Petrella v. Brownback, Nos. 13–3334

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtLUCERO, Circuit Judge.
Citation787 F.3d 1242
Decision Date01 June 2015
Docket NumberNos. 13–3334,14–3023.
PartiesDiane PETRELLA, next friend and guardian of minor N.P., minor C.P.; Nick Petrella, next friend and guardian of minor N.P.; minor C.P., Michelle Trouve', next friend and guardian of minor J.T., minor Z.T., minor N.T.; Marc Trouve', next friend and guardian of minor J.T., minor Z.T., minor N.T.; Meredith Bihuniak, next friend and guardian of minor S.B., minor O.B., minor A.B., minor E.B.; Chris Bihuniak, next friend and guardian of minor S.B., minor O.B., minor A.B., minor E.B.; Mike Washburn, next friend and guardian of minor A.W., minor R.W.; Laurence Florens, next friend and guardian of minor A.W., minor R.W.; Paul Erdner, next friend and guardian of minor M.E., minor A.E.; Julie Erdner, next friend and guardian of minor M.E., minor A.E.; Christophe Sailly, next friend and guardian of minor E.S., minor N.S.; Catalina Sailly, next friend and guardian of minor E.S., minor N.S.; John Webb Roberts, next friend and guardian of minor M.C.R., minor W.C.R.; Terre Manne, next friend and guardian of minor C.J.M.; Alison Barnes Martin, next friend and guardian of minor C.O.M., minor C.E.M.; Kurt Kuhnke, next friend and guardian of minor A.K.; Lisa Kuhnke, next friend and guardian of minor A.K., Plaintiffs–Appellants, v. Sam BROWNBACK, Governor of Kansas, in his official capacity; Derek Schmidt, Kansas Attorney General, in his official capacity; Ron Estes, Kansas State Treasurer, in his official capacity, Dr. Diane Debacker, in her official capacity as Kansas Commissioner of Education; Janet Waugh, in her official capacity as Chair of the Kansas State Board of Education; Kathy Martin, in her official capacity as a member of the State Board of Education; Sue Storm, in her official capacity as a member of the Kansas State Board of Education; Kenneth Willard, in his official capacity as a member of the Kansas State Board of Education; John W. Bacon, in his official capacity as a member of the Kansas State Board of Education; Dr. Walt Chappell, in his official capacity as a member of the Kansas State Board of Education; Carolyn L. Wims–Campbell, in her official capacity as a member of the Kansas State Board of Education; Jana Shaver, in her official capacity as Vice–Chair of the Kansas State Board of Education; Sally Cauble, in her official capacity as a member of the Kansas State Board of Education; David T. Dennis, in his official capacity as a member of the Kansas State Board of Education; Defendants–Appellees, and Evette Hawthorne–Crosby, next friend and guardian of minor B.C.; Joy Holmes, next friend and guardian of minor J.H. ; Jim Holmes, next friend and guardian of minor J.H. ; Jennifer Kennedy, next friend and guardian of minor O.K.; George Mendez, next friend and guardian of minor G.M.; Eva Herrera, next friend and guardian of minor D.H., minor G.H., minor K.H.; Monica Mendez, next friend and guardian of minor G.M.; Ramon Murguia, next friend and guardian of minor A.M.; Sally Murguia, next friend and guardian of minor A.M.; Ivy Newton, next friend and guardian of minor L.N.; Matt Newton, next friend and guardian of minor L.N.; Schelena Oakman, next friend and guardian of minor C.O.; Clara Osborne, next friend and guardian of minor N.W.; Misty Seeber, next friend and guardian of minor A.S., minor B.S.; David Seeber, next friend and guardian of minor A.S., minor B.S.; John Cain, next friend and guardian of minor L.C.; Becky Cain, next friend and guardian of minor L.C.; Meredith Gannon, next friend and guardian of minor L.G., minor A.G., minor G.G.; Jeff Gannon, next friend and guardian of minor L.G., minor A.G., minor G.G.; Andrea Burgess, next friend and guardian of minor J.B.; Martha Pint, next friend and guardian of minor C.P.; Darrin Cox, next friend and guardian of minor J.C. ; Lois Cox, next friend and guardian of minor J.C. ; Danie Eldredge, next friend and guardian of minor A.E.; Josh Eldredge, next friend and guardian of minor A.E.; Glenn Owen, next friend and guardian of minor A.O.; Ryan Rank, next friend and guardian of minor M.R.; Beulah Walker, next friend and guardian of minor Q.W.; Bianca Alvarez, next friend and guardian of minor M.A.; Norma Del Real, next friend and guardian of minor P.D., minor V.D.; Adriana Figueroa, next friend and guardian of minor T.F.; Rebecca Fralick, next friend and guardian of M.S.; Consuelo Treto, next friend and guardian of minor A.T.; Melissa Bynum, next friend and guardian of minor T.B.; Bryant Crosby, next friend and guardian of minor B.C., Defendant Intervenors–Appellees. Blue Valley Unified School District No. 229; Shawnee Mission Unified School District No. 512, Amici Curiae.

