01/23/2012

The Supreme Court of Washington Rules that State's Public Schools are Underfunded, but Defers to Legislature to Remedy Problem

On January 5, 2012, the Supreme Court of the State of Washington issued its opinion in McCleary v. State of Washington, a school funding lawsuit brought by parents, students and a coalition of community groups, school districts and education organizations. The court held that the state had failed to meet its constitutional obligations "by consistently providing school districts with a level of resources that falls short of the actual costs of the basic education program," but further held that because the "legislature recently enacted sweeping reforms to remedy the deficiencies in the funding system," the court would defer to the legislature's chosen means while retaining jurisdiction over the case to ensure progress.

The McCleary decision marked the first time the court had considered school funding issues since its opinion in Seattle School District No. 1 v. State. Decided in 1978, that lawsuit established much of the legal precedent relied upon by the court in McCleary, including the conclusion that because "the state [has] a paramount duty to make ample provision for the education of all children residing within the state's borders, the constitution has created a 'duty' that is supreme, preeminent or dominant. . . . Further, since the 'duty' is characterized as paramount the correlative 'right' has equal stature." It was these "rights" and "duties"-and the obligations arising from them-that the court sought to analyze in McCleary.

Article IX, section 1 of the Washington Constitution states: "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." The court explained that article IX conferred a positive constitutional right, meaning that it did not restrain government action but instead required it. The court stated that "in a positive rights context we must ask whether the state action achieves or is reasonably likely to achieve 'the constitutionally prescribed end.'" However, the court rejected plaintiffs' argument that article IX requires the state to guarantee educational outcomes. Acknowledging the "inescapable truth that certain factors critical to a student's achievement are simply outside the state's control," the court held that the "education" required under article IX "consists of the opportunity to obtain the knowledge and skills described" in prior opinions, legislation and regulations. The court expressly ruled "[i]t does not reflect a right to a guaranteed educational outcome."

Turning to the funding required under article IX, the court explained that the state's obligation to provide "ample" funding meant that public schools must be supported through "dependable and regular tax sources." The court rejected the state's argument that locally held special excess levies were "dependable and regular" because such levies depended upon the "whim of the electorate" and assessed property values in a particular area. The argument that federal dollars constituted "dependable and regular" funding met with slightly more success, with the court recognizing that federal funding defrays the cost of basic education offerings. Nevertheless, the court expressly reiterated that "the state retains the ultimate responsibility for fully funding its basic education program."

After an extensive review of the evidence presented at trial, the court opined that "this case confirms what many education experts and observers have long recognized: fundamental reforms are needed for Washington to meet its constitutional obligation to its students." The court, however, found that these "fundamental reforms" were already underway in the form of Engrossed Substitute House Bill (ESHB) 2261. That bill proposed several major reforms, including the broadening of the instructional program of basic education, adding voluntary full-day kindergarten, instituting new teacher certification requirements, and increasing yearly instructional hours. ESHB 2261 also established a funding formula work group to determine how the reforms should be funded and a local funding work group to address the issue of supplementing funding through local levies. While a specific funding formula was not created, ESHB 2261 was to be implemented through a phased-in approach by 2018.

On May 25, 2011, the legislature passed its operating budget for the 2011-2013 biennium. The court acknowledged that the budget funded some of the reforms, but was troubled by other "massive cuts" to education. The court viewed such cuts as a negative indicator of future legislative action: "Recent cuts to K-12 funding confirm that too much deference may set the stage for another major lawsuit challenging the legislature's failure to adhere to its own implementation schedule." Nonetheless, the court stated that "[o]rdering the legislature to do yet another cost study crosses the line from ensuring compliance with article IX, section 1 into dictating the precise means by which the state must discharge its duty." Having had "the benefit of seeing the wheels turn under ESHB 2261," the court explained that it "would be a mistake to disregard that progress now and require the legislature to return to the drawing board."

Ultimately, the court held that a "better way forward is for the judiciary to retain jurisdiction over this case to monitor implementation of the reforms under ESHB 2261, and more generally, the state's compliance with its paramount duty." The court felt this remedy "strikes the appropriate balance between deferring to the legislature to determine the precise means for discharging its article IX, section 1 duty, while also recognizing this court's constitutional obligation." Because the parties had not addressed the issue of how further monitoring should occur, the court requested additional briefing on the issue.

Stinson Morrison Hecker LLP partners John Munich and Jamie Boyer assisted with the expert witness portion of the state's defense. In total, the trial lasted for nearly three months, involved testimony from 28 state officials, educators and experts and required the introduction of over 500 exhibits.

Our attorneys have extensive experience successfully litigating all forms of education litigation, including constitutional challenges and school funding lawsuits. Please contact John Munich at jmunich@stinson.com or 314.259.4555 for additional information.