You Got Schooled

The most hated judge in Kansas considers his words for a moment and then says, “I don’t know how to say this without sounding arrogant, and I don’t mean it that way.”

But to hell with appearances. Judge Terry Bullock knows full well what led him to the hot seat he now finds himself in. “There are people who have perfect pitch, and they’re meant to become singers,” he says, explaining what motivated him to seek the bench in the first place. “There are people who are quick and coordinated, and they make great athletes. I’ve always believed that my knack, my little niche, if you will, is to listen to a lot of stuff and very quickly find the peanut and figure out what to do.

“In short, it’s what I’m good at,” he says. “And I’m sure you can get a different opinion on that.”

Yes, you can. And you don’t have to look far.

Since Bullock declared on December 2 that the inadequate and unequal public funding of Kansas schools violates the state’s constitution — and gave lawmakers until July 1 to fix the system, suggesting that it might take $1 billion to do it right — he’s become a pariah to politicians and pundits across the state.

“Why is a judge doing this?” local conservative commentator Jack Cashill asked on a recent edition of Kansas City Week in Review. “He might as well tell the Legislature to add gay marriage [to the state constitution] and take out the Pledge of Allegiance while he’s at it. At some point, people somewhere have got to say, ‘No. We’re not going to listen to that judge.'”

“Increasingly, we’re seeing judges think that they can do it best,” state Attorney General Phill Kline told the Associated Press last December. “We’re getting courts that are forwarding their policy decisions rather than taking a look at the constitution. It provides for what is in political science terms an oligarchy, what I call a monarchy by committee.”

And the carping hasn’t come just from the Right. Governor Kathleen Sebelius, a Democrat, told the Wichita Eagle last month: “For taxpayers, that can be a very dangerous proposal to have a court essentially make decisions based not on knowing the situation or having responsibility for raising taxes, but just making mandates that shut down the schools unless you come up with a certain funding amount.”

For all the bluster, you’d think Bullock was a Supreme Court justice with a legacy complex.

He’s really just an ordinary county judge holding court in the Shawnee District Court in downtown Topeka, meting out justice in cases involving personal injuries, medical malpractice and business deals gone bad.

But because his courtroom is in the state’s capital, it’s the first stop for all lawsuits against the state itself.

And Bullock likes being right where he is. He says a state Supreme Court appointment, with its endless schedule of poring over briefs and writing opinions, would probably just bore him. He’d miss the drama of county court and the procession of litigants coming before him with problems large and small.

“I come down here every day, and I almost never do what I plan,” he tells the Pitch.

On a typical Monday morning, he convenes a pretrial meeting in a conference room adjacent to his office. Seated before him are two men, one a lawyer in a suit, the other a nonlawyer who has shown up on behalf of his mother, who is deep in debt to the company the lawyer represents. It’s a mundane case, but it has much in common with the school finance squabble. Like every lawsuit, it’s about people struggling to agree on the right course of action.

Bullock is dressed casually in a blue sweater and department-store khakis. He takes off his glasses and gently informs the man that he can’t represent his mother; only a lawyer can do so. “But I’m being lenient today because there’s a snowstorm and your mother is not well,” he says.

The meeting lasts just a few minutes, long enough for a hearing in April to be scheduled, one Bullock hopes will never occur. On his way out the door, he tells the men in a polite, country way, “You can stay in here for as long as you want and work it out. There’s coffee if you want it. And there’s coffee if you don’t want it.”

At his desk a few minutes later, Bullock says, “Everything works out better when folks have a hand in crafting the solution, as opposed to just having things imposed on them.”

He’d prefer that people figure things out on their own.

“Every time the litigation goes on in my courtroom, I consider it a defeat,” he says. “When I have to put on the robe and sit for days, I’m thinking, Where did we go wrong?”

That’s exactly what Bullock was thinking last October, when for eight days, he heard testimony from the state’s educators about the sad state of Kansas public schools. He responded with a ninety-page preliminary order that’s caused a furor throughout the state.

“One by one, these unsung heroes in the daily battle against ignorance looked the court straight in the eye and … said it breaks their hearts to see what the lack of funding does, especially to the vulnerable children,” the judge wrote. “In a word, this court believed them.”

The document’s frankness surprised many. You’d have to comb the files of courts across the Great Plains to find something similar. Bullock didn’t mince words. He called the state’s funding structure “troublesome” and “wholly lacking,” a “cruel hoax” that could leave some Kansans “diabolically frustrated.”