787 F.3d 1242

Diane PETRELLA, next friend and guardian of minor N.P., minor C.P.; Nick Petrella, next friend and guardian of minor N.P.; minor C.P., Michelle Trouve', next friend and guardian of minor J.T., minor Z.T., minor N.T.; Marc Trouve', next friend and guardian of minor J.T., minor Z.T., minor N.T.; Meredith Bihuniak, next friend and guardian of minor S.B., minor O.B., minor A.B., minor E.B.; Chris Bihuniak, next friend and guardian of minor S.B., minor O.B., minor A.B., minor E.B.; Mike Washburn, next friend and guardian of minor A.W., minor R.W.; Laurence Florens, next friend and guardian of minor A.W., minor R.W.; Paul Erdner, next friend and guardian of minor M.E., minor A.E.; Julie Erdner, next friend and guardian of minor M.E., minor A.E.; Christophe Sailly, next friend and guardian of minor E.S., minor N.S.; Catalina Sailly, next friend and guardian of minor E.S., minor N.S.; John Webb Roberts, next friend and guardian of minor M.C.R., minor W.C.R.; Terre Manne, next friend and guardian of minor C.J.M.; Alison Barnes Martin, next friend and guardian of minor C.O.M., minor C.E.M.; Kurt Kuhnke, next friend and guardian of minor A.K.; Lisa Kuhnke, next friend and guardian of minor A.K., Plaintiffs–Appellants
v.
Sam BROWNBACK, Governor of Kansas, in his official capacity; Derek Schmidt, Kansas Attorney General, in his official capacity; Ron Estes, Kansas State Treasurer, in his official capacity, Dr. Diane Debacker, in her official capacity as Kansas Commissioner of Education; Janet Waugh, in her official capacity as Chair of the Kansas State Board of Education; Kathy Martin, in her official capacity as a member of the State Board of Education; Sue Storm, in her official capacity as a member of the Kansas State Board of Education; Kenneth Willard, in his official capacity as a member of the Kansas State Board of Education; John W. Bacon, in his official capacity as a member of the Kansas State Board of Education; Dr. Walt Chappell, in his official capacity as a member of the Kansas State Board of Education; Carolyn L. Wims–Campbell, in her official capacity as a member of the Kansas State Board of Education; Jana Shaver, in her official capacity as Vice–Chair of the Kansas State Board of Education; Sally Cauble, in her official capacity as a member of the Kansas State Board of Education; David T. Dennis, in his official capacity as a member of the Kansas State Board of Education; Defendants–Appellees
and
Evette Hawthorne–Crosby, next friend and guardian of minor B.C.; Joy Holmes, next friend and guardian of minor J.H. ; Jim Holmes, next friend and guardian of minor J.H. ; Jennifer Kennedy, next friend and guardian of minor O.K.; George Mendez, next friend and guardian of minor G.M.; Eva Herrera, next friend and guardian of minor D.H., minor G.H., minor K.H.; Monica Mendez, next friend and guardian of minor G.M.; Ramon Murguia, next friend and guardian of minor A.M.; Sally Murguia, next friend and guardian of minor A.M.; Ivy Newton, next friend and guardian of minor L.N.; Matt Newton, next friend and guardian of minor L.N.; Schelena Oakman, next friend and guardian of minor C.O.; Clara Osborne, next friend and guardian of minor N.W.; Misty Seeber, next friend and guardian of minor A.S., minor B.S.; David Seeber, next friend and guardian of minor A.S., minor B.S.; John Cain, next friend and guardian of minor L.C.; Becky Cain, next friend and guardian of minor L.C.; Meredith Gannon, next friend and guardian of minor L.G., minor A.G., minor G.G.; Jeff Gannon, next friend and guardian of minor L.G., minor A.G., minor G.G.; Andrea Burgess, next friend and guardian of minor J.B.; Martha Pint, next friend and guardian of minor C.P.; Darrin Cox, next friend and guardian of minor J.C. ; Lois Cox, next friend and guardian of minor J.C. ; Danie Eldredge, next friend and guardian of minor A.E.; Josh Eldredge, next friend and guardian of minor A.E.; Glenn Owen, next friend and guardian of minor A.O.; Ryan Rank, next friend and guardian of minor M.R.; Beulah Walker, next friend and guardian of minor Q.W.; Bianca Alvarez, next friend and guardian of minor M.A.; Norma Del Real, next friend and guardian of minor P.D., minor V.D.; Adriana Figueroa, next friend and guardian of minor T.F.; Rebecca Fralick, next friend and guardian of M.S.; Consuelo Treto, next friend and guardian of minor A.T.; Melissa Bynum, next friend and guardian of minor T.B.; Bryant Crosby, next friend and guardian of minor B.C., Defendant Intervenors–Appellees.


