By Alice Day
WNPA Olympia News Bureau
A political thriller earns its debut March 23 at Olympia’s marble palladium when the Legislature’s leading producers-directors—Sen. Andy Hill, R-Redmond, and Rep. Ross Hunter, D-Medina—take the stage to introduce their awaited and unreviewed drama they claim will keep their fellow political thespians out of jail and solve the constitutional quandary hovering over them: full funding for basic K-12 education.
The Washington State Supreme Court is holding those political actors accountable for a solution to its mandate issued last fall in the wake of unyielding inaction by the legislative body: fund education or be sentenced for contempt.
Hunter, who serves as House Appropriations Committee chairman, said the Legislature has to fund education in a way that eliminates the state’s dependence on local levies for basic education costs.
“We have about a $2.5 billion obligation and I think we should fund it in equal annual increments,” Hunter said. “While the governor’s budget is clever, it’s not a good strategy for implementation on the ground.”
Gov. Jay Inslee rolled out his budget for the 2015-2017 biennium last December, including a $3.6 billion education package, where he dedicates $1.3 billion for class-size reduction in K-3 and all-day kindergarten.
Hunter says he’s not fond of the governor’s education proposal because it would prioritize class-size reductions in grades K-3 for low-income school districts, within the second year of this biennium and in doing so would overwhelm those schools with too many new teachers they would need to hire.
Instead, Hunter recommends a statewide class-size reduction in grades K-3, rather than a sudden reduction in class size only for low-income school districts.
“We need to phase in spending in a way that let’s people hire teachers gradually so you don’t wind up with a school having a huge number of new teachers at once,” he said.
Hill, who leads the Senate Ways and Means Committee, agrees that the governor’s education budget phases in reforms too fast.
“I would argue that funding everything today this year is a huge shock to the state budget and the school districts because they would have to hire more teachers and put in new classrooms,” he said. “That’s good reason why you would phase this in over the next three years.”
Hill says it’s difficult to pinpoint a dollar amount needed to comply with the McCleary mandate because the number fluctuates depending on the interest group you talk to and programs included in the calculation.
Each committee leader and his respective party are preparing to unveil their education budget solution March 23.
Outside of the Legislature
With few available specifics about the House and Senate education-budget proposals, special interest groups hope that what the governor lacks in his budget would be addressed by the two chambers.
Rich Wood, spokesperson for Washington Education Association, which represents more than 86,000 members, including certificated teachers and classified staff in school districts throughout the state, said the governor’s education budget fell short of addressing class-size reductions in kindergarten through 12th grades and didn’t provide adequate compensation to attract and keep educators.
“Until the state begins to reduce class size, our class sizes are still going to be 47th in the nation,” he said. “Until the Legislature begins to seriously address the need for competitive professional compensation, our teachers’ pay is still going to be 42nd in the country.”
Randy Dorn, superintendent of Public Instruction for Washington State, says he expects the House budget to address what the governor’s budget didn’t fully address, specifically statewide compensation for all employees.
Dorn says the state cannot continue to rely on local levies to fund teachers’ salaries because levies are not uniform statewide and the courts have ruled in McCleary that levies are an unconstitutional way of funding basic education.
“Levies are so problematic because there are some districts that are at 36 percent and some are at 15 percent,” Dorn said. “It creates an unfair opportunity for kids.”
School boards are authorized to request local school funds through maintenance and operation levies for up to 36 percent of the total of districts’ state and federal revenues.
Because levy percentages vary statewide—depending on the property values within school districts—it can be a major cause of disparity in education standards and programs, Dorn cited.
Many school districts rely on levies as a funding source for basic-education programs, so this difference in levy percentages affects the amount of state and federal funding a school will get and as a result the programs the school district can provide.
Ben Rarick, executive director at the State Board of Education, says both the House and Senate budgets need to create a plan that addresses the use of local levies in basic-education funding.
“The governor’s budget was relatively silent on that issue and it strikes me that the significance of local levies in our current system is one of the major issues at play in the lawsuit,” he said, reflecting on the Supreme Court’s McCleary mandate.
In addition to the state’s K-12 education funding conundrum, Initiative 1351, which voters approved last November, requires class-size reduction through 12th grade. This is another issue the Legislature must address, but so far has ignored.
The Office of Financial Management estimates I-1351 would cost the state $4.7 billion through fiscal year 2019 and an additional $1.9 billion each year thereafter. Local school districts also face a financial burden under the initiative especially since they would need to create more teaching space and hire more teachers.
Potential sanctions
The state Supreme Court continues to play a dominant role in its McCleary mandate.
In September, the court found the Legislature in contempt for failing to make adequate progress in education funding and has postponed sanctions until the adjournment of the current legislative session this June.