It was time, he observed, for legislators to fix school funding. And this time, do it right.

Bullock’s vitriol shouldn’t have come as a shock to anyone familiar with his history. The judge has been at the center of debates about Kansas school funding for more than a decade.

In 1991, forty Kansas school districts sued the state, alleging that unequal spending was hurting districts in poor areas. Bullock ruled in that case that the state’s constitution demands a “suitable” education for all children and told the Legislature to make it available to them. The decision stunned leaders across the state. Bullock declared that local taxes, which typically made up the bulk of school budgets, produced revenue that was actually state money and could therefore be redistributed by the Legislature.

Lawmakers fought the ruling for months. Several counties in southwest Kansas, protesting that their local property-tax revenues from mineral-rich land would be sent instead to poorer communities, held a symbolic secession.

But in the waning hours of the 1992 session, legislators agreed to a plan that they believed would address Bullock’s order. It set a ceiling on how much money districts could budget for each student, a little more than $3,600 a year. The law also added provisions to allow some districts additional (but limited) money to cover special needs, such as higher transportation costs and the higher cost of educating kids in small schools, as well as the needs of bilingual, special-education and other students the state says are “at risk” because of their economic status or home environments.

Bullock approved the plan, but legislators almost immediately began tinkering with it. Officials from Johnson County, one of the state’s wealthiest areas, won the right to spend more than $3,600 a child by raising local taxes. Conservatives from the state’s southwest region, where school districts are much smaller and are allowed to spend much more than $3,600 a student, pushed for and got a statewide reduction in property taxes. Under the lower tax-structure, the base-level per-pupil funding has increased only minimally.

Both of those developments put the squeeze on districts in the middle range, such as those in Salina and Dodge City, which were among the districts that challenged the 1992 law but were denied by Bullock. His decision was upheld by the state Supreme Court. But after Bullock dismissed another lawsuit in 2001 by the midsized districts, the state Supreme Court overruled him.

That sent the whole mess back to Bullock’s court, where he presided over days of testimony last October and then issued his caustic order. This time, he told lawmakers to stop the financial sleight of hand and fix the state’s funding problems.

But Bullock wonders if his blunt tone is having the desired effect.

“I honestly wonder if anybody has read it, because of some of the things they’ve [the media] written,” Bullock says of his controversial order. “Maybe it’s too long for them.

“I read these headlines: ‘Judge orders $1 billion.’ I didn’t write that,” he says.

The order does mention a billion dollars. But that’s the Legislature’s number, not Bullock’s.

After the Supreme Court kicked the case back to Bullock in 2001, state legislators authorized the hiring of a consulting firm to determine how much an equitable education system would cost.

The firm, Augenblick & Myers of Denver, asked the Legislature to define suitable. Officials from the Kansas Board of Education and the state’s Legislative Coordinating Council set some parameters on school curriculum, high school graduation requirements and state scholarship requirements.

For a year, researchers from the firm traveled the state, meeting with educators, considering all the variables — the needs of districts small and large, poor and rich.

In 2002, Augenblick & Myers reported that the state is $853 million short of funding the Legislature’s definition of suitable education.

But state officials argued against their own paid-for study, essentially saying that money didn’t matter.

They offered statistics suggesting that, on average, Kansas students fare better in school than their peers across the nation. Kansas test scores exceeded national norms. More young Kansans went on to college than their counterparts in, say, Arkansas.

“This argument is alluring, of course, because all of us wish all of our schools well and we are justly proud when Kansas ranks highly in any academic standing,” Bullock wrote in his order. “But what these broad, general statements obscure is the ugly truth hidden beneath them…. When these broad averages are disaggregated, it becomes clear that many categories of Kansas students (minorities, the poor, the disabled, and the limited English) are failing at alarming rates.”

He went on to cite statistics from testimony at the hearings in October:

Sixty-four percent of white eleventh-graders read at a proficient level, but only 42 percent of their Hispanic classmates do. For African-Americans, the proficiency level is 33 percent.

In math, just over half of the state’s white students are proficient, compared with 19 percent of Hispanics and 16 percent of blacks. For those of all races in poverty, math proficiency is a little over 22 percent.