Blue Valley Unified School District No. 229; Shawnee Mission Unified School District No. 512, Amici Curiae.

Nos. 13–3334
14–3023.

United States Court of Appeals, Tenth Circuit.

June 1, 2015.


787 F.3d 1248

Tristan L. Duncan, Shook, Hardy & Bacon, Kansas City, MO, (Zach Chaffee–McClure, William F. Northrip, Manuel Lopez and Scott E. Dupree, Shook, Hardy &

787 F.3d 1249

Bacon, Kansas City, MO; Jonathan S. Massey, Massey & Gail, Washington, D.C.; Laurence H. Tribe, Cambridge, MA, with her on the briefs), for Plaintiffs–Appellants.

Arthur S. Chalmers, Hite, Fanning & Honeyman, Wichita, KS, (Gaye B. Tibbets, Hite Fanning & Honeyman, Wichita, KS; Jeffrey A. Chanay, Office of the Attorney General for the State of Kansas, Topeka, KS; Mark A. Ferguson, Eldon J. Shields, Gates, Shields & Ferguson, Overland Park, KS, Cheryl L. Whelan, Kansas State Department of Education, Topeka, KS, with him on the brief), for Defendants–Appellees.

Alan L. Rupe, Lewis, Brisbois, Bisgaard & Smith, Wichita, KS; (John S. Robb, Somers, Robb and Robb, Newton, KS, with him on the brief), for Defendant Intervenors–Appellees.

Charles W. German and Daniel B. Hodes, Rouse Hendricks German May, Kansas City, MO, with him on the brief, for Amici Curiae.

Before KELLY, LUCERO, and HARTZ, Circuit Judges.

Opinion

LUCERO, Circuit Judge.

More than six decades ago, the Supreme Court declared school segregation in Topeka, Kansas unconstitutional. Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Since then, Kansas state courts have adjudicated numerous challenges to the state's school financing system, seeking to effectuate Brown 's ideals and the Kansas Constitution's mandate that school financing be “suitable.” Kan. Const. art. 6, § 6 (b). Through this history of litigation and remarkably direct communication between the state's three branches of government, Kansas has developed a school financing scheme that seeks to avoid “mak[ing] the quality of a child's education a function of his or her parent's or neighbors' wealth.” Montoy v. State, 282 Kan. 9, 138 P.3d 755, 769 (2006) (Rosen, J., concurring). Just last year, the Kansas Supreme Court reaffirmed that “[e]ducation in Kansas is not restricted to that upper stratum of society able to afford it.” Gannon v. State, 298 Kan. 1107, 319 P.3d 1196, 1239 (2014) (per curiam).

Displeased with the outcome of school finance litigation in state court, plaintiffs, parents of students in the relatively wealthy Shawnee Mission School District (“SMSD”), seek federal intervention to upend decades of effort toward establishing an equitable school finance system in Kansas. Adopting a kitchen-sink approach, they claim that aspects of the state's school financing regime violate their rights to free speech, to petition the government, to associate, to vote, to education, to equal protection of the laws, to direct the upbringing of their children, and to dispose of their property. Stripped to its pith, plaintiffs' position is that the U.S. Constitution requires the state of Kansas to grant its political subdivisions unlimited taxing and budget authority. We discern no support for their novel and expansive claims. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm the district court's orders denying plaintiffs' motion for a preliminary injunction, granting in part defendants' motions to dismiss, and denying reconsideration.

