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Published in Print: September 10, 2014, as It's Eyeball-to-Eyeball Over K-12 Funding in Washington State

Legal Feud Over K-12 Aid Continues in Washington State

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Tensions continue in Washington state's protracted legal battle over school funding, which has pitted the state's highest court against the legislature for well over two years.

Neither side disputes that state lawmakers have failed to live up to the demands made by the Washington Supreme Court in its McCleary v. State of Washington ruling, which found the state has failed to meet its constitutional obligation to "make ample provision" to fund schools.

But it remains unclear whether any subsequent contempt finding by the court—or the threat of court-imposed budgetary penalties—would speed or hinder legislative action when the 2015 session gets underway.

At a contempt-of-court hearing last week, it appeared that the justices might have run out of patience with the state and were mulling specific sanctions over lawmakers' inability to present a long-term plan to boost education spending to the court's satisfaction.

And lawmakers are also wary of what they view as potentially unconstitutional power grabs by the court through such sanctions.

As of late last week, the court had not decided whether to hold the state in contempt.

Expressing frustration with lawmakers' inaction, Justice Charles Wiggins asked state Deputy Solicitor General Alan Copsey, "What can we put into an order or say today that would encourage the legislature to actually deliver?"

Mr. Copsey told the justices that lawmakers understand the gravity of the situation, but should get the 2015 legislative session to solve the lingering, difficult problem of how they will pay for spending increases. The court would be harming that process, he argued, if it found lawmakers in contempt.

"There's no disagreement that education needs to be more fully funded," he said. "The question is, and has been, where will the money come from?"

Insufficient Progress

In its January 2012 McCleary ruling, the high court ordered lawmakers to dramatically increase their funding for schools, and gave them until 2018 to do so.

The state's 2013-15 biennial budget—the first two-year budget approved since the McCleary ruling—added $982 million to K-12 spending. Plaintiffs, including districts and parents representing children in public schools, dispute that figure and claim that it was actually only a $649 million increase because of concurrent reductions to cost-of-living increases for school employees.

According to estimates based on legislation passed in 2009 and 2010 designed to fully fund schools, lawmakers might have to increase their education spending by an additional $3.5 billion to meet the funding commitment by 2018.

In the meantime, the high court has retained jurisdiction over the case. During periodic reviews since the 2012 ruling, the justices have been skeptical of legislators' efforts to comply with the court order. For example, they said that the $982 million increase in the 2013-15 biennial budget represented only a 6.7 percent increase from the spending level the court found unconstitutional in 2012.

Twice the court has ordered the state to present a long-term plan showing how it will fund education at constitutional levels. But lawmakers, despite saying they will rely on the bills passed in 2009 and 2010, have not done so to the court's satisfaction.

At last week's hearing, Mr. Copsey said lawmakers' struggles with education spending did not automatically mean the legislature had been "thumbing its nose" at the court. But Thomas Ahearne, an attorney for the McCleary plaintiffs, said that lawmakers' continuing action should only lead the court to one conclusion.

"Call a spade a spade," Mr. Ahearne told the court. "They're in contempt. Don't be afraid to say the word contempt."

Mr. Ahearne said that the court should subsequently identify the sanctions it will impose on the legislature if they don't present a plan for fully funding public schools by the end of this year.

In a June order, the justices outlined a list of potential sanctions if the state were to be found in contempt. They included ordering lawmakers to approve specified funding increases, prohibiting any state funding for an "unconstitutional education system," and ordering the state to sell assets to use for its K-12 budget.

But state Rep. Chad Magendanz, a Republican and the ranking member on the House education committee, said after the hearing that the possibility of contempt charges and further sanctions represent a major distraction for legislators working on a compromise that would increase K-12 spending and make it more efficient.

"We don't want to throw something out there because we're in a hurry, because of pressure from the courts," Mr. Magendanz said.

Changes to Tax Policy

At the hearing, Justice James Johnson asked Mr. Copsey what the state's response would be if the court invalidated tax exemptions in the state's budget, and allowed lawmakers to reapprove them only after significantly boosting K-12 spending.

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Mr. Copsey replied that while it would be an "efficient" solution, it would violate the legislature's power over taxation: "I'm not sure that it's a constitutional remedy."

Last week, Gov. Jay Inslee, a Democrat, said ending tax exemptions will be crucial to bolstering the state's K-12 budget, the Associated Press reported.

Last month, state Superintendent of Public Instruction Randy Dorn urged the court in an amicus brief to use a "hammer" on lawmakers by blocking at least part of the state's 2015-17 budget if lawmakers don't make dramatically more progress in boosting K-12 spending during the 2015 legislative session. Five former governors, in a separate brief, also asked the court to give lawmakers until the 2015 session.

Mr. Dorn also said that if lawmakers don't make significant progress in 2015, the McCleary plaintiffs should be allowed to petition the state's highest court to block all nonessential state spending not directed at satisfying the ruling.

Vol. 34, Issue 03, Pages 18,20

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