but within proper bounds of judicial review—in our previous consideration of
the State's equity compliance. Gannon v. State, 304 Kan. 490, 500, 372 P.3d 1181 (2016)
(Gannon III) ("In our analysis, we do not dictate to the legislature how it should
constitutionally fund K-12 public school education; we only review its efforts to ensure
they do not run afoul of the Kansas Constitution.").

Consistent with our recognition of the proper amount of judicial deference due
legislative enactments, in Gannon I we disagreed with the panel's refusal to give

43
lawmakers the "flexibility" to consider all funding sources utilized in its K-12 funding
system, stating that on remand:

"In the panel's assessment, funds from all available resources, including grants and
federal assistance, should be considered. The legislative history of Article 6 reveals the
intent to provide a system of educational finance that is sufficiently flexible to be able to
utilize such sources. See Kansas Legislative Council, The Education Amendment to the
Kansas Constitution, pp. 31-32 (Publication No. 256, December 1965) (noting '[t]he
advisory committee emphasized that the legislature should have specific broader powers
. . . in matching federal funds' and expressing intent that Article 6 provide 'greater
flexibility . . . in . . . matching new federal and private grants')." (Emphasis added.)
Gannon I, 298 Kan. at 1171.

In short, we reject the State's demand for virtually conclusive deference to the
legislature's enactments when reviewing legislative compliance with Article 6.

Several other threshold points—some raised by the State and some by us sua
sponte—also need to be addressed in this analysis.

First, as mentioned, in our mixed review we will analyze whether the findings of
the panel's rulings—from January 2013 through June 2015—are supported by substantial
competent evidence. Gannon I, 298 Kan. at 1175-76. And as also mentioned, the State
has challenged—and we have rejected—both (1) the panel's refusal to open the record on
remand and admit the State's proffered evidence and (2) the panel's consideration of the
2012-2013 scores on standardized tests maintained by the KSDE. So the question
remaining and discussed below is whether the evidence actually admitted or judicially
noticed by the panel is nevertheless sufficient to support the panel's numerous findings
from December 2014 forward.

44
 At the start of this review for substantial competent evidence, we briefly address
the State's complaint that the panel "cherry picked" evidence it relied upon for its findings
and that we should disapprove of that particular harvesting practice. This complaint and
accompanying request are incompatible with our scope of review. In determining whether
substantial competent evidence supports the lower court findings, appellate courts must
accept as true the evidence and all the reasonable inferences drawn from the evidence
which support the district court findings and must disregard any conflicting evidence or
other inferences that might be drawn from it. Gannon I, 298 Kan. at 1175-76, 1185. We
do not reweigh evidence or assess credibility of witnesses. Reiss, 299 Kan. at 296.

Moreover, any harm from this alleged cherry picking would be ameliorated, if not
eliminated, by KSDE student achievement scores on standardized testing after 2012-2013
that both parties have invited us to judicially notice under K.S.A. 60-409 and K.S.A. 60-
412. As explained below, these years' worth of scores do not contradict the panel's
findings.

Second, in our mixed review, we will next consider the application of the law to
the findings in order to make our own conclusions of law. Gannon I, 298 Kan. at 1176.
At the beginning of this de novo review, we now address the State's complaint that the
panel improperly placed the burden on the State to prove it had complied with Article 6.
The State correctly notes that the burden shifts to the State only in the remedial phase of
the litigation, and unlike the issue of equity in Gannon I, this court had not yet ruled on
the constitutionality of adequacy—the issue before the panel on remand. See Gannon I,
298 Kan. at 1162. So the burden remains on the plaintiffs to show noncompliance.

We understand how some might construe the adequacy issue as being in the
remedial phase. For example, the State's own brief argues that CLASS was passed "in
prompt response" to the panel's December 30, 2014, decision holding the SDFQPA
constitutionally inadequate. And it characterizes CLASS as "an approach that was
45
'reasonably calculated' to obtain compliance with the Rose standards" established by
Gannon I. Nevertheless, the panel never expressly stated the State had the burden on
remand to prove constitutional compliance on adequacy. And after examining the panel's
decisions, we are convinced it did not shift the burden to the State.

In a similar vein, the State additionally complains that the panel applied the wrong
test—which led to a flawed conclusion of constitutional inadequacy. A similar argument
was made in Gannon II, where the State also claimed the panel had applied the wrong
equity test. Based in part upon the panel's language in stating the test, we rejected the
argument:

"In addition to explicitly stating it would proceed under Option B, the panel
quoted the language of the Gannon I equity test several times. So we may presume it
applied the proper test. Rush v. King Oil Co., 220 Kan. 616, 624-25, 556 P.2d 431 (1976)
(when apparent from the record the district court was aware of proper legal test to be
applied, appellate court presumes it applied proper test); see Unwitting Victim v. C.S., 273
Kan. 937, 947, 47 P.3d 392 (2002); Hegwood v. Leeper, 100 Kan. 379, 383, 164 P.173
(1917)." Gannon v. State, 303 Kan. 682, 711, 368 P.3d 1024 (2016) (Gannon II).

Here, on remand, the panel recited the Gannon I test multiple times, most
significantly in the conclusion of its December 2014 decision regarding the SDFQPA's
inadequacy:

"Accordingly, paraphrasing the textual premise of the Kansas Supreme Court's
Remand Order, we find the Kansas public education financing system provided by the
legislature for grades K-12—through structure and implementation—is not presently
reasonably calculated to have all Kansas public education students meet or exceed the
Rose factors. As we have analyzed, it is inadequate from any rational perspective of the
evidence presented or proffered to us."

46
This conclusion based upon the Rose standards was essentially confirmed in the panel's
June 2015 conclusion concerning CLASS's inadequacy: "House Substitute for SB 7, by
its failure to provide funding consistent with the needs found in our Opinion of December
30, 2014, and by freezing the inadequacy we found existing through FY 2015 for FY 2016
and FY 2017, also stands, unquestionably, and unequivocally, as constitutionally
inadequate in its funding." (Emphasis added.)

We further observe the panel's express clarification that, in effect, it also had
applied the Rose test in its pre-Gannon I decision of January 2013. "[I]f doubt exists, we
always intended to speak in this case implicitly in regard to K.S.A. 72-1127(c) and the
Rose tenets it emulated." The panel particularly noted that the 2006 Legislative Post
Audit Study it substantially relied upon "was premised on meeting the Rose-mirrored
goals set out by K.S.A. 72-1127(c) enacted in the 2005 legislative session. We found the
results of that study substantially authenticated and supported, in dollar terms, what was
needed to meet the K.S.A. 72-1127(c) standards." Accordingly, its application of the
Gannon test in December 2014 did not change the inadequacy conclusion it previously
reached in January 2013 when applying the Rose tenets. Nor, as mentioned, was the
CLASS inadequacy conclusion of June 2015 based upon non-Rose factors.

The panel also concluded "that constitutional inadequacy [existed] from any
rational measure or perspective"—one test which the State itself has argued is a proper
review for adequacy after Gannon I. (Emphasis added.) See Morath, 490 S.W.3d at 863
("We must uphold the Legislature's determination unless it is arbitrary and
unreasonable."). Based upon these and other facts, the State has not convinced us that the
panel reached the wrong conclusion on remand by applying the wrong test.

But even if the panel had improperly shifted the burden to the State, and even if it
had applied the wrong test for determining adequacy, the State's next argument makes
both alleged mistakes irrelevant. Specifically, consistent with its position in Gannon I,
47
the State also argues that because our appellate review is de novo, we can apply the
proper test to the findings ourselves and form our own conclusions. It cites Hall v.
Kansas Farm Bureau, 274 Kan. 263, 273, 50 P.3d 495 (2002), to declare, "[A]n appellate
court may affirm a lower court judgment that relied on the wrong legal standard if factual
findings support judgment under the correct legal standard." We agree with the State, for
as we said when addressing an analogous situation in Gannon I:

"But just as the panel analyzed capital outlay, here it too may have applied a test
of 'zero tolerance' for any wealth-based disparity, i.e., perhaps requiring the same
standard, or higher, under equal protection law that we rejected in prior school finance
decisions. Nevertheless, after applying our test we conclude that the level of wealth-based
disparity inherent in the LOB equalizing mechanism became an unreasonably disparate
level due to the proration of supplemental general state aid beginning in fiscal year
2010." (Emphasis added.) Gannon v. State, 298 Kan. 1107, 1188, 319 P.3d 1196 (2014)
(Gannon I).

