The Temple of Justice in Olympia.
Legislators who sought or were harnessed with a seat on the Washington State Joint Select Committee on Article IX Litigation are working in a valley of high visibility, confusing authority postures, and…an election year. We should go no further without appropriately mentioning that at the end of any decision train are the students of Washington State’s K-12 system; our future. The Select Committee is the pivot point for required reports to a demanding Supreme Court regarding adequate funding for public schools, new reforms, and everyday operational policies. The Court wants an answer.
The Joint Select Committee recently approved an education report detailing some actions taken by the Legislature in response to the ruling from the state’s Supreme Court that lawmakers are under-funding basic education. Whether or not the Court will consider the report adequate – which they likely won’t – is yet to be seen, though some experts claim that they have no legal means of enforcing the issue anyway.
How Did The Court And The Legislature Get Here?
In 2012 the Washington State Supreme Court ruled in McCleary v. State that lawmakers are violating the Washington State Constitution by failing to live up to the “paramount duty” of amply funding Kindegarten through Grade 12 education. In January 2014, just days before the start of the legislative session, the court released a new order giving more specific details of what state lawmakers need to do in order to bring the state’s budget in line with constitutional requirements.
In response to this order, the Joint Select Committee was created; a bicameral, bipartisan committee tasked with submitting reports to the Supreme Court detailing specific plans and actions on how the state will come in compliance with the order by 2018, the deadline set by the Court. The newest report, due and released last week, makes it clear that lawmakers aren’t in agreement on how to move forward.
What Does the Report Say
Although the committee admits within the report that; “There are profoundly different political and policy perspectives within the 147 members of the Legislature on how best to proceed to meet the State’s Article IX duty”, the committee claims that reaching a consensus on educational policy and funding “is possible within the Legislature, as demonstrated by the passage of E2SSB 6552.” “The Legislature recognizes, as does the Court, that the remaining enhancement targets must be met by the statutory implementation date of 2018, which means that the pace of implementation must increase”, reads the report. The committee notes; “[The Legislature] has met the statutory deadline for full implementation of the new pupil transportation formula, and it has implemented the other enhancements required by SHB 2776, with full implementation of MSOC due in the 2015-16 school year.”
They continue; “Additionally, the Legislature has initiated the provisions of ESHB 2261 for instructional hours and the opportunity to earn 24 credits for high school graduation. Further, under the current statutory timeline, the levy base of school districts will automatically be reduced in 2018, and this will continue to foster a discussion about over-reliance on local levies and the level of state funding for basic education, including compensation.”
In a relatively subtle nudge to the Court, urging them to give the Legislature a little leeway as they sort things out, the committee suggests that the Court “give deep consideration to its response to the actions taken in 2014, that such response not be counterproductive, and that it recognize that 2015 is the next and most critical year for the Legislature to reach the grand agreement needed to meet the state’s Article IX duty by the statutorily scheduled full implementation date of 2018.”
How Will the Courts React
“The Supreme Court will be carefully considering the report, though they’ll need to wait another 30 days before they can respond”, Wendy Farrell, Communications Director for the Washington State Supreme Court, tells us. “As part of the briefing schedule, [those that put forth the initial lawsuit in the McCleary case] have the ability to respond to the report. The court will consider both what was filed today, and the other party’s response.”
According to Ms. Farrell, the court will issue their response (as either a ruling, or an order) sometime after that 30-day period. Attorney Thomas Ahearne, the lead plaintiffs’ counsel in the McCleary case, says the report is “unsatisfactory”, an opinion the court is likely to adopt.
We Are Not Alone
According to a March 17 report by the Center for American Progress, a liberal think tank, “There are currently 11 lawsuits over inequitable school funding pending in state courts.” Interestingly, “The focus of these lawsuits are shifting now that plaintiffs have statistical data that unequal outcomes in education.”
Many of the eleven are asking the legislative branch to answer to the court about how the problems will be solved. Alaska, Kansas, New Jersey, Rhode Island, Texas and Washington, among others, have had courts impose what some think is a legislative prerogative — budgeting.
This year the Kansaa Supreme Court gave the legislature until July 1 to resolve the funding problem and rejected the state’s argument that its ruling infringed legislative authority: “Our Kansas Constitution clearly leaves to the legislature the myriad of choices available to perform its constitutional duty; but when the question becomes whether the legislature has actually performed its duty, that most basic question is left to the courts to answer under our system of checks and balances.”
Is The Washington Supreme Court Overstepping?
In taking such a direct – and some would say heavy-handed – approach, the Court is bringing up serious questions of whether or not their actions are running afoul of the constitutional principle of separation of powers. The question of what, exactly, the court can do if the Legislature doesn’t act according to their wishes, is also an important one.
In a recent analysis commissioned by the Washington Policy Center, a conservative think tank, former Washington State Supreme Court Judge and former State Senator (Democrat) Phil Talmadge concluded, “To a large extent, the issue presented here is not one of whether the Court has the power to take steps to order compliance with its McCleary opinion. It does. The more basic and nuanced question is whether it is wise to exercise that power…While the Legislature certainly must heed the Court’s construction of article IX, § 1 and clearly define basic education and fund it, the Court should respect the Legislature’s exclusive constitutional role to organize K-12 education (article IX, § 2) and to tax appropriate funds (articles II § , VII, § 4).”
He noted, “In the absence of new revenues, if the Court simply redirected expenditures to K-12 schools, such a redirection must come at the expense of the two other significant components of the State budget–higher education or human services…The Court would hardly relish being the cause of distress to people in need or students in our universities and colleges.”
Other attorneys believe the issue is not as ambiguous. “The State Supreme Court can rule, can decide a question”, says James Lobsenz of Carney Badley Spellman Law firm in Seattle. “It can “monitor” the actions of the legislature to pass policy and budget provisions. The Court can tell the legislature over and over that it is not adequately funding basic education. And it can use its position and platform as a bully pulpit for the issue”, he says. “But, the Supreme Court of Washington cannot write a budget, and it cannot force tax increases or implement revenue proposals. In other words it cannot hold the Legislature in contempt of its ruling.”
If the Court can’t hold the Legislature in contempt, they may have no way of enforcing their ruling if lawmakers don’t comply. This may not stop the Court from proceeding with a contempt ruling anyway, which would quickly bring the case to the U.S. Supreme Court.
What If They Could Vote?
So, like it or not, and it doesn’t really matter which side you are on, this is a high level food fight. The real problem is all the tables have K-12 grade aged students sitting at them. The kids are getting lots of food on them, but no one gets to eat anything. It’s a good thing they cannot vote.
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