SPEAKER_00
Thanks for your work Tom and thanks for being here tonight.
I take it this is on?
Okay.
I was asked to give a 15 minute update on the McCleary v. State of Washington case which the Supreme Court issued their decision in 2012 but actually the update could be on the Seattle school district case which was issued in 1978. Because in that case, you are indicating, am I not talking loud enough?
Come a little closer like that.
Okay.
So in the Seattle school district case which was like over 40 years ago, the Supreme Court held the state system of school funding does not make ample provision for the education of the children residing within the district, that is the Seattle school district, and thus does not comply with constitution article 9 section 1. Fast forward 40 years, McCleary v. State of Washington case, the Supreme Court held the exact same thing.
The state has not complied with its article 9 section 1 duty to make ample provision for the education of all children in Washington.
The state has failed to meet its duty under article 9 section 1 by consistently providing school districts with the level of resources that fall short of the actual cost of the basic education program.
Let's go back to Seattle school district case again.
In that case the trial court had said legislature I don't trust you.
I don't think you are going to comply so I am going to retain jurisdiction.
What did the Supreme Court do in the Seattle school district case?
They said well we do not retain jurisdiction because we are confident the legislature will comply fully with its constitutionally mandated duty.
It is comply fully not comply-ish.
It is comply fully.
Well now let's go forward to the McCleary decision where the court said what we've learned from experience is that this court cannot stand on the sidelines and just hope the state meets its constitutional mandate.
A better way forward is for the judiciary that is the Supreme Court to retain jurisdiction over this case to monitor the state's compliance with its paramount duty.
So in the McClure case what happened?
This ruling now was back in January of 2012 and what the Supreme Court has required as part of their retaining jurisdiction is every year the legislature has to report to the Supreme Court to say look we are on track to full compliance.
So let's see the 2012 legislature's compliance progress the Supreme Court gave them an F.
2013 F, 14 F, 15 F, 16 F.
All these years the Supreme Court has reviewed what the state has done and said you guys are not on track for full compliance.
So what will the 2017 legislature, this is what is coming up now, this is going to be the showdown, what does the 2017 legislature need to do?
What will article 9 section 1 compliance require?
Because I keep saying article 9 section 1, article 9 section 1, what the heck is that?
Well that is article 9 section 1 of our constitution that says it is the paramount duty of the state to make ample provision for the education of all children residing within its borders.
Now in this case what the state's first argument was well let's look at that all children phrase.
You know people all across the country have tried and those kids in the lower socioeconomic strata they never make it.
So all children really can't mean all children and the Supreme Court said no. all means all, each and every child, no child is excluded at least in our state.
The next issue came up of well what does education mean and the state has said that well it is a basic education.
And we have basic education funding formulas and as long as we are funding our funding formula we are complying with the Constitution we are funding basic education.
And the Supreme Court said no education isn't defined by a funding formula it is the basic knowledge and skills that are needed to compete in today's economy and meaningfully participate in our state's democracy.
That is the purpose.
of an education.
And the state said well you know that's a bunch of fluff.
How the heck are you going to define what kind of skills, knowledge and skill kids need.
And the Supreme Court said legislature you've already done it.
When you passed House Bill 1209 which is now in the RCWS you set forth the read with comprehension, know and apply core concepts of math, science, etc.
You said what all kids need to know.
And you know what else you have done legislature?
You have established the essential academic learning requirements for our state.
I mean they are not optional academic learning suggestions.
There are essential academic learning requirements which specify what all students, not most, all students should know and be able to do at each grade level.
And we all know that the list of the nine specific categories of essential academic learning requirements that the state itself has specified.
So then we get to this ample provision part and what does that mean?
And the state had said that well you know ample that just means adequate.
And you know most school districts aren't going insolvent so obviously the funding we are giving must be adequate.
And the Supreme Court said no ample means considerably more than just adequate.
To comply with the Constitution you have to provide considerably more than just adequate.
Which then brings us to the most important phrase or one of the most important phrases is paramount duty bid.