So even assuming the panel made these purported mistakes regarding the test and
its application, we agree that our de novo review of legal conclusions allows us to apply
the Gannon I test ourselves and to keep the burden on the plaintiffs where it belongs.

CLASS's structure violates Article 6.

In Gannon I we instructed that "the panel must assess whether the public
education financing system provided by the legislature for grades K-12—through
structure and implementation—is reasonably calculated to have all Kansas public
education students meet or exceed the standards set out in Rose [citation omitted] and as
presently codified in K.S.A. [2016] Supp. 72-1127." 298 Kan. at 1199-1200. In
determining whether this test has been met, we first examine structure.

48
 We conclude as a matter of law that CLASS fails this requirement because it does
not profess to be a school finance formula. The State quotes the governor's State of the
State message of January 2015 that was delivered 2 weeks after the panel declared the
SDFQPA to be funded below constitutionally adequate levels. His language supports our
conclusion: "[T]he legislature should repeal the existing school finance formula
[SDFQPA] and allow itself sufficient time to write a new modern formula," i.e., until
June 2017. So instead of CLASS creating a replacement finance formula, its block grants
are just a funding stopgap and merely freeze the K-12 funding levels for fiscal years 2016
and 2017 at the levels for fiscal year 2015. Gannon II, 303 Kan. at 694. Moreover, they
are only minimally responsive to financially important changing conditions such as
increased enrollment, in general or by subgroup—which can include those "to whom
higher costs are associated." See U.S.D. No. 229 v. State, 256 Kan. 232, 244, 885 P.2d
1170 (1994).

CLASS implementation violates Article 6.

To determine whether the Gannon I test for adequacy is being met through
implementation, it is appropriate to look—as did the panel—to both the financing
system's inputs, e.g., funding, and outputs, e.g., outcomes such as student achievement.
See Montoy v. State, 279 Kan. 817, 840, 843, 112 P.3d 923 (2005) (Montoy III). The
Legislative Post Auditor confirmed this was the approach taken by the LPA cost study:
In her transmittal letter to members of the Kansas Legislature in January 2006, the
auditor wrote, "This report contains the results of both the input-based and outcomes-
based studies of K-12 education costs mandated by the 2005 Legislature."

Other state supreme courts have utilized the dual approach of examining inputs
and outputs. The Supreme Court of Arkansas evaluated the adequacy of its state's school
system following the legislature's adoption of many of the Rose capacities as the
minimum requirements of the state's K-12 structure. The court looked not only to the
49
level of expenditures for the education of its students and the resources available to its
districts, but also the performance of its students on various educational benchmarks.
Lake View v. Huckabee, 351 Ark. 31. Similarly, in Rose, the Kentucky Supreme Court
examined the quality of curricula provided to its students—including whether such
courses like music, art, and foreign languages were offered—and expert opinion on
whether the state's overall effort was adequate to meet the goals set out in that decision.
The court also compared its state schools' performance with others' on national
standardized testing and evaluations. 790 S.W.2d at 197-98. Cf. DeRolph v. State, 78
Ohio St. 3d 193, 677 N.E.2d 733 (1997) (court looked at deficiencies in one-half of
state's school buildings, schools' lack of funds to purchase textbooks, and evidence that
Ohio students' performance on test scores was poor overall).

Accordingly, we will first look at whether the evidence in the record demonstrates
that the funding levels and other resources produce an education system reasonably
calculated to achieving those Rose standards. Then second, we will also look to the
results of the State's input efforts to determine to what degree these standards are actually
being met—as this would be a strong signal as to whether the system as a whole is
reasonably calculated to achieve them. Contrast Gannon I, 298 Kan. at 1163 (explaining
that prior decisions' focus on cost estimate studies arose from the cases' specific
circumstances). The State heavily emphasizes outputs, again quoting the Texas Supreme
Court, "Because the adequacy standard 'is plainly result-oriented,' the proper focus of a
constitutional adequacy analysis should be on outputs that measure student performance."
Morath v. The Texas Taxpayer and Student Fairness Coalition, 490 S.W.3d 826, 863
(2016).

Here, the record on appeal provides ample evidence of the inputs of our state's
education system, i.e., resources allocated. It also provides ample evidence of outputs—
i.e., the actual performance of our K-12 public education students. So we now turn to

50
evaluate whether this evidence exhibits a school system that meets the requirements of
Article 6.

The panel's findings are supported by substantial competent evidence.

The panel's December 30, 2014, decision included an adoption of its January 2013
findings of facts and conclusions of law, with some amendment. After considering the
prior record, its prior findings, and the State's proffered evidence on remand—and after
taking judicial notice of matters such as student achievement scores on standardized
testing for school year 2012-2013—the panel essentially reaffirmed its position regarding
statewide inputs and outputs:

"[W]e found [in January 2013] the Kansas K-12 school financing formula
constitutionally inadequate in its present failure to implement the necessary funding to
sustain a constitutionally adequate education as a matter of current fact as well as the
precedent facts that supported the Montoy decisions. That is still our opinion." (Emphasis
added.)

En route to this affirmation, the panel found, as it had with a specific finding in
January 2013, that the infusion of additional money into the K-12 educational system
after Montoy IV in 2006 "was making a difference." The panel found this was evidenced
by considerable progress in student achievements until it began to waver during the 2011-
2012 school year once the residual effects of the Montoy extra funding wore off after cuts
began in 2009. The panel spent considerable effort reviewing several years' worth of
KSDE student achievement statistics—for all students and for subgroups—through 2012-
2013, which helped lead it to find that achievement actually declined as funding
decreased. It also specifically examined how, if at all, the Rose standards were being met
in the state. Ultimately, the panel reiterated that "the reduced funding status discussed in
the original trial court Gannon opinion still exists."

51
 The findings of the panel were based on expert and lay testimony at trial, as well
as numerous exhibits and evidence presented by both the plaintiffs and the State and facts
of which it took judicial notice. We hold the panel's findings are supported by substantial
competent evidence. And as explained below, its findings are not inconsistent with the
numerous facts we judicially noticed at the parties' request, including the most recent
years' worth of both inputs and outputs—such as student achievement scores on
standardized tests.

Inputs

In its analysis regarding funding inputs, the panel considered and averaged several
cost studies—including the 2006 LPA study. But it rejected or heavily discounted several
sources of funding presented by the State.

The State's brief characterizes what it believes to be the panel's faulty analytical
progression, i.e., erroneously treating the cost studies' conclusions regarding appropriate
BSAPP levels as the benchmark for constitutional compliance and erroneously failing to
give credit for all funds provided by the state and federal governments:

"The averaged actual cost studies measure the education required under the Rose
standards. An average of the studies sets a floor for adequate funding of the education
necessary under Article 6; Federal and LOB funds are not considered in whether
adequate funding exists, Kansas K-12 funding is less that [sic] that floor, particularly
when federal and LOB revenue is ignored; and, Therefore, present funding is
unconstitutionally inadequate."

Regarding consideration of funding inputs on remand, in Gannon I we instructed
that "[i]n the panel's assessment, funds from all available resources, including grants and
federal assistance, should be considered." 298 Kan. at 1171. We acknowledge, as the
plaintiffs have argued, that we also authorized the panel to consider any limitations on
52
these funds. 298 Kan. at 1171-72 ("The panel may consider the restrictions on the use of
these federal, pension, and other funds and determine that even with the influx of these
additional monies the school districts are unable to use them in the manner necessary to
provide adequacy under Article 6."). But the panel should have given greater
consideration and some value to the other various sources of funds and not rejected their
applicability to the adequacy calculus.

For example, the panel rejected LOB funds as a "constitutionally adequate funding
source" because the LOB "statutory funding design is optional and voluntary as to both
its existence and in the dollar contribution to be made by it." We note that according to
the State's latest brief, the statewide LOB budget for fiscal year 2016 was
$1,061,277,923. And as we have previously noted, LOB funds are generally unrestricted
in their use by local districts, which means such funding can directly supplement BSAPP
spending. See Gannon v. State, 304 Kan. 490, 506, 372 P.3d 1181 (2016) (Gannon III).
Indeed, we have recognized the legislative record reveals that LOB funds now pay for
nearly one-fourth of the districts' basic operating expenses. 304 Kan. at 507. But we
additionally note to the panel's credit that it appeared to alternatively determine that even
if LOB funding was included, the system would still be unconstitutional.