“Even more troublesome,” he wrote, “is Defendants’ well-phrased and superficially attractive argument that even if one chooses to examine alarming student failure rates of Kansas minorities, poor, disabled, and limited English, one finds these failure rates compare ‘favorably’ with similar failure rates for such persons elsewhere…. This argument seems to the Court to be on par with the following statement: ‘Persons of color should be comforted by the fact that lynchings in Kansas are no more frequent than lynchings in many other states!'”

Bullock was a high school student when the U.S. Supreme Court ruled on Brown v. Board of Education, the Topeka case that ended legally enforced segregation in the nation’s public schools.

“I had a little trouble at first understanding the notion of segregation,” he tells the Pitch. He thought it was a Southern thing. A Hispanic family lived across the street from him in rural Morris County, and the children attended school with him. There were no blacks in his town, but a few African-Americans lived in Council Groves, the county seat. They shared the public facilities with their white neighbors, he says. “I grew up with that not being an issue.

“To my folks, people were just folks,” he adds. “There were good ones, and there were bad ones. My parents were very accepting, open-minded folks.”

Bullock’s mother was a teacher. She taught in a one-room schoolhouse in Diamond Springs in Chase County, a former stop on the Santa Fe Trail. As the only employee in her school district, she was responsible for everything: 28 kids, 8 grades, English, math, science, history, stoking the wood stove in the morning, cleaning the blackboards before she left each night. Her contract required her to attend church three Sundays a month.

She had to quit when she married. But she continued an informal teaching career as a mother, supplying her children with lessons and tutoring neighbor kids. “We used to play school on rainy days at home,” Bullock says.

Those extra lessons paid off. Bullock graduated from Willsey Rural High School in 1957 as valedictorian. “I never used to mention that because it was such a small school. I didn’t think it was significant,” he says.

He attended Kansas State University, initially as a music major. As a member of a singing ensemble at the university, he toured Asia. But he didn’t believe he had the natural talent to make it as a professional singer; no perfect pitch. On the advice of a counselor, he switched majors to prelaw and went on to graduate summa cum laude, then entered law school at the University of Kansas, from which he graduated with distinction.

In the mid-1960s, courts became more active in shaping social policies. Chief Justice Earl Warren presided over a liberal majority on the U.S. Supreme Court. Their landmark decisions ushered in sweeping changes to the nation’s criminal justice system and extended civil rights.

Bullock admits that the Warren Court influenced his understanding of law and the role of the judicial branch. Yet he often says he thinks of himself as a conservative.

“It was more of a noble calling in those days,” he says of practicing law. “It was not a business, and it was not thought of as a business. It wasn’t about money. It was about service.”

His firm would take on criminal defense work free of charge. “We hadn’t even heard of the word pro bono,” he says. “It was our duty and our privilege. Every person who comes to a lawyer is in a jam. We saw it as our duty to help them. Doctors were the same way.”

Bullock has carried this populist philosophy into his career as a judge, which began in 1976. It shows in the opinions and orders he writes for the cases over which he presides. To make his decisions easier to understand, he hires assistants who haven’t had legal training. “I try to write these opinions for the people,” he says. “If you write for the lawyers, the people whose lives are affected may never get the point.”

It’s not hard to find people who are likely to be affected by Bullock’s order.

At Central Middle School in downtown Kansas City, Kansas, more than 91 percent of the kids here are, in the words of state bureaucrats, “economically disadvantaged.” More than half are Hispanic; nearly a third are African-American.

A visit to the old schoolhouse on a hill just off Central Avenue, an area that has historically been home to immigrants and the working poor, reveals a school like any other. The hallways are adorned with cheery student art and posters championing the kids’ achievements. In classrooms, students listen closely to their teachers’ lectures or work quietly on assignments or on computers.

In the school’s office, meanwhile, a principal is poring over budget spreadsheets, wondering how he can continue making things work with dwindling numbers.

“Our budget is so tight that every morning, five days a week, at 6:45, I meet with the treasurer,” says Principal James Antos. “We look at how much money we have, and we try to figure out how we’re going to make it, how we’re going to stretch it.”

He’s worked at the school for more than 20 years, and he’s never been in such a pinch.

Antos has to be creative to make things work. The school has a corporate partner, Colgate-Palmolive, which donates more than $10,000 each year. Because of the high poverty level among its students, the school qualifies for some federal grants. And all year, the kids sell candy.