And the state's argument had always been that paramount duty that just means like important consideration.
And you know we spend billions of dollars on education so it is clearly an important consideration we are complying.
And the Supreme Court said no, no duty actually means duty it is not a consideration.
The state must amply provide for the education of all Washington children.
And you know that word paramount it actually means paramount.
As the state's first and highest priority before any other state program or operation.
So that is what the Constitution means.
The McCleary mandate, the Supreme Court said in one sentence to make it perfectly clear, article 9 section 1 confers on children in Washington a positive constitutional right to an amply funded education.
Remember way back Brown v. Board of Education the Supreme Court said the Constitution confers on children a constitutional right to a desegregated education.
Our Supreme Court said in McClearing that our Constitution confers a constitutional right to an amply funded education.
And this court even emphasized the civil rights foundation of education and ample funding when it said education plays a critical civil rights role in promoting equality in our democracy.
And amply provided public education operates as the great equalizer in our democracy equipping citizens born into underprivileged segments of our society with the tools they need to compete on a level playing field with citizens born into wealth or privilege.
And summarized very succinctly education is the number one civil right of the 21st century.
And the Supreme Court made it very clear that what remains to be done to achieve compliance is undeniably huge.
And why does it say that?
Look at what the state itself told the Supreme Court.
The Supreme Court, the state told the Supreme Court that look in the 08-09 school year we are funding about $6,800 per kid.
But Supreme Court trust us by 2018-19 we will be funding over $16,000 per kid.
Trust us that is what we are going to do.
So what does steady progress look like through that?
Well steady progress would look something like this on the per pupil funding by the state.
And this is state funding above local levies, above federal funding.
This is the state funding above that.
What was our actual progress so far?
It's less.
And so that is why the Supreme Court said that what remains to be done in this last year that is remaining here, that blank year is undeniably huge.
So let's go to McCleary v. State of Washington and what the state, what the court has said is if the state's funding formulas provide only a portion of what it actually costs the school to pay its teachers, get its kids to school, keep the lights on, then the legislature cannot maintain that it is fully funding basic education through its funding formulas.
So what is on track for the 2017 legislature to comply?
Well they have to address do the state's funding formulas fully, not partially, fully fund your school district's actual cost to implement the components of the state's basic ed program.
That is transportation, the MSOCs, material supplies and operating costs, all-day kindergarten, K-3 class size reduction, the other components like the highly capable programs, special education programs, core 24 and compensation to attract and retain competent personnel.
Those are the components that the legislature itself has said is their basic education program and the legislature in 2017 is going to have to establish funding for those.
Transportation, right now we know that the transportation funding formula it funds the lower of last year's actual costs or statewide average whichever is lower.
That is not your actual costs this year.
material supplies and operating costs.
Those MSOCs are based on statewide averages and an old snapshot from the 07-08 school year.
that is not actual costs today.
All-day kindergarten K-3 class size reduction.
The funding formulas partially fund your actual compensation costs and they give partial assistance for some of the capital costs.
You can't have smaller classrooms if you don't have more classrooms.
You can't have all-day kindergarten instead of just half-day kindergarten without more classrooms.
The state Supreme Court's rulings have said the state has to be amply funding those as well but right now they are not.
All these other programs that are part of basic education, highly capable, special education, the ELL programs those are less than the actual student caseload and they are funded at part of the actual personnel cost.
They are not on track right now and then compensation to attract and retain competent personnel well again as you all know it is partial funding and there are significant teacher shortages even when you add local levy money and federal money on top of that.
So that is not even close to fully funding the actual cost.
Which then raises the last question of can the Supreme Court actually force the legislature to comply?
And the Supreme Court of Washington has said well look we have got all these options of what we can do to force you to comply.
And I am just going to focus on two of those, option number six by the Supreme Court is prohibit any funding on an unconstitutional education system.
Well what the heck does that mean?
Well for example does the court want to strike down every underfunded school statute.
That is the option that some people refer to as they are going to close the schools.