As for federal funds, the panel held they were not properly included in any
measure of adequacy because, among other things, many were "limited in use." It found
that as with the LOB, federal funds were not uniform throughout the state and the
amounts were not guaranteed to the districts. We note that according to the State's brief,
for fiscal year 2015 federal funds statewide totaled $510,199,401. And we additionally
note the positive impact of such funding was specifically recognized by the panel when it
described the improved student achievement in those schools receiving additional federal
funds such as Emerson Elementary, which, as discussed below, the panel highlighted as
one example of where "money makes a difference." As with the LOB, the panel should

53
have given those federal funds some level of value in its determination of the adequacy of
the state's K-12 financing system.

The same shortcoming holds true for KPERS. As we advised the panel on remand
in Gannon I, "state monies invested in the Kansas Public Employees Retirement System
[KPERS] may also be a valid consideration because a stable retirement system is a factor
in attracting and retaining quality educators—a key to providing an adequate education."
298 Kan. at 1171. We acknowledge the State's practice of placing those funds, i.e.,
employer contributions, in school districts' treasuries where they merely pause before
being forwarded to KPERS—an act described as a simple "pass-through" that the State
argues helped it to create "record high levels" of funding for education. And we further
observe these funds do not affect the districts' ability to operate on a day-to-day basis or
increase the retirement benefits. Nevertheless, we also acknowledge that by whatever
route the funds travel, or for however briefly they stay in the districts' treasuries, they
ultimately have some value to the thousands of individual recipients in the education
system and help to create a competitive hiring environment for Kansas schools. 298 Kan.
at 1171. After the panel considered KPERS funds, it should have given them some level
of value in the adequacy analysis, even if that value is ultimately determined to have
insufficient impact on the Rose standards to offset other problems created by CLASS.

Turning to the various cost studies, the State has objected to the panel's reliance on
them and its accompanying emphasis upon reductions to the BSAPP as contrary to
Gannon I, where we held that the panel over-relied on "actual costs" and gave too much
weight to the empirical evidence on costs. But to currently provide a fuller picture, we
also instructed that "[n]evertheless, actual costs remain a valid factor to be considered
during application of our test for determining constitutional adequacy under Article 6."
298 Kan. at 1170. And as discussed below, the changes made to the state's K-12 system
specifically through reduction in BSAPP funding had a pronounced effect on local
districts' ability to meet the Rose standards—even when considering any purported
54
increases to other sources of funding. So it was appropriate for the panel to look at
BSAPP reductions and cost studies. Accordingly, we do not completely agree with the
State's characterization of the panel's ladder of analysis, i.e., that the panel considered the
averaged cost studies and BSAPP levels as the litmus test for Article 6 compliance.

Any panel infirmities regarding funding, however, must be placed in context
because "total spending is not the touchstone of adequacy." Gannon I, 298 Kan. at 1172.
Acknowledging this reality, the panel went further than simply measuring the amount of
funds available to districts. It looked at what effects state reductions in BSAPP had on
actual resources, such as staff, class sizes, and student opportunities. See 298 Kan. at
1172 (panel can consider how allocation of financial resources impacts State's ability to
meet Rose standards).

In its extensive examination, the panel found that every witness, including experts,
who testified on the subject confirmed that the costs of educating Kansas students and the
demands on Kansas education had only increased since 2007. The panel found, based on
this testimony, that while the demands on schools increased—including the size of
student populations—the available resources declined, creating a gap between demands
and resources in Kansas public education.

During this same period, the panel found that the BSAPP—a primary factor in
calculating funding of the basic education costs in the districts—was reduced to $3,780.
This reduction, the panel noted, was in direct opposition to the recommendations of
several expert bodies. The Kansas State Board of Education (SBE), at its annual July
meetings from 2009 to 2014, unfailingly recommended that the legislature fund the
BSAPP at $4,492. Additionally, the SBE recommended that the state increase funding for
such programs as professional development, school lunch programs, capital outlay, and
extracurricular agendas. The Kansas 2010 Commission recommended in its annual
reports from December 2007 through its last report in 2010—like the SBE—that the
55
BSAPP be set at $4,492. It also recommended that this amount be adjusted annually for
inflation. See Montoy v. State, 282 Kan. 9, 23, 138 P.3d 755 (2006) (Montoy IV) (noting
legislature's creation of 2010 Commission "to conduct extensive monitoring and
oversight of the school finance system").

Finally, the A & M and LPA studies—both also commissioned by the
legislature—performed exhaustive review of the state's school finance system. They both
recommended funding BSAPP levels well above this $3,780 amount and similar to those
of the 2010 Commission and the SBE. As mentioned, the panel found the legislature
particularly tasked the 2006 LPA study with estimating the cost of educating Kansas
children to meet the goals then set out in 72-1127, which we previously found appeared
to represent a deliberate decision by the Kansas Legislature to match the Rose
capacities—the minimum standards of an adequate public education system under Article
6, § 6(b). Gannon I, 298 Kan. at 1167.

After reviewing the evidence from trial, the panel found that because of the
funding cuts beginning in 2009, districts were required to eliminate programs and
services directly beneficial to the achievement of the Rose standards. Based on testimony
from Kansas administrators, principals, and teachers, the panel further found that certain
successful strategies and methods exist that can improve student achievement and extend
learning opportunities, such as longer school days, Saturday school, all-day kindergarten,
before and after school programs, extracurricular activities such as speech and debate,
band and orchestra, smaller class sizes, professional development, and the employment of
qualified teachers.

The witnesses established that such school programs going beyond the basics of
math and English Language Arts (ELA)—which includes reading, writing, literature,
communication, and grammar—are known to be successful educational approaches that
produce consistent progress and achievement of academic success. As the Rose standards
56
and the education goals of the legislature (K.S.A. 2016 Supp. 72-1172) illustrate, K-12
education includes teaching students appreciation for the arts, music, and sports as well
as the ability to interact with each other and the rapidly developing world around them.
Expert witnesses explained these attributes of a quality education are integral and must be
a part of the state's K-12 system for it to meet the constitutional requirements of Article 6.
The panel again found that because of the cuts in funding by the State after 2009, districts
were forced to eliminate or reduce such programs to the detriment of their students.
Among the examples found by the panel from the evidence at trial about funding
reductions from across the state were removing 10 high school librarians in Wichita;
eliminating afterschool programs for 600 students at Dodge City's Northwest Elementary,
as well as ending field trips at that same school; the loss of band and orchestra programs
at Wichita's Dodge Literacy Magnet School; and cutting Spanish, art, and family
consumer sciences courses at Kansas City's West Middle School.

The panel also found the 2009 budget cuts forced school districts statewide to cut
2,500 positions—including 1,567 for teachers. These reductions undoubtedly increased
class sizes because they occurred when statewide full-time enrollment was increasing.
Additionally, teacher salaries remained largely stagnant, while some had to be reduced.

In its findings the panel cited to the State's own expert witness, Dr. Eric Hanushek,
who testified, "the most important factor influencing student achievement is the quality of
the teacher." As we acknowledged in Gannon I, quality educators are a key to providing
an adequate education and money plays a role in their employment. See 298 Kan. at 1171
(noting state monies invested in a stable retirement system is a factor in attracting and
retaining quality educators). Accordingly, pay cuts or salary freezes can affect the
quantity and quality of teachers a school system employs and therefore directly impact
the system's ability to achieve the Rose standards.

57
 Additionally, smaller class sizes, as the panel found through expert testimony, are
an effective tool for increasing student achievement. See Abbott by Abbott v. Burke, 153
N.J. 480, 558, 710 A.2d 450 (1998) (smaller class sizes provide higher quality of
educational experience); Campaign for Fiscal Equity v. State, 187 Misc. 2d 1, 52, 719
N.Y.S.2d 475 (2001) ("smaller class size can boost student achievement . . . . The
advantages of small classes are clear. A teacher in a small class has more time to spend
with each student. . . . Student discipline and student engagement in the learning process
improve in smaller classes."); Campbell County School Dist. v. State, 907 P.2d 1238,
1278 (1995) (Wyo. 1995) (small class sizes are indicia of educational opportunity).

As the panel found, these cuts also impacted other staff members and
extracurricular functions of the K-12 system that are vital to the achievement of the Rose
standards. These include the first Rose standard, "sufficient oral and written
communication skills to enable students to function in a complex and rapidly changing
civilization"; the fourth standard, "sufficient self-knowledge and knowledge of his or her
mental and physical wellness"; and the fifth standard, "sufficient grounding in the arts to
enable each student to appreciate his or her cultural and historical heritage"—all of which
are directly served by staff members such as librarians, speech therapists,
paraprofessionals, coaches, and counselors. See 790 S.W.2d at 212.