I

A

Since it was admitted into the Union, “Kansas has financed public schools through taxes and other mechanisms provided for by the legislature, not by local districts.” Unified Sch. Dist. No. 229 v. State, 256 Kan. 232, 885 P.2d 1170, 1175 (1994) (“USD 229 ”). Through most of

787 F.3d 1250

Kansas history, public schools were funded principally through local taxes, with school districts operating “pursuant to the powers and limitations granted by the legislature,” including “minimum ad valorem tax levies or floors as well as maximum levies or caps.” Id. at 1175–76. In 1937, Kansas began providing supplemental funding to school districts. See id. at 1176.

In 1966, the people of Kansas ratified amendments to the Kansas Constitution concerning education finance. Id. As amended, it provides that “[t]he legislature shall make suitable provision for finance of the educational interests of the state.” Kan. Const. art. 6, § 6 (b). Not long afterwards, a Kansas state court held the existing state education-financing statute unconstitutional.See USD 229, 885 P.2d at 1177 (citing Caldwell v. State, No. 50616 (Johnson Cnty. Kan. D. Ct., Aug. 30, 1972)). It concluded that the statute relied too heavily on local financing, “thereby making the educational system of the child essentially the function of, and dependent on, the wealth of the district in which...

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49 practice notes
  • Caldwell v. Univ. of N.M. Bd. of Regents, No. CIV 20-0003 JB/JFR
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 31, 2020
    ...556, 561 (D.N.M. 1995) (Campos, J.)("[T]here is no constitutional right to an education at public expense...."); Petrella v. Brownback, 787 F.3d 1242, 1261 (10th Cir. 2015). Turning to the second strand of substantive due process, "[e]xecutive action that shocks the conscience requires much......
  • Hernandez v. Grisham, No. CIV 20-0942 JB\GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 18, 2020
    ...at public expense ...."). The Tenth Circuit also has declined to recognize a fundamental right to education. See Petrella v. Brownback, 787 F.3d 1242, 1261 (10th Cir. 2015).Still, "education is perhaps the most important function of state and local governments." Brown v. Bd. of Ed. of Topek......
  • Koontz v. Watson, Case No. 17–4099–DDC–KGS
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 30, 2018
    ...U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). So, the right to such relief must be "clear and unequivocal." Petrella v. Brownback , 787 F.3d 1242, 1256 (10th Cir. 2015) (quoting Beltronics, USA, Inc. , 562 F.3d at 1070 ). "In general, ‘a preliminary injunction ... is the exception rath......
  • Gannon v. State, No. 113,267
    • United States
    • United States State Supreme Court of Kansas
    • March 2, 2017
    ...are calculated primarily using the now-repealed SDFQPA formula.’ " 303 Kan. at 706–07, 368 P.3d 1024 (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 evide......
  • Request a trial to view additional results
49 cases
  • Caldwell v. Univ. of N.M. Bd. of Regents, No. CIV 20-0003 JB/JFR
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 31, 2020
    ...556, 561 (D.N.M. 1995) (Campos, J.)("[T]here is no constitutional right to an education at public expense...."); Petrella v. Brownback, 787 F.3d 1242, 1261 (10th Cir. 2015). Turning to the second strand of substantive due process, "[e]xecutive action that shocks the conscience requires much......
  • Hernandez v. Grisham, No. CIV 20-0942 JB\GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 18, 2020
    ...at public expense ...."). The Tenth Circuit also has declined to recognize a fundamental right to education. See Petrella v. Brownback, 787 F.3d 1242, 1261 (10th Cir. 2015).Still, "education is perhaps the most important function of state and local governments." Brown v. Bd. of Ed. of Topek......
  • Koontz v. Watson, Case No. 17–4099–DDC–KGS
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 30, 2018
    ...U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). So, the right to such relief must be "clear and unequivocal." Petrella v. Brownback , 787 F.3d 1242, 1256 (10th Cir. 2015) (quoting Beltronics, USA, Inc. , 562 F.3d at 1070 ). "In general, ‘a preliminary injunction ... is the exception rath......
  • Gannon v. State, No. 113,267
    • United States
    • United States State Supreme Court of Kansas
    • March 2, 2017
    ...are calculated primarily using the now-repealed SDFQPA formula.’ " 303 Kan. at 706–07, 368 P.3d 1024 (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 evide......
  • Request a trial to view additional results

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