Antos uses much of this money to meet special needs — on a Spanish interpreter who is constantly in demand, on an intervention specialist (whose counsel has halved the number of suspensions at the school), on a coach for standardized tests.

Antos is particularly fond of the school’s “Renaissance” program, which rewards kids for high achievement. The day before the Pitch visited, Antos presided over a celebration at which 400 of the school’s 700 students were recognized for their hard work and accomplishments. They won certificates and special privileges, such as the right to sit wherever they want in the school’s lunch room.

Seventh-grader Megan Harris was among the highest honorees, becoming a member of the platinum club. “It’s fun because you know you made it that far by yourself, and you did it,” she says, chuckling a little. She says she wants to be a “doctor or a pediatrician” when she grows up.

The extra effort appears to be working, judging by the Central students’ reading skills. In 2002, only one out of four black students and three out of ten Hispanic students read at or above proficient levels. In 2003, those statistics improved to 47 percent and 77 percent, respectively.

But in math, science and social studies, the scores of black and Hispanic students are significantly below state averages. And they’ve remained stagnant or declined in recent years.

Eight miles to the south, in Shawnee, Hocker Grove Middle School seems at first glance to have a lot in common with Central: classrooms full of well-behaved kids, teachers doing the most with limited resources, another principal worried about her budget.

Gillian Williams, Hocker Grove’s leader, is in the middle of crafting next year’s budget. If the news out of Topeka doesn’t improve, she’ll have to cut teachers next year. That means eliminating classes: humanities, perhaps, or beginning French and Spanish.

“In the past, students have always gotten their choices,” Williams says. “We have a tremendous amount of choices. Now the choices for kids are going to be really limited.”

But at Hocker Grove, which has many fewer economically disadvantaged kids, test scores in all subject areas are well above the state norm.

For Williams, tight budgets mean cuts to electives that parents desire because of the head start they can give college-bound kids.

For Central kids, the choices are starker. Many have difficulty understanding English. Others endure enormous challenges outside of school: working parents who are rarely home, a high divorce rate, relatives and peers who are involved in crime.

Middle school children’s brains are still developing, according to research cited in Linda Perlstein’s book Not Much Just Chillin’, in which she followed Maryland middle school students through a typical year. And stress can really mess with this process.

“The frontal lobes managing memory and learning also manage emotion, which, being the more developed at this point, wins the battle every time,” she writes. “If you’re sad that you never see your mom and dad, those emotions literally shrink the space available for your science test.”

Kansas’ school-finance law, passed in 1992 in the wake of Bullock’s first decision on the issue, is supposed to address such special needs. In addition to the amount districts can spend on each student — a little more than $3,800 now — the state allows money for extra costs, such as those incurred by smaller districts or districts with high transportation needs or large populations of bilingual, special-education and at-risk students.

But after eight days of testimony last October, Bullock determined that the formula for deciding these extra funds is out of whack.

When Larry Englebrick, the assistant superintendent for business services in the Kansas City, Kansas, School District, sits down to work out the budget each year, he has little freedom. He must abide by formulas that make little sense to him.

For instance, when he tries to figure out how much the district will require for bilingual students, he can’t simply count the bilingual kids and multiply that number by how much it costs to educate them. Instead, he must count how many certified bilingual teachers he has and how many hours kids are in classes with them. So if he has a student who speaks almost no English but attends only one class a day with a certified teacher, that student is counted as one-sixth of a kid.

“It’s a Catch-22,” Englebrick says. “We need more money to hire teachers for the students. But we need more teachers to get the money.”

Special-education funding is equally baffling. District administrators may increase their special-ed budgets based on a base-level teacher salary. But that base — just over $19,000 a year — is too low to attract special-ed teachers. “So we take the money out of our general fund to pay the difference,” Englebrick says.

Recently, state officials asked him to calculate how much it would cost to fund education reforms aimed at helping at-risk students. Englebrick made his calculations based on a plan that would extend both school days and the academic year and also allow more teachers to be hired. The plan would cost more than $24,000 a child per year — way above what the state formula allows. But after Bullock’s order in 1991, state legislators decided that at-risk kids needed just 5 percent more money than those who are not at-risk. A couple of years later, that number was raised to 10 percent, still well below the national average of 25 percent.