The panel found such positions were reduced or eliminated based on an inability
of the districts to properly fund them. For example, for the 2009-2010 school year, school
districts eliminated 234 coaching positions and cut over 500 paraprofessionals. Stony
Point South Elementary in Kansas City lost specialist teachers who work one on one with
students having difficulty, and all tutoring programs. According to Kim Morrissey, a
physical education teacher in Wichita, because of financial constraints her elementary
school was forced to double the size of its physical education classes. Additionally, due
to a lack of funding, the school was unable to continue the employment of a needed
school nurse, social worker, and student counselor. Instead, through a form of triage, her
58
school would hire only one of these staff members on an annual basis, making its choice
based on which service was needed by the greatest number of students during the
upcoming school year.

The panel also found that budget constraints additionally impacted other elements
of Rose standards two and three. They forced schools to cut vital programs that help
students gain "'sufficient knowledge of economic, social, and political systems to enable
[them] to make informed choices'" and "'sufficient understanding of governmental
processes to enable the student to understand the issues that affect his or her community,
state, and nation.'" Gannon v. State, 298 Kan. 1107, 1164, 319 P.3d 1196 (2014) (Gannon
I). According to Wyandotte High School principal Mary Stewart, when short on funding,
schools first cut political science and social studies activities and staff members. Unlike
math and ELA, those courses are not as integral to student success on the standardized
testing required by the state. But students' education in these areas is also often advanced
and supplemented by field trips and other activities that provide children the opportunity
to interact with their community in a meaningful way. Because of the funding shortfalls
shown at trial, these opportunities have dwindled or become unavailable.

Finally, the panel found that because of lack of funds a number of schools have
had to cut access and training in technology and vocational studies. As one example, in
2011-2012, the Wichita district experienced a $1.6 million decrease in its technology
education budget. The panel found such cuts directly impacted the achievement of the
sixth and seventh Rose standards: "sufficient training or preparation for advance training
in either academic or vocational fields so as to enable each child to choose and pursue life
work intelligently; and sufficient levels of academic or vocational skills to enable public
school students to compete favorably with their counterparts in surrounding states in
academics or in the job market." See 790 S.W.2d at 212.

59
 Substantial evidence—including evidence discussed below in the outputs section
demonstrating that student achievement rose when funding increased after Montoy IV in
2006 but eventually fell when funding began to decrease in 2009—ultimately helped lead
the panel to make a finding that "money makes a difference" in public education. As
additional evidentiary support, it cited Kansas cost studies, particularly the legislature's
LPA study of 2006. That study concluded, with "99% confiden[ce]," that the relationship
between student performance and district spending was positive, i.e., that a 1% increase
in student performance was associated with a .83% increase in spending. And the
legislatively-created 2010 Commission concluded that "Kansas students have made great
academic strides . . . largely due to the infusion of school funding." (Emphasis added.)
See also Kansas Legislative Council, The Education Amendment to the Kansas
Constitution, p. 30 (Publication No. 256, December 1965) ("'Financing' is one of the
major ways to effect changes in educational policy.").

Illustrative of the substantial competent evidence supporting the panel's finding of
a correlation between funding and student achievement in the state is Emerson
Elementary School of Kansas City, with a demographic breakdown of approximately
50% African American and 48% Hispanic students. Dr. Cynthia Lane, the district's
superintendent, testified that in 2009 Emerson had been declared the worst performing
elementary school in Kansas. But new funding through federal grants led to
implementation of programs and policy changes that helped dramatically increase student
achievement. After 3 years, students moved from math and ELA state proficiency rates of
30% to 85%. Contrast Morath v. The Texas Taxpayer and Student Fairness Coalition,
490 S.W.3d 826, 851-53 (2016) (plaintiffs did not prove that achievement "gaps of ELL
and economically disadvantaged students . . . could be eliminated or significantly reduced
by allocating a greater share of funding to these groups"). We acknowledge the State
presented trial testimony and argument offering contrary views about the Emerson
Elementary experience. But the panel resolved those differences in plaintiffs' favor after

60
hearing the evidence and making determinations in its role as fact finder. Its resolution of
these arguments is also supported by substantial competent evidence.

As mentioned, the resources available to school districts must be placed in context.
And the State contends that outputs, not these imperfect inputs, are the most important—
if not the sole—consideration in looking for adequacy, citing Morath. "An adequacy
determination should not depend on 'inputs' such as funding per student; instead, the
determination is 'plainly result-oriented,' looking to 'the results of the educational process
measured in student achievement.'" 490 S.W.3d at 850.

We disagree with the State to the extent it would have us disregard—or greatly
discount—the panel's factual findings detailing the loss of vital resources and its
additional finding that this occurred as a result of cuts to state funding through reductions
in BSAPP levels. Certainly, funding levels would not warrant much scrutiny if student
achievement across the demographic landscape were demonstrably high. But as we
discuss below, the outputs as found by the panel ultimately have declined since the State's
cuts to BSAPP occurred—despite the State's declarations of "record high levels" of
funding from all sources.

Moreover, despite some panel frailties we have identified, it is important to
recognize that the legal conclusions to be derived from its findings remain ours. This
recognition severely dilutes, if not eliminates, the importance of the panel's consideration,
or refusal to accept, some of these factors about which the State objects. See Gannon I,
298 Kan. at 1176 (panel's conclusions of law based on its findings are subject to our
unlimited review).

61
 Outputs

The resources available to Kansas educators are legitimate and helpful
measurements of whether the state's K-12 system is reasonably calculated to meet or
exceed the Rose standards. But because total spending is not dispositive of adequacy, the
parties appropriately produced a lot of evidence showing the outcomes of the state's
public education system over the years leading up to trial, i.e., "outputs." This evidence
took the form of such things as student scores on various standardized testing, college
entrance exams, and graduation rates published by the KSDE.

Regarding this evidence, the State argues that on the whole Kansas' K-12
education system has shown great improvement in student academic success—including
all grades and all "subgroups" of students—from 2003 until the 2011-2012 school year.
The evidence presented by the State shows a marked improvement during this period.

For example, during the 2003-2004 school year, of all Kansas students tested in
reading, 70.5% scored proficient for their grade level. The State argues this percentage
improved to 80.3% during the 2005-2006 school year and increased to 87.6% for the
2011-2012 school year. In math, 65.3% of all tested students scored proficient in their
grade level during the 2003-2004 school year, but by 2011-2012, this percentage had
improved to 85.9%. We observe that the information for the 2011-2012 report is noted as
"preliminary data" in the parties' briefs. But both sides repeatedly cite to those
percentages, and we accept them for the purposes of measuring student achievement
during that school year.

The State argues that by 2011-2012 the "achievement gaps" existing between
(1) all students and (2) certain student subgroups had narrowed. It contends every
subgroup had been below 65% proficient in math in 2005-2006, and by 2011-2012 that
number had "climbed" above 65%—with an average increase of 15 percentage points.
62
And for reading, every subgroup had been below 70% in 2005-2006, and by 2011-2012
that number had risen above 70%—with an average increase of at least 10 percentage
points.

The State further points out that when reviewing the results of 4th and 8th grade
students tested through the National Assessment of Educational Progress (NAEP)—often
called the Nation's Report Card—Kansas has scored higher than the national average
since 2003. The State also emphasizes that to demonstrate "more Kansas students are
prepared for college than in the past," Kansas ranks above average in the nation for the
takers of the ACT college entrance examination who meet the College Readiness
Benchmarks. And in assessing student performance through remediation rates, Kansas
scores for college-bound students rank in the top 10 of all states and have improved over
the last 15 years.

Additionally, the State argues high school graduation rates have improved in all
subgroups and overall from 80.7% in 2010-2011to 85.5% in 2013-2014. Finally, the State
also points out that all schools are now accredited.

