Constitutional Crisis? Not so much.

19 members of the Republican caucus in the Washington State Senate released an open letter today complaining about a “constitutional crisis” between the Legislature and the Supreme Court over the McCleary decision and the court’s recent order. While the order is politically and practically inconvenient, I don’t see any better way to get the state to comply with our paramount duty – to amply provide for the education of all children residing within our borders.

In dealing with the McCleary case the Supreme Court has taken measured steps to get the Legislature to comply with the paramount duty clause of the constitution. In every circumstance they have chosen the least intrusive measure they could have. Many members of the Republican caucus in the Senate seem to be upset about this and want to eliminate the court’s ability to enforce the constitution.

If Republicans want to change the system to avoid this kind of conflict they can either remove the ability to have the court enforce the basic tenets of the constitution, or they can remove the paramount duty clause. I don’t support either, and neither will the voters.

Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time. Sir Winston Churchill, Hansard, November 11, 1947

The constitution says that the state must make “ample provision” for the education of all students. The Supreme Court is the part of government that gets to interpret what the words in the constitution mean. This is true nationally, and also true in the states. They’ve specified a meaning to the word “ample” that is not crazy – in fact, it’s exactly what the Legislature said it means in HB 2261 and HB 2776. Since the Doran decisions in the early 80s we’ve believed that once spending was determined to be part of “basic education” we couldn’t reduce it for budgetary reasons. In McCleary the court is essentially enforcing that decision.

For 30 years we have allowed a larger and larger fraction of educator salaries to be paid by local levies. That works great in my district, but not so well in Yakima. This is contributing to the extreme regressive nature of Washington’s tax system. The constitution is also pretty clear that it’s the state’s responsibility to pay these salaries. I don’t see a way to interpret the constitution to allow requiring local taxpayers to bear a substantial fraction of the cost of “basic education,” something that is clearly the state’s responsibility. The court isn’t telling the Legislature HOW to solve the problem – they’re just saying that we have to solve it. In fact, they went out of their way to say that the Legislature isn’t required to change property taxes or the levy system in order to comply.

I see this order having three concrete changes to previous orders:

  1. The court set a hard deadline for resolving the personnel cost issue – the 2017-18 school year.
  2. They raised the question about funding classroom construction. We have not spent a lot of time thinking about this and are clearly going to have to take a run at understanding the need and changes in the formula. In the short run we have to ensure that there are enough classrooms for the class sizes we are funding in the budget.
  3. They imposed a nominal fine until we comply. In the scope of the K12 budget this is a very small number. I’ve commented in the press that I think it’s the opening ante from the court to show they are serious. Note that they didn’t change any distribution formulas or anything like that – they just sequestered some money inside the Treasury.

They also seem to have a misunderstanding of the class size changes we made. We can work this out with them.

In previous cases the court has declined to make changes to Legislative discretion, even when what we were doing was goofy. In the Federal Way case they declined to eliminate grandfathering of educator salary levels, even when the state made no argument that what we were doing had any rational basis. It’s actually completely arbitrary and capricious.

There are three branches of government in Washington, and we often have conflicts. We put lots and lots of strings onto spending rules so that the executive branch doesn’t do stuff we don’t want. We assume that the executive branch will comply, even though they don’t like it.  In this case the Legislature is not complying with reasonable interpretations of the constitution, and the Supreme Court is taking steps to ensure that we do. At each point the court has taken small steps, and usually the smallest step possible.

Conflict between courts and legislatures over school funding is not unique to Washington. It has played out in similar ways across the country over the past two decades, and I expect it to continue to do so.  Other states do not have the strong language our constitution does about school funding, so our court looks even more measured. In many states the courts have shut down parts of government by holding budgets unconstitutional with less egregious violations than we are committing.

[Updated at 1:50 8/21/15 to remove distractions from the main argument.]

Author: Ross

I am the Director of the Department of Early Learning for Washington State. I formerly represented the 48th Legislative District in the State House of Representatives, chairing the Appropriations committee and spent many a year at Microsoft.