Historical review of Education Funding litigation in Washington State, with a comprehensive update of the on-going McCleary v. State of Washington case

2.  History of Education Funding & Litigation
 McCleary Case & Decision(s)
 Implementation of McCleary
 What about the future?
2

3.  “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.”
Article IX, Section 1
Washington State Constitution
3

4.  1976: Seattle School District files suit against
state
 1977: Superior Court Judge Robert Doran
finds for the school districts
 1977: Legislature adopts Basic Education Act
of 1977
 1978: State Supreme Court affirms Doran
decision
 1980: State increases K-12 funding share
4

5.  1983: Second Doran decision expands
“basic education” definition – special
education, remediation assistance and
transportation
 1987-88: Doran issues special ed decision
 1993: Legislature adopts Education Reform
Act of 1993
 1995: Legislature changes special ed
formula
5

6.  2005: The Network for Excellence in
Washington Schools (NEWS) is formed
◦ Comprised of 70+ organizations and school
districts committed to improving the quality of
public education in Washington
 2007: McCleary v. State of Washington filed in
King County Superior Court
 NEWS filed a lawsuit, asking the court to order the
State of Washington to live up to its paramount
constitutional duty to make ample provision for
the education of all Washington children
6

7. 7
0
2
4
6
8
10
12
State Funding Actual District Costs
Statewide Funding – all 295 School Districts
2007-08 School Year
State’s “basic
education” funding
Other State funds
School facilities
Classroom
teachers
Pupil transportation
Librarians, counselors,
safety personnel, health
Principals, etc.
Utilities, insurance, etc.
Extracurricular
Food service
Capital Project Fund
expenses
ASB Fund expenses
DollarsinBillions

8. 8

9. 9
Local levy revenue at the same level
as before Doran Decision
0.0%
10.0%
20.0%
30.0%
40.0%
50.0%
60.0%
70.0%
80.0%
90.0%
Percent of State and Local Revenue Sources
(excludes federal and other revenue sources)
State Revenue
Local Revenue
20.5%
Source: OSPI 5/10

10. 10
Local Levies as a Percent of
All School Districts’ Revenue
Source: Joint Task Force on Education Funding, 11/12

11.  2009: McCleary v. State of Washington heard
in King County Superior Court
 2010: Judge John Erlick rules for the
plaintiffs, declaring the State’s failure to fully
fund public schools is unconstitutional:
◦ “This court is left with no doubt that under the State’s
current financing system, the state is failing in its
constitutional duty. “
11

12. “State funding is not ample, it is not stable,
and it is not dependable…local school
districts continue to rely on local levies and
other non-state resources to supplement
state funding for a basic education.”
“Paramount means preeminent, supreme, and
more important than others. Funding K-12
education…is the state’s first and highest
priority before any other state programs or
operations.”
- Judge John Erlick
12

13.  Judge Erlick directed the Legislature to:
◦ “determine the cost of amply providing for
basic education and a basic program of
education for all children”
◦ “provide stable and dependable funding for
such costs of basic education”
http://1.usa.gov/1hnDDNU
13

14.  2009: Adopted ESHB 2261
◦ Redefined basic education and restructured
state’s education finance system
◦ Stated Legislature’s intent that a newly redefined
Program of Basic Education and the necessary
funding to support it be fully implemented by
2018
◦ Created the Quality Education Council to monitor
implementation
◦ Established a series of work groups to provide
implementation recommendations
14

15.  2010: Adopted SHB 2776
◦ Began implementation of new Prototypical School
Funding Model, as created in ESHB 2261
◦ Called for funding enhancements for: K-3 Class
Size Reduction; All-Day Kindergarten;
Maintenance, Supplies & Operating Costs (MSOC);
and Pupil Transportation
◦ Established a schedule for the enhanced funding
15

16.  2011: Supreme Court hears State’s appeal in
McCleary case
 2012 (January): Supreme Court unanimously
affirms trial court’s ruling. Court retains
jurisdiction in case to ensure the State
complies with its paramount duty
http://1.usa.gov/TRJ3cI
16

17.  Supreme Court rules:
◦ The State “has consistently failed” to provide the
ample funding required by the Constitution.
◦ “Reliance on levy funding to finance basic
education was unconstitutional 30 years ago in
Seattle School District, and it is unconstitutional
now.”
 Supreme Court Orders State to:
◦ “demonstrate steady progress” under ESHB 2261;
and
◦ “show real and measurable progress” towards full
Article IX, Section 1 compliance by 2018.
17

18.  2012 (July): Supreme Court issues Final Order
on Retention of Jurisdiction, requiring the
State to:
◦ file periodic reports summarizing actions to
implement ESHB 2261 and achieve compliance
with the Constitution; and
◦ show “real and measurable progress” toward
achieving full constitutional compliance by 2018
◦ http://1.usa.gov/SMTldi
18