We acknowledge these improved achievements between 2003 and 2011-2012 as
laudable and encouraging to any observer who believes a school system can be improved
with effort. But as the panel found, they came during increased funding—and its
aftermath—as a result of extensive litigation in Montoy over the same questions of
adequacy we are concerned with today. These funding increases through the SDFQPA
were rolled back beginning in 2009. See Gannon I, 298 Kan. at 1114. And as the panel
found through substantial competent evidence, student achievement began to "falter"
around 2011-2012 and declined in 2012-2013—for "all students" assessed and especially
for "subgroups"—as programs and strategies designed, and known, to be successful in
accomplishing the Rose standards were reduced or eliminated. Contrast Morath, 490
S.W.3d at 864-68 (over time, tests show mixed results, with some improvement and some
63
regression, helping lead court to conclusion system was constitutionally adequate). The
panel found that these declines in achievement were attributable to the decrease in
funding.

At the outset, we recognize the 2012-2013 school year results of standardized
testing were contained in the KSDE information the panel considered—to which the State
objected as "anomalous"—and noted with caution from the KSDE. But more KSDE
report cards with even more recent testing information have been issued since the panel's
decision.

Both parties invited us in their briefs and at oral arguments to judicially notice this
updated KSDE data. Generally, this court is authorized to accept the parties' invitation to
take judicial notice of facts not before the panel. See K.S.A. 60-412(c) ("The reviewing
court in its discretion may take judicial notice of any matter specified in K.S.A. 60-409
whether or not judicially noticed by the judge."); Harris v. Shanahan, 192 Kan. 183, 207,
387 P.2d 771 (1963); K.S.A. 60-412(d). As mentioned, courts can take judicial notice of
statistics compiled and published by a state department. See, e.g., Harris, 192 Kan. at
207.

The KSDE has not published data for the 2013-2014 school year because of
security issues with the server that held the department's data and an inability to vouch
for their accuracy. But we take judicial notice of the numerous scores from standardized
testing collected and published for the 2014-2015 and 2015-2016 school years.

This updated data is not contrary to the panel's December 2014 findings, e.g.,
"the impact of the loss of funding was endemic, systemic, and statewide." Nor does it
contradict the panel's finding of declining achievement, and often failure, among
thousands of Kansas school children. Indeed, it appears to demonstrate a steady
regression from the student improvements appearing from 2003 until the 2011-2012
64
school year. Finally, the updated data is not inconsistent with the panel's finding that
many of the "all student" averages emphasized by the State hide a pernicious problem,
i.e., an "achievement gap," between all students and subgroups of students.

The State cautions that the statistics for these 2 particular years come after a
change in school curriculum and testing standards statewide. Prior to this change,
students were tested using a five-tiered system that grouped test takers into the categories
of "academic warning, approaches standards, meets standards, exceeds standards, or
exemplary." Those students achieving only "academic warning" or "approaches
standards" were considered to be falling below proficiency for their grade level in the
subject tested, e.g., math or reading.

The new testing standards group students into four achievement levels. Level one
is students who are not performing at grade level in the given subject. Level two
comprises students who, while performing grade level work, are not doing so at a level of
rigor considered "on-track" for college success. Level three is made up of students
performing grade level work and are on track for college readiness. Level four are those
students who perform above expectations.

We note the differences in nomenclature between the testing mechanisms over the
relevant years. But we need not resolve these methodological concerns to a fine point for
several reasons. First, unlike its cautionary communication for the 2012-2013 test results,
the KSDE has not issued any such communication for these latter years. More important,
all of the KSDE's measurements are still designed to determine student achievement
according to its chosen standards, regardless of how they may be described at any time.
No party has challenged that department's ability or authority to adopt various standards
or tests which, in the view of its professionals, help accurately measure student
performance, e.g., proficiency, for any given year. Nor has any party disputed the

65
accuracy of the results of those tests as recorded by the KSDE—other than perhaps the
State's complaint about the "anomalous" results of 2012-2013.

We observe that the KSDE operates at the direction of the SBE. See K.S.A. 72-
7701 (creating State Department of Education and placing it under administrative control
of the commissioner of education as directed by law and by SBE). Moreover, the elected
members of the SBE have been entrusted by the legislature with developing curriculum
so Kansas public school students can meet Rose standards—curriculum required to be
taught in every accredited school in the state. K.S.A. 2016 Supp. 72-1127. It logically
follows that tests would be created or adopted to measure whether Kansas students are
performing at appropriate levels of this curriculum.

We acknowledge the KSDE can sometimes change the labels for the student
performance standards, the level of skills needed to meet those standards, and even the
tests for measuring performance against those standards. But through it all, the
underlying purpose of the standards remains constant: here, to determine educational
proficiency in any given year. Accordingly, the basic standard of measurement by the
state's education department remains consistent for purposes of appellate review.

KSDE testing of reading for all grades from 2011-2012 to 2015-2016

According to KSDE standards and testing in 2011-2012, although 12.4% of all
Kansas students tested in all grades did not meet the state's own minimum standards for
proficiency in ELA, e.g., reading, more than twice that percentage of all African
American students—28.9%—failed to do so. KSDE reported that percentage for African
Americans as 31.6% in 2012-2013, 40.8% in 2014-2015, and 44.7% in the 2015-2016
school year. According to this latest data, when calculated by number of students, nearly
one-half of our state's African American students are not proficient in reading.

66
 In 2011-2012, 22.1% of all Hispanic students did not meet the state's minimum
standards for proficiency in reading. Four years later, the percentage failing to meet the
standards set for that year was 36%. In short, more than one-third of all Hispanic students
are not proficient in reading.

To put these figures into a meaningful frame of reference, during the last school
year more than 33,000 Hispanic students and 15,000 African American students
statewide performed below grade level in a subject at the heart of an adequate education.
Combined, those underperforming students equate to approximately all the K-12 public
school students "in every school district in every county with an eastern boundary
beginning west of Salina"—more than one-half of the state's geographic area.

During this same 4-year period of testing, KSDE reported the percentage of all
ELL students who did not meet the state's minimum standards as 28.2% in the first year
and 43% in the last, and the percentage of all disabled students who did not meet the
minimum standards as 28.8% and 57.9%, respectively. Finally, the percentage of all
students receiving free and reduced lunches who did not meet the minimum standards
was initially 20.2% and then 34.8%.

During this same time frame, the percentage for all students performing below
grade level initially was 12.4% with 23.3% in 2015-2016. Stated simply and starkly,
while Kansas fails to provide nearly one-fourth of all its public school K-12 students with
the basic skill of reading, the proficiency data for 2015-2016 reflected a continuation of
an achievement gap between all students and the subgroups that existed under the
standards set for the 2011-2012 school year.

We acknowledge that some subgroups can have their own special challenges to
achievement. See Morath, 490 S.W.3d at 859-60 ("The plaintiffs concede that
economically disadvantaged students face challenges outside the schools that affect their
67
educational achievement."). However, their particular hurdles do not satisfactorily
explain why today nearly one-fourth of all Kansas students are not proficient in reading;
the panel held the fuller explanation lies in a finance system that is not reasonably
calculated to have all Kansas public school students meet or exceed the standards set out
in Rose and presently codified in K.S.A. 2016 Supp. 72-1127. When multiplying the total
number of students statewide in 2015-2016 by the rate of those below proficient in
reading (23.3%), the result is approximately 113,000 students.

KSDE testing of math for all grades from 2011-2012 to 2015-2016

The KSDE standardized testing results for math show that for all students in 2011-
2012, 14.1% did not meet the state's own minimum standards for proficiency, compared
to African American students at 32.3%. KSDE reported that percentage for African
Americans to be 40.9% in 2012-2013, 41.9% in 2014-2015, and 48.7% in the 2015-2016
school year. In other words, nearly one-half of our state's African American students are
not proficient in math.

In 2011-2012, 22.2% of all Hispanic students did not meet the state's minimum
standards for proficiency in math. Four years later, KSDE reported that percentage as
38.7%. In short, more than one-third of all Hispanic students are not proficient in math.
And during this same period of testing, KSDE measured the percentage of all ELL
students who did not meet the minimum standards as 24.8% in the first year and 42.8% in
the latter school year.

For all disabled students, KSDE reported the percentage who did not meet the
state's minimum standards as 31% in the first year and 60.7% in the last, and the
percentages of all students receiving free and reduced lunches who did not meet the
standards were reported as 21.8% and 37.5%, respectively. In other words, by KSDE's
own standards for 2015-2016, substantially more than one-half of our state's disabled
68
students—and more than one-third of our economically disadvantaged students—are not
proficient in math.

