THE STATE’S DUTY TO PAY FOR EDUCATION

(Tom speaks only for himself in this blog and not for the Court.)

I keep hearing and reading in the press, “The State Supreme Court is requiring the legislature to spend more on education.”  I think it is more accurate to say the Washington State Constitution requires the legislature to give adequate funding of education top priority.  Article IX, section 1, of the state constitution provides, “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.”  This provision is unique.  No other state constitution has a paramount duty clause.

We have a constitutional democracy.  All branches of government must comply with constitutional requirements.  It is uniquely the duty of the judiciary to ensure that all government entities perform their duties as required by the constitution.  Our state constitution was adopted nearly 100 years after the United States Constitution and the delegates had different concerns.  The delegates to the Washington Constitutional Convention had education on their minds big time.  There are many constitutional provisions pertaining to education and the funding of education.  For example, while the United States Constitution has what is known as the antiestablishment clause, Washington’s constitution has specific clauses dealing with the separation of church and state and specifically provides that no state money will be spent for religious instruction.  WASH. CONST. art. 1, § 11; art. IX, § 4; art. 26, § 4.  You can find the full text of our marvelous state constitution here: http://www.leg.wa.gov/LAWSANDAGENCYRULES/Pages/constitution.aspx.

We have visited the State’s paramount duty before.  In 1978, following a six week trial in which the trial judge held the State had failed to adequately fund education; the Washington Supreme Court held that the State had failed to adequately fund education.  Instead, the State had forced schools to rely upon a local levy system to make up for inadequate funding.  The levy system created disparate funding depending upon the location, demographics, and tax base of the school district.  When levies failed, schools were inadequately funded.   The Washington Supreme court agreed.  Seattle School Dist. No. 1 v. State, 90 Wn.2d 476 (1978)

The opinion held, among other things:

• Article IX, section 1, confers on children in Washington a positive constitutional right to an amply funded education.

• Article IX, section 1, is limited to K though 12 and does not apply to higher education.

• Article IX, section 1, applies only to basic education but basic education is not limited to reading, writing, and arithmetic; it means the basic knowledge and skills needed to compete in today’s economy and meaningfully participate in this State’s democracy.

• The program of basic education is not etched in constitutional stone.  The legislature has an obligation to review the basic education program as the needs of students and the demands of society evolve.

• The word “ample” in article IX, section 1, provides a broad constitutional guideline meaning fully, sufficient, and considerably more than just adequate.

• Ample funding for basic education must be accomplished by means of dependable and regular tax sources.

• The State has not complied with its article IX, section 1, duty to make ample provision for the education of all children in Washington.

• The court defers to the legislature’s chosen means of discharging its constitutional duty.

In response to our decision in Seattle School District the State adopted the Basic Education Act, a ratio funding approach to school funding.  Then, in1991, Governor Booth Gardner created the Governor’s Council on Education Reform and Funding (GCERF).  That council recommended a performance based system.  During this time there were numerous challenges brought against the State for failing to provide adequate education, but each time the State Supreme Court deferred to the legislature.

In 2005, the legislature initiated a new study called Washington Learns.  Washington Learns noted that “[t]oday, the K-12 education system is still financed by the thirty-year-old statutory formula of the Basic Education Act.”  McCleary v. State, 173 Wn.2d 477 (2012).

The report found that, despite the shift to a performance-based system more than a decade earlier, “the funding model for K-12 education has not been updated to reflect the new expectations and has not addressed the question of how to use resources most effectively in order to improve student outcomes.” Id. The report further surmised that “[s]table and significantly increased funding is required to support the evolving needs of our education system.”  Washington Learns concluded that the State was not meeting its duty to provide adequate funding in many areas.  In response to Washington Learns, the legislature adopted ESHB 2261, a comprehensive approach to adopting reforms and to provide adequate funding for basic education.  The plan was to phase in funding so that basic education would be fully funded by 2018.  http://apps.leg.wa.gov/documents/billdocs/2009-10/Pdf/Bills/Session%20Laws/House/2261-S.SL.pdf.   But instead of funding the improvements the legislature had adopted to provide adequate funding of education in ESHB 2261, the legislature began reducing funding to schools.

A group of school districts, individuals, and community members brought the McCleary lawsuit claiming the State was not fulfilling its constitutional mandate.  The lawsuit proceeded to trial and, as in the 1978 case, the trial judge found that the State was not meeting its duty to adequately fund basic education.  The Washington Supreme Court agreed and has given the State until 2018 to fully fund basic education.  It is not the court’s role to decide how to adequately fund basic education.  But it is the court’s role to interpret the state constitution.  From a constitutional analysis point of view, this is not rocket science.  It is fundamental that the legislature must first fund all constitutionally required functions before funding non-mandated programs.  The paramount duty clause means education must be the State’s highest priority.   The founders used the word “ample” which has reasonably been interpreted to mean the State must adequately fund education over all other state funded programs.  Inasmuch as it was the legislature’s plan to adequately fund basic education by adopting ESHB 2261, the court is using the legislature’s own plan as a benchmark to measure progress.

No one envies the state legislature in today’s budget crisis.  But one year after the court’s decision in McCleary, the State reported to the court that it had managed to reduce the amount of budget reduction to education.   The State was still going backward, not forward in terms of funding education while still funding non-constitutionally mandated programs.  The court directed the State to provide a plan for full funding of ESHB 2261 by 2018; a plan with sufficient detail that the court could measure progress.

In my view, the court has never told the legislature it needed to spend more on education.  The court has simply told the legislature it must follow the constitution and that education must be its top priority and that it must adequately fund basic education.   Moving to my health, both Judy and I have responded well to maintenance chemotherapy.   The tumors have all been reduced in size or disappeared altogether.  The side effects of my chemotherapy are daunting (pain, extreme fatigue, nausea, peripheral neuropathy).  Fortunately, because my cancer was retreating I was able to go off of chemo for a while.  As I write, it has been three weeks since I have had chemo and will not for another three weeks.  Hopefully that will give me time to heal and for my immune system to rebuild.  Right now, May 1, 2013, I feel the best I have felt since January.