19.  2012 (December): Supreme Court affirms that
“Year 2018 remains a firm deadline” for
constitutional compliance. Court Orders the
State’s 2013 compliance report to:
◦ set out the State’s plan in sufficient detail to
allow progress to be measured according to
periodic benchmarks between now and 2018;
◦ indicate a phase-in schedule for achieving its
mandate; and
◦ demonstrate that its budget meets its plan
http://1.usa.gov/SN0zOq
19

20. McCleary v. State
Implementing McCleary

21. 21
ESHB 2261 – Program Changes Required

22. 22
SHB 2776 – Funding Changes Required

23. 23
SHB 2776 Resource Phase-in
School Year 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18
1
Full-Day Kindergarten
Must be fully funded statewide by
2017-18
Phase-in based on FRPL
219
Schools
More
funding
can begin
More
funding
must
begin
Continues
to ramp
up
Continues
to ramp
up
Continues
to ramp
up
Continues
to ramp
up
Fully
Funded
2
K-3 Class Size Reduction
Must be fully funded statewide by
2017-18
Phase-in based on FRPL
$0
More
funding
can begin
More
funding
must
begin
Continues
to ramp
up
Continues
to ramp
up
Continues
to ramp
up
Continues
to ramp
up
Fully
Funded
3
Materials, Supplies,
Operation Costs (MSOC)
Must be fully funded by 2015-16
$ per student basis
More
funding
can begin
More
funding
must
begin
Continues
to ramp
up
Continues
to ramp
up
Funded at
new level
Funded at
new level
Funded at
new level
4
Basic Transportation
Must be fully funded by 2014-15
% of formula funded basis
More
funding
can begin
More
funding
must
begin
Continues
to ramp
up
Fully
Funded
Fully
Funded
Fully
Funded
Fully
Funded
Source: OSPI, 5/10

24. Joint Task Force on Education Funding must:
 Make recommendations for how the Legislature can
meet the requirements of ESHB 2261 and SHB 2776
 Develop a proposal for a reliable and dependable
funding mechanism to support basic education
programs—multiple options may be recommended,
but must recommend one preferred alternative
 Consider QEC recommendations (2012) for the
Transitional Bilingual Instructional Program
 Report recommendations by December 31, 2012
24
Education Funding Task Force

25. Subjects the Task Force considered:
 Phase-in schedule for funding program
enhancements:
◦ Maintenance, Supplies & Operating Costs (MSOC)
◦ Pupil transportation
◦ K-3 class-size reduction
◦ Full-day kindergarten phase in
 Recommendation(s) on phasing in other
enhancements:
◦ 24 credits for high-school graduation
◦ 1,080 hours of instruction for grades 7-12
 Recommendation(s) on changes to TBIP
 Recommendation(s) on paying for the new costs
25
Education Funding Task Force

26. 26
Four Senators Four Representatives Three Gov appointees
Democratic Caucus Democratic Caucus Jeff Vincent (Chair)
Sen. Lisa Brown Rep. Marcie Maxwell
Sen. David Frockt Rep. Pat Sullivan Susan Enfield (Vice Chair)
Republican Caucus Republican Caucus Mary Lindquist
Sen. Joe Fain Rep. Gary Alexander
Sen. Steve Litzow Rep. Susan Fagan
Alternates Alternates
Sen. Christine Rolfes (D) Rep. Cathy Dahlquist (R)
Rep. Ross Hunter (D)
Rep. Kristine Lytton (D)
Education Funding Task Force

27. 27
Education Funding Task Force
Adopted Spending Plan
Source: Joint Task Force on Education Funding, Final Report, 12/12

28. 28

29. McCleary v. State
Is the State making “steady progress”
toward full compliance with Article IX,
Section 1 of the Constitution?

30. 30

31. 3131
Initial McCleary Investment
2013-15 Operating Budget
Initial McCleary Basic Education Investment
2013-15 Operating Budget

32. 32Source: Network for Excellence in Washington Schools, 11/12

33. 33
Real and steady progress towards full funding
-- State Testimony vs. Actual Funding—
(Per Pupil State Funding)
Source: Network for Excellence in Washington Schools response to 2013 Post-Budget Filing, 1/14

34. McCleary v. State
The Supreme Court retained
jurisdiction in the case, requiring
annual compliance reports

35. 35
 The 2013-15 operating budget contains
“$982.0 million in enhancements to basic
education allocation formulas. Funding is
provided to address…full-day kindergarten;
early elementary class size reduction; pupil
transportation; and materials, supplies, and
operating costs (MSOC).” Also, funding is
provided for “the enhancement to
instructional hours for grades 7 through
12…”.
35
State’s 2nd Compliance Report

36. 36
 In addition, the Legislature funded: “an