During this same time frame KSDE reported the percentage for all students
performing below grade level initially was 14.1% —with 26.3% in 2015-2016. To again
state it starkly, Kansas still is failing to provide more than one-fourth of all its public
school K-12 students with the basic skill of math. Both math and reading are core
subjects for gaining sufficient training in the most basic requirements of an adequate
education system. So this situation reflects, as the panel found based on the evidence, a
failure to meet the sixth and seventh Rose standards. Rose v. Council for Better Educ.,
Inc., 790 S.W.2d 186, 212 (Ky. 1989) ("[vi] sufficient training or preparation for
advanced training in either academic or vocational fields so as to enable each child to
choose and pursue life work intelligently; and [vii] sufficient levels of academic or
vocational skills to enable public school students to compete favorably with their
counterparts in surrounding states, in academics or in the job market").

The most recent KSDE test scores also reflect a continuing achievement gap
between all students and subgroups. While some of the subgroups can have their own
special achievement challenges, that again does not satisfactorily explain why today more
than one-fourth of all students are not proficient in math; as we noted earlier, the panel
held the fuller explanation lies in the lack of a school finance system reasonably
calculated to meet the needs of all students. Multiplying the 2015-2016 math proficiency
rate of 26.3% times that year's student population means that at a minimum 127,000
students were below proficient according to standards of that year. The achievement
levels of the four plaintiff districts were not dissimilar from these.

As discussed below, the KSDE reports containing scores on Kansas standardized
tests reveal that the proficiency percentages for subgroups—even when limited to
specific grade—are not inconsistent with (1) the previously-mentioned KSDE scores for
69
"all grades" and (2) the panel's findings. Among other things, the reports demonstrate that
an achievement gap persists. Unlike some other reports, these particular KSDE statistics
do not categorize students who are disabled or participate in free and reduced lunch
programs.

KSDE testing of reading and math for only high school students from 2011-2012
to 2015-2016

In reading, 26.4% of African American high school students initially scored below
proficient in 2011-2012. KSDE reported this number as 50.7% for 2015-2016. In math,
34.5% scored below proficient in 2011-2012, and 62.5% in 2015-2016. In short, last
school year more than one-half of our state's African American high school students were
below proficient in reading, and nearly two-thirds were below proficient in math.

During this same 4-year period, 20.8% of Hispanic high school students initially
scored below proficient in reading, and finally 44.1% did so. In math, KSDE reported the
percentages below proficiency as 25.7% initially and 58.2% in the fourth year. So last
school year nearly one-half of our state's Hispanic high school students were below
proficient in reading, and substantially more than one-half were below proficient in math.

For ELL students, KSDE reported the percentage who scored below proficient in
reading as 37% in the first year and 60.5% in the last year. In math, 35.3% initially
scored below proficient, which moved to 68.1%. In other words, last school year more
than one-half of our state's ELL high school students were below proficient in reading,
and more than two-thirds were below proficient in math.

During these same years of testing the percentage for all high school students not
meeting the KSDE reading standards for their grade that year initially was 10.6%—with
27.8% in 2015-2016. In math, KSDE reported percentages of 15.4% and 40.8%. Simply
70
put, less than 60% of all Kansas high school students are proficient in math. And an
achievement gap between them and subgroups persists for those students who because of
their age and grade in school have fewer years to eliminate such a gap.

KSDE and NAEP testing of reading and math for 4th graders and 8th graders
from 2011-2012 to 2015-2016

The State points out that in the NAEP testing for 4th graders, Kansas was ranked
5th nationally for math and 10th for reading, while for 8th graders Kansas was ranked 6th
for math and 16th for reading. The NAEP is not a Kansas-created achievement test. But
the chart below demonstrates that achievement gaps for subgroups appearing in the
results of K-12 KSDE testing in any given year—for all grades, and specifically for 4th
and 8th graders—also appear in the NAEP results. Indeed, citing one year's NAEP results
as an example, the panel made such a finding: "The achievement gap that exists between
Kansas subgroups on state assessments, also appears in the NAEP results."

We must acknowledge the panel's finding that essentially recognized NAEP's
approach to measuring student performance is not identical to the KSDE's. Among other
things, the panel found that NAEP calculates the percentage of students who test below
its standard of "basic." Additionally, the KSDE reports that the NAEP tests only
samplings of students whereas the KSDE tests all students. Finally, the NAEP does not
test annually and only tests several grades—typically the 4th and 8th because according
to the NAEP they "represent critical junctures in academic achievement." Nevertheless,
NAEP figures have value in our analysis of outcomes.

The chart discloses the percentage of students scoring "below proficient" on the
KSDE academic testing and "below basic" on the NAEP academic testing by grade and
year.

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KSDE 8th Grade ELA 2011-2012 2012-2013 2014-2015 2015-2016 NAEP 8th Grade Reading 2009 2015
All Students 11.8% 13.3% 20.5% 23.4% All Students 20% 21%
African Americans 27.2% 28.0% 40.2% 44.1% African Americans 43% 43%
Hispanic 21.1% 24.2% 32.0% 34.0% Hispanic 39% 34%
ELL 29.7% 33.5% 39.3% 41.2% ELL 61% 39%

KSDE 8th Grade Math NAEP 8th Grade Math
All Students 15.2% 22.2% 36.8% 40.1% All Students 21% 24%
African Americans 32.8% 41.3% 60.4% 66.5% African Americans 48% 46%
Hispanic 24.8% 35.7% 52.1% 55.7% Hispanic 35% 35%
ELL 30.0% 44.0% 57.0% 61.9% ELL 52% 45%

KSDE 4th Grade ELA 2011-2012 2012-2013 2014-2015 2015-2016 NAEP 4th Grade Reading 2009 2015
All Students 11.6% 14.3% 11.0% 13.8% All Students 28% 32%
African Americans 26.6% 31.2% 24.7% 31.5% African Americans 44% 56%
Hispanic 18.9% 26.2% 17.8% 22.9% Hispanic 45% 46%
ELL 22.4% 30.7% 20.2% 27.2% ELL 53% 55%

KSDE 4th Grade Math NAEP 4th Grade Math
All Students 11.0% 17.5% 13.8% 16.5% All Students 11% 17%
African Americans 26.7% 35.9% 30.1% 38.4% African Americans 34% 43%
Hispanic 16.3% 28.9% 21.7% 26.4% Hispanic 19% 29%
ELL 17.8% 32.5% 24.0% 30.0% ELL 20% 34%

Other outputs

The State points to other outputs besides the NAEP results and KSDE results on
Kansas' standardized testing. For example, Kansas ranks above average in the nation for
ACT takers. But the panel found achievement gaps appearing in K-12 KSDE and NAEP
testing also exist with the ACT.

ACT

We note the panel found ACT sets benchmarks to determine college readiness for
several subjects commonly taken by first-year college students. The benchmarks
represent the minimum ACT scores required for high school students to have a 75%
chance of earning a C or better, or a 50% chance of receiving a B or better in the
designated subject. While the panel found that in 2010 only 26% of Kansas high school

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graduates met the ACT benchmarks in all four areas—English, math, reading, and
science—the State argues this performance is comparable to other states.

But the 2010 ACT scores support the panel's finding that "the achievement gap is
apparent by considering the number of students who meet the ACT Benchmarks." The
panel found that in College Algebra, 51% of all Kansas students meet the ACT
benchmark, while for African Americans the figure is 19%. The record reveals that for
Hispanic students, this number is 31%. The panel also found that in College Biology,
34% of all Kansas students meet the benchmark but for African Americans the figure is
9%. According to the record, this figure is 16% for Hispanics. In English Composition,
79% of white students meet the benchmark; the figure is 52% for Hispanics, and the
panel found the figure for African Americans is 40%. Unlike the KSDE, the ACT does
not maintain data for ELL, disabled, and free and reduced lunch groups for comparative
purposes.

Graduation rates

In pointing to high school graduation rates as outputs demonstrating constitutional
adequacy, the State emphasizes they have improved in all groups and overall from 80.7%
in 2010-2011 to 85.5% in 2013-2014. We judicially notice that this number was reported
as 85.7% in 2014-2015. Plaintiffs respond that in 2010-2011, 24.8% of all Kansas
students could not graduate in 5 years.

But as was shown with the scores of student proficiency testing such as KSDE,
NAEP, and ACT, plaintiffs argue that a significant gap exists between all students and
certain subgroups, even if the graduation rates for all students may have increased. In
2014-2015, only 14.3% of all students tracked were unable to graduate in 4 years,
whereas 21.3% of Hispanic and African American students, 22.8% of ELL students and

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those with disabilities, and 22.5% of students receiving free and reduced lunches were
unable to do so.