The court hasn’t said what sanctions it may impose if the Legislature fails to adopt a plan that fully funds its mandate. However many outside critics are confident something will be done—by the Legislature and the court.
“The Court has been fairly patient with the Legislature,” said Andrew Siegel, constitutional law professor at Seattle University. “I think the plaintiffs and their supporters were upset that the court gave the state a period of years to ramp up and come up with a plan.”
Siegel doesn’t think the court overstepped in ordering K-12 funding to be raised to a level that meets its mandate. If the legislators meet their obligations or if they show good faith effort and come close to meeting their obligations, he believes the court will purge the contempt order. If not, Siegel believes the court will start imposing sanctions.
“My guess is that the court will start in a gradual way, like imposing small fines on the state as an entity or ordering some state property that’s not being used to be sold and the funds placed in the education fund,” he said.
Siegel says it’s difficult to compare Washington to other states like Ohio and Kansas, which in the past have also been held in contempt by their state’s supreme court for inadequately funding basic education, because Washington is in a bit of a pickle.
“The state lacks an income tax and has a referendum and initiative structure that makes it particularly difficult to raise new revenue,” Siegel said. “Washington’s revenue stream is much smaller that an equivalent sized state so it’s harder for the Legislature to do what the court has ordered it to do.”
Stephanie McCleary, one of the plaintiffs in the lawsuit, expressed her continuing frustration with the lack of change or improvement since the Supreme Court issued its ruling in 2010.
“It just seems to keep on going, and really I just have been surprised it was optional when there’s a ruling like that,” she said. “I didn’t realize they could keep dragging this on forever.”
Thomas Ahearne, attorney for the plaintiffs in the McCleary lawsuit, doesn’t believe the state will produce the $5 billion needed to fully fund education by the adjournment of the 2015 legislative session.
“My guess is that the state will move the deck chairs around on the Titanic as it’s sinking and put it all off until the 2017-2018 school year,” Ahearne said. “They will cut money in certain areas and take that exact money and use it as an increase in funding and then they will just point to the increase in funding and not the cuts.”
Ahearne says the state itself has already determined how much it will cost to fund K-12 basic education because two laws were already enacted in previous biennia.
“You have determined what reforms need to be done to close the achievement gap and you have told us how much it’s going to cost,” he said of legislators’ acts. “Just do what you have promised.”
He suspects that the House and Senate in their budgets will play accounting games.
“The state will add all kinds of feel-good reforms, make everything efficient and create better programs by imposing requirements on school districts that cost money,” Ahearne said. “But they’re not going to pay for it.”
Ahearne says the state’s Constitution makes it clear that it’s the paramount duty to amply fund the schools before any other government programs and options.
“There is plenty of money in our general fund today to fund our K-12 schools,” Ahearne said. “There’s not enough money to fund all of this non-paramount stuff and so if more revenue is needed, it’s needed to fund the non-paramount stuff that legislators like to spend money on.”
The timeline of the Supreme Court’s McCleary mandate
On Dec. 6, 2007, a lawsuit was filed in King County Superior Court against Washington State by the Network for Excellence in Washington Schools on behalf of Matthew and Stephanie McCleary and their two children in the Chimacum School District and Robert and Patty Venema and their two children in Snohomish.
The suit alleged that the state was not meeting its constitutional obligation to amply fund a uniform system of education.
The McCleary family’s two children, Carter and Kelsey, were 7 and 13 years old and attending Chimacum School District schools in Jefferson County when the lawsuit was filed. As the lead family in the court action, the family name remains affixed to the continuing legal drama.
Robbie and Halie Venema, ages 12 and 15, attended school in Snohomish County at the outset of this legal drama. Their family remains co-petitioners with the McCleary’s in the originating lawsuit.
The King County Superior Court ruled in favor of the petitioners. The state appealed.
Two laws were then enacted by the Legislature in the 2009-2011 biennium, which created a statewide education-funding formula, and also added new programs to the definition of basic education, which the state is obligated to fund under the state Constitution.
The state Supreme Court ruled on the McCleary case in January 2012 and found the state in violation of the Constitution because it was not amply funding basic education.
Then in September 2014, the Supreme Court ruled again, this time holding the state in contempt for failing to submit a plan that would fully implement the measures of basic education that the state Legislature outlined in the previous laws it passed to meet the court’s and constitution’s requirements.
If the Legislature does not adopt a plan that fully funds student transportation, materials, supplies, operating costs, all-day kindergarten and class size reduction in K-3 by the adjournment of the 2015 legislative session, the court will reconvene to determine whether it will impose sanctions or remedial measures.