“There was no rational basis for these numbers,” says Kansas City, Kansas, state Rep. Bill Reardon, the ranking Democrat on the House Education Committee. “We didn’t look at any evidence of what was needed. It was politically motivated. It was, ‘What do we need to give to get [the bill] passed?'”

The state’s finance formula says more about Kansas’ political landscape than it does about the needs of different school districts. The state Legislature is basically a three-party system: Democrats, moderate Republicans and conservative Republicans. For a bill to pass in Topeka, it needs the support of two of these three groups. When it comes to school finance, “the moderates and conservatives have worked together and squeezed out the Democrats,” says Bruce Baker, a University of Kansas education professor who researches school funding.

Reardon often travels to conferences where he meets with legislators from other states. They tell him that Kansas’ funding formula is absurd. Reardon’s colleagues are especially surprised by the extra amount the state allows for smaller districts, more than twice the amount spent on each pupil in larger districts. Several recent studies, including one conducted by Syracuse University, show that this supplement is significantly out of scale for what is actually needed.

Reardon once went out to dinner with some of these out-of-state legislators, and when he told them that Kansas offers this extra money for elementary schools in smaller districts, they didn’t believe him.

“It shocked them,” he recalls. “One of them said, ‘I just don’t understand your rationale.'”

In his order, Bullock railed against the existing law’s strange math. “The current financing scheme was never based upon costs or even estimated costs to educate children but was in fact the result of a ‘political auction,'” he wrote.

Bullock found it “frankly astonishing” that educators themselves have very little say in how their budgets are set.

“There’s got to be hundreds
of ways to do this,” Bullock says of mending Kansas’ school finance system. He doesn’t pretend to have the right answer.

“First and foremost,” he wrote in his order, “the Court is satisfied that it should not and cannot write a new or different school funding scheme. That is a function of the legislative and executive branches of our government.”

But that’s not the way folks around the state see it.

Many school officials and legislators believe Bullock is telling them what to do. And because he has the authority to accept or reject whatever plan they come up with, they say he’s essentially telling them how to do it.

Bullock’s order has inspired a flurry of plans in Topeka. Some call for adding a billion dollars to school spending. Others, such as the plan Governor Sebelius unveiled in her State of the State address last month, call for much less.

Educators and legislators in Johnson County are working on a bill that would shift more control over school budgets to local school districts by allowing communities to choose to pay higher taxes for better schools. To level the playing field, these leaders suggest supplementing the tax collections of poorer districts with state money. That way, even school districts like Kansas City, Kansas’ will be able to raise as much money as their wealthier counterparts.

None of the plans with the best chances of passing does anything to change the lopsided formulas that give high bonuses to small districts while limiting extra funding for those with bilingual and at-risk kids.

Tim Rooney, budget and finance manager for the Shawnee Mission School District in Johnson County, concedes that his formula — the one that proposes subsidizing local taxes — freezes all districts’ budgets at their current levels “for political reasons.”

And according to Stuart Little, Shawnee Mission’s lobbyist, Rooney’s plan doesn’t include provisions to give additional state dollars to districts with large populations of bilingual, special-education and at-risk students — again, because of the political climate.

The bill that appears to have the most political support is one that would force the issue past Bullock’s court and up to the state Supreme Court. State officials, as defendants in the case, have already asked Bullock for this course of action. He refused. “JUST FIX IT!” he responded in his court order.

But legislators know that no matter what Bullock decides in July, someone is going to take the matter to a higher court.

“In spite what a lot of people think, I don’t think that we’re going to spend a lot of time on school finance,” says House Speaker Doug Mays, a Republican from Topeka. “We’re going to appeal.”

“The general thought is that we need to get a final decision from the Supreme Court as soon as possible,” state Sen. John Vratil, a Republican from Leawood, recently told the Associated Press. “All we have now is one judge’s opinion.”

Of course, all of this leads to Bullock’s definition of failure: judges intervening when others have failed.

He points out that in late January, the Arkansas Supreme Court ordered an immediate takeover of that state’s school system. “And that’s what I didn’t do,” Bullock says. “What happened in Arkansas is a failure of the political process. We don’t want that.”

What he wants, he says, is for legislators to step forward and do what the constitution requires them to do.

“If people can start focusing on children instead of focusing on me and tax bases, I think, when we get to that point, a lot of great ideas will start coming,” he says. “That’s what will unite us in spite of our differences.” “Sometimes small.”

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