On track for college

Beyond high school graduation rates, however, we observe that—as numerous
experts testified at trial—in today's society, a college education is important to obtaining
a competitive place in a modern economy. See Gannon v. State, 298 Kan. 1107, 1166,
319 P.3d 1196 (2014) (Gannon I) (Rose standards include "'(vi) sufficient training or
preparation for advanced training in either academic or vocational fields so as to enable
each child to choose and pursue life work intelligently; and (vii) sufficient levels of
academic or vocational skills to enable public school students to compete favorably with
their counterparts in surrounding states, in academics or in the job market. [Emphasis
added.]'"). Accordingly, in 2014-2015, KSDE began to measure whether a student was
performing at a level that was considered "on-track for college success."

The following chart shows the percentage of students considered on track by the
KSDE during the 2014-2015 and 2015-16 school years according to grade and
subgroup—and now including disabled and free and reduced lunch students. As the chart
demonstrates, scores have changed from one year to the next. But what has not changed
is the existence of an achievement gap between all students and all the subgroups.

Using high schoolers as an example, of "all students" tested in 2015-2016, 31.9%
were on track to be college ready in ELA compared to 12.2% for African Americans and
6.2% for ELL students. For math, 24.2% were on track compared to 11.2% for both
Hispanic and free and reduced lunch students. Per the chart, the gap between all students
and the subgroups exists for eighth graders and fourth graders as well.

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 4th Grade 8th Grade High School
ELA/Reading (% College Ready) 2014-2015 2015-2016 2014-2015 2015-2016 2014-2015 2015-2016
All Students 55.4% 53.0% 29.8% 31.0% 31.8% 31.9%
African Americans 32.4% 26.0% 12.8% 12.0% 12.3% 12.2%
Hispanic 37.4% 36.0% 14.6% 16.7% 16.4% 16.7%
ELL 31.5% 29.2% 8.5% 9.9% 5.6% 6.2%
Disabled 24.9% 24.0% 7.7% 7.4% 7.6% 8.0%
Free & Reduced Lunch 39.8% 37.2% 16.6% 16.8% 17.8% 17.8%

Math (% College Ready)
All Students 35.8% 37.4% 23.0% 25.7% 24.7% 24.2%
African Americans 14.8% 13.5% 8.1% 8.5% 9.0% 8.8%
Hispanic 19.8% 20.3% 10.2% 13.3% 12.1% 11.2%
ELL 16.5% 17.1% 7.4% 9.8% 6.6% 6.1%
Disabled 14.4% 15.4% 4.4% 5.2% 4.0% 4.3%
Free & Reduced Lunch 21.8% 22.8% 11.2% 12.7% 12.0% 11.2%

We complete our outputs examination by concluding that, at a minimum, the
results on various standardized tests reveal that an achievement gap, or proficiency gap,
found by the panel to exist between "all students" and certain subgroups persists as of
school year 2015-2016. And the numbers of all students failing to reach proficiency in
core subjects each year continue to be significant.

The panel concluded that student achievement demonstrated CLASS's
implementation was not reasonably calculated to meet the Rose standards—so CLASS
was inadequate and unconstitutional. Based upon its finding that a correlation existed
between funding and achievement, the panel determined the inadequacy was caused by
underfunding. It based its determination in part upon the legislatively commissioned LPA
study—whose mission included determining the amount of funds required to meet the
standards then codified at K.S.A. 2005 Supp. 72-1127, which we found paralleled the
Rose capacities—and who concluded that more funding was needed to meet them. As a
result of this and other findings, the panel determined that more money was needed to
make the inadequate CLASS legislation constitutional.

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 We agree, based upon the demonstrated inputs and outputs found by the panel and
those contained in the updated standardized testing results which we have observed are
not inconsistent with its findings. We independently conclude as a matter of law that
through its implementation, CLASS is not reasonably calculated to have all Kansas K-12
public school students meet or exceed the Rose standards. See Gannon I, 298 Kan. at
1170 (constitutional inadequacy is a question of law). We reach this conclusion even if
we consider the State's "record high levels" of funding from all sources during this time,
i.e., that which the panel either disallowed or heavily discounted.

This is an unfortunate conclusion to have to draw because the people of Kansas
have emphasized the importance of public education since territorial days. "The Organic
Act, an Act to Organize the Territory of Kansas § 34 (1854), and the Act for the
Admission of Kansas Into the Union, § 3 (1861), included provisions providing that
certain sections of land be reserved for educational purposes." U.S.D. No. 229 v. State,
256 Kan. 232, 239, 885 P.2d 1170 (1994). The ordinance to the constitution adopted by
the Wyandotte Convention in July 1859 contained eight sections, three of which—
sections 1, 6, and 7—dealt with establishing or supporting Common Schools.

The importance of public education to Kansans is further highlighted by its
specific position as Article 6 in the people's constitution that was ratified by the electors
of the state in October 1859 and became law upon the admission of Kansas into statehood
in 1861. U.S.D. No. 229, 256 Kan. at 239. Article 6 is preceded only by the articles
creating the three branches of government, elections, and suffrage—without which the
three branches could not be populated. "[O]nce the branches are established and their
seats filled, it appears education is the first thing on the agenda of the new state." Montoy
v. State, 278 Kan. 769, 776I, 120 P.3d 306 (2005) (Montoy II) (Beier, J., concurring). So
"[o]ur constitution not only explicitly provides for education; it implicitly places
education first among the many critical tasks of state government." 278 Kan. at 776I
(Beier, J., concurring).
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 The Kansas Legislative Council expressed much the same 40 years earlier when it
stated that the propriety of an education article in a state constitution

"[I]s found in an historic precedent of the people's desire to speak on the subject. The
people wish to say something in their constitution concerning education because
education is vital to their interests. Thus, by speaking in this fashion, the people secure to
themselves what is of first importance by placing binding responsibilities on the
legislative, executive, and judiciary departments." (Emphasis added.) Kansas Legislative
Council, The Education Amendment to the Kansas Constitution, p. 2 (Publication No.
256, December 1965).

This history and accompanying rationale have helped lead this court to previously
conclude that for Kansans, children "'are our state's most valuable renewable resource.'"
Montoy v. State, 279 Kan. 817, 845, 112 P.3d 923 (2005) (Montoy III) (quoting Hoke Cty
Bd. of Educ. v. State, 358 N.C. 605, 616, 599 S.E.2d 365 [2004]).

MISCELLANEOUS

The plaintiffs are not entitled to attorney fees.

In the plaintiffs' initial brief submitted on the issue of adequacy, they requested
this court award them attorney fees. We reject this request for the same reason we
rejected their similar request during the equity phase of this case as discussed in our
Gannon II and III opinions.

The plaintiffs and the State have indicated a motion for attorney fees is currently
pending before the panel. We observe nothing in the record demonstrating the panel has
ruled on such a motion or that the plaintiffs have cross-appealed any decision on such a
motion.

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 As we held in Gannon II and III, requests for attorney fees raised for the first time
in an appellate court must be made by motion according to Supreme Court Rule 7.07(b)
(2017 Kan. S. Ct. R. 50). Gannon v. State, 303 Kan. 682, 733-34, 368 P.3d 1024 (2016)
(Gannon II); Gannon v. State, 304 Kan. 490, 517, 372 P.3d 1181 (2016) (Gannon III).
The plaintiffs have not submitted such a motion. Accordingly, their request for attorney
fees is procedurally insufficient and will not be considered. Gannon II, 303 Kan. at 733-
34 (merits of plaintiffs' motion for attorney fees raised for the first time on appeal would
not be considered where request did not conform to Supreme Court Rule 7.07).

We have considered the parties' other arguments and conclude they have no merit
or are now moot.

Remedies

Although the panel declared CLASS failed the Gannon test, it did not implement
any specific order requiring increases in state spending on K-12 education. But it did
thoroughly review expert opinion, including the findings from the 2006 LPA cost study
that was commissioned by the State to develop an estimate of what would be required to
bring the state into compliance with Article 6.

After reviewing the results of these studies and other trial evidence, the panel
concluded that a BSAPP amount near $4,654 might satisfy the Article 6 requirements—if
the weightings included in the state financial aid formula were increased to align with at
least the weightings suggested by the LPA study's consultant. It also determined that at
least a $4,980 BSAPP was required if LOB funds continued to be used, in part, to satisfy
Article 6. But as the State points out, for these BSAPP amounts the panel noted that both
the LPA and A & M studies arrived at their estimates of required funding by assuming
the desired education was funded exclusively through state financial aid, i.e., through
78
BSAPP and its attendant calculations—not counting federal funds and funds they could
raise from LOB. So the panel's guidance is not complete.