Well the purpose of a sanction is to force the legislature to actually obey the Constitution, obey the oath they took to uphold the Constitution.
You know other state Supreme Courts have done exactly that and I will pick out three examples Arizona, Kansas and New Jersey.
In each of those cases, each of those states the state Supreme Court said legislature our constitution requires you to be funding this particular program or this aspect of the public schools.
In those three states the legislature said what a lot of legislators here are saying is remember your basic civics with separation of powers you can't appropriate money out of the state treasury so you can't do anything nanny nanny boo boo.
In each of those three states the Supreme Court said well you know you are right we can't appropriate money out of the state treasury but we can invalidate unconstitutional laws and we have been telling you legislature the way you fund your school statutes is unconstitutional and so first day of school next year we are going to invalidate the school statutes in our state unless you comply with our order.
Arizona and Kansas they called themselves into special session and they actually appropriated the money to comply.
New Jersey the legislature said Supreme Court you are bluffing.
You are never going to do that.
And in New Jersey the first day of school rolled around and in New Jersey the school year is the same as the fiscal year so technically the first day of school is July 1. July 1 came around the Supreme Court said fine all the school statutes were invalidated so that you know the summer school kids got some time off.
The legislature reconvened and they had to impose some taxes and raise revenue so they could actually comply with the courts school funding ruling.
So that is what has happened in some other states.
Another option is this order any other appropriate relief.
Well what the heck does that mean?
I mean I think of that as like when I was a kid and me and my four brothers and sisters would be goofing around in the backseat of the car and you know mom would take the rear view mirror as she is driving and go don't make me come back there.
And we would all quiet down because we didn't want her to come back there even though if we thought about it for a second she really couldn't do that while she was driving.
But you know other appropriate relief what could that possibly be?
Well one of the Supreme Court justices actually suggested one of the things during the contempt hearing back in 2014 and that we could invalidate all the tax exemption statutes passed by the legislature because if the legislature is saying they are pleading poverty we don't have the money well there are about $15 billion of tax exemptions on the books they can invalidate those and what is important to remember here is invalidate the tax exemption statutes passed by the legislature not those by voter initiative because the sales tax exemption on food that is a voter initiative that is not the legislature.
So you can invalidate all the tax exemptions by the legislature and you are going to leave the sales tax exemption on food in place.
That is a big target because Washington state gives a lot of tax breaks.
Number one in the country for giving out tax breaks is the state of New York.
Number two and usually it is good to be ranked high but is the state of Washington.
We are number two in the entire country so that is a big target.
So that leaves us with the answer can this court force compliance?
Yes.
Lastly I am going to talk about then is what are the next steps under the Supreme Court's order of what is going to be happening next.
First, the 2000 regular session is coming up and the Supreme Court's order has said the state must enact appropriations to achieve full constitutional compliance by September 1 of 2018. Two, 30 days after the governor signs the budget the state has to file their report and legal briefing with the Supreme Court to say that they have done it.
30 days after that we file our brief, our response and I would be shocked if our response is going to be anything other than they haven't done it because I would be shocked if they have done it.
Step number four is after reviewing everything the Supreme Court says we will decide what to do.
That is sort of vague but what could that be?
It could be they could issue another order They could have another hearing like we've had hearings before.
They could ask for more briefing, fine.
They could appoint a special master and what a special master would be is basically the Supreme Court saying we don't do trials.
They'll send it down to a superior court judge and say hey you do a trial and figure out what the facts are, tell us what the truth is and we'll just go on whatever it is you say.
Or they could give up.
and there is a lot of pressure on the Supremes to just give up and you know I had that little map with Arizona, Kansas, New Jersey where the Supreme Court stood firm and made the legislature back down.
Well Ohio went through the same exercise and in Ohio the Supreme Court backed down and gave up.
So the question is going to be is our Supreme Court going to give up or not?
And that is all I have and I hope I stuck to my 15 minutes and I am happy to answer any questions if people have them but otherwise I will roll away.
Thank you very much.