We observe that for the issue of equity the State previously asked that our remedy,
if any, "should be limited to a declaratory judgment giving the legislature an opportunity
to cure any constitutional violations on its own." Gannon II, 303 Kan. at 734. In its briefs
and at oral arguments, the State renews that particular request on the issue of adequacy,
stating that if an adequacy violation is found, this court "should follow the same basic
approach as the Panel—i.e., issue a declaratory judgment with guidance for the
Legislature while at the same time allowing the Legislature both the flexibility and an
opportunity to revise the school finance system."

This request is consistent with what we said in Gannon III:

"[W]e do not dictate to the legislature how it should constitutionally fund K-12 public
school education; we only review its efforts to ensure they do not run afoul of the Kansas
Constitution. See Gannon II, 303 Kan. at 734-35. ("We . . . reaffirm[] the legislature's
power and duty to create a school funding system. . . . [W]e have also consistently
affirmed our own power and duty to review legislative enactments for constitutional
compliance.)." 304 Kan. at 500-01.

There is no one specific way for this funding to be achieved. So we must part
company with the panel insofar as it would limit the State to any specific system or
structure, such as the former SDFQPA, or refuse to consider funding other than
calculated through the BSAPP, such as local revenue sources like the LOB, KPERS, and
federal funds—for purposes of evaluating adequacy.

Our adequacy test, as described in Gannon I, rejects any litmus test that relies on
specific funding levels to reach constitutional compliance. 298 Kan. at 1170 ("[E]ven if a
legislature had not considered actual costs, a constitutionally adequate education
79
nevertheless could have been provided—albeit perhaps accidentally . . . ."). And we
acknowledge that the estimates of the various cost studies are just that: estimates. But
they do represent evaluations that we cannot simply disregard. 298 Kan. at 1170
("[A]ctual costs remain a valid factor to be considered during application of our test for
determining constitutional adequacy under Article 6."). Accordingly, the State should not
ignore them in creating a remedy.

We have previously held that "total spending is not the touchstone of adequacy."
Gannon I, 298 Kan. at 1172. So we reiterate that the legislature should focus instead on
creating a public education financing system for grades K-12 that—through structure and
implementation—is reasonably calculated to have all Kansas public education students
meet or exceed the standards set out in Rose and as presently codified in K.S.A. 2016
Supp. 72-1127. See 298 Kan. at 1172. While considering cures, the legislature should
also be mindful of the connection between equity and adequacy. 298 Kan. at 1199-1200
(explaining that although adequacy and equity are distinct components of Article 6, they
do not exist in isolation from each other, so that a particular cure of equity infirmities
may affect adequacy of the overall education funding system). See also Gannon II, 303
Kan. at 743 ("[A]ny other funding system it enacts must be demonstrated to be capable of
meeting the equity requirements of Article 6—while not running afoul of the adequacy
requirement.").

It also must be emphasized that our Gannon I test for adequacy is one of minimal
standards. Gannon I, 298 Kan. at 1170. Accordingly, once they have been satisfied,
Article 6 has been satisfied. See 298 Kan. at 1167. Whether the legislature satisfies the
test by exceeding the Rose standards is up to that deliberative body—and ultimately, the
people of Kansas who elect its members to office. See 298 Kan. 1158-61 (recognizing
that under Kansas Constitution many entities play roles in public education in Kansas and
describing their roles and interplay).

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 According to several high level public officials whose statements appear in the
record on appeal, the 2015 legislature essentially designed CLASS to freeze the status
quo to give itself 2 years to design and pass a replacement to the SDFQPA. Consistent
with those statements, the legislature set CLASS to expire on June 30, 2017. It is
therefore appropriate to continue our practice in this case of retaining jurisdiction and
staying the issuance of our mandate to give the legislature the full extent of the
opportunity it created with its own 2-years-plus deadline to craft a system of school
funding that comports with the constitution. Gannon I, 298 Kan. at 1198-99 (on March 7,
2014, remanding to panel for enforcement of affirmed equity rulings and allowing
legislature a reasonable time—by June 30 [approximately 110 days]—to cure the
constitutional deficiencies before the panel took action); Gannon II, 303 Kan. at 743 (on
February 11, 2016, staying issuance of mandate to give legislature a second, and
substantial, opportunity to craft a constitutionally suitable solution and minimize threat of
disruptions in funding for education; retaining jurisdiction of equity question and
requiring legislative cure by end of fiscal year: June 30); Gannon III, 304 Kan. at 527-28
(on May 27, 2016, holding legislative action did not cure inequities found confirmed to
exist in Gannon II, and continuing stay of mandate to afford legislature yet another
opportunity—until June 30—"to craft a constitutionally suitable solution").

Although we stay the issuance of today's mandate, we reiterate that any system of
school finance created by the legislature must comply with the Kansas Constitution. The
constitution is "the work . . . of the people," Anderson v. Cloud County, 77 Kan. 721, 732,
95 P. 583 (1908), and "is the supreme and paramount law, receiving its force from the
express will of the people." Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506 (1971).
And according to the people's constitution, the judiciary has the sole authority to
determine whether an act of the legislature conforms to their supreme will, i.e., is
constitutional. Atkinson v. Woodmansee, 68 Kan. 71, 75, 74 P. 640 (1903) ("The
constitution is the direct mandate of the people themselves. The statute is an expression
of the will of the legislature. Which shall this court obey?"). Quoting from the United
81
States Supreme Court's decision in Marbury v. Madison, 5 U.S. [1 Cranch] 137, 177, 2 L.
Ed. 60 (1803), the Atkinson court ultimately concluded that it must obey the will of the
people as expressed in their constitution. See Gannon II, 303 Kan. at 736.

So if by June 30, 2017, the State has not satisfactorily demonstrated to this court
that any K-12 public education financing system the legislature enacts is capable of
meeting the adequacy requirements of Article 6, then a lifting of the stay of today's
mandate will mean that the state's education financing system is constitutionally invalid
and therefore void. See Gannon II, 303 Kan. at 743-44. See also Gannon I, 298 Kan. at
1167 ("'"an act of the Legislature repugnant to the constitution is void"'") (quoting
Marbury v. Madison, 5 U.S. [1 Cranch] at 177); Atkinson, 68 Kan. at 82 (citing Federalist
Paper No. 78 of 1788 to state no legislative act contrary to the constitution can be valid).
Marbury itself declared that "[a]n act of congress, repugnant to the constitution, cannot
become a law." 5 U.S. [1 Cranch] 137.

We recognize the legislature has twice demonstrated its ability to cure
constitutional infirmities recognized by this court in the state's K-12 school finance
system. See Montoy v. State, 282 Kan. 9, 24-25, 138 P.3d 755 (2006) (Montoy IV)
(legislature's efforts in 2005 and 2006 constitute substantial compliance with prior orders;
appeal dismissed); Sup. Ct. Order, Case No. 113,267 (June 28, 2016) (finding legislation
cured equity constitutional infirmities in Gannon litigation).

This history, coupled with CLASS's long-scheduled expiration on June 30, 2017,
promotes confidence that the State can reach compliance with the adequacy requirements
of Article 6 by that date, i.e., the end of the 2016-2017 school year. As the State itself
argues, "because the CLASS Act expires on June 30, 2017, the Legislature likely will be
adopting a significantly revised or altogether new school finance system during the 2017
legislative session in any event." Indeed, several times in Gannon III we acknowledged
the legislature's intent to comply with constitutional equity requirements as expressed in
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its preamble to its recent legislation: "'The legislature is committed to avoiding any
disruption to public education and desires to meet its obligation.'" 304 Kan. at 525-27.

The panel's conclusion of CLASS's unconstitutionality is affirmed. Our order of
June 30, 2015, staying the panel's order remains in effect until further determination by
this court. We retain jurisdiction over the State's appeal and stay the issuance of today's
mandate through June 30, 2017.

Affirmed.

BEIER and STEGALL, JJ., not participating.

MICHAEL J. MALONE and DAVID L. STUTZMAN, Senior Judges, assigned.1

1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 113,267
vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616,
and Senior Judge Stutzman was appointed to hear the same case vice Justice Beier under
the authority vested in the Supreme Court by K.S.A. 20-2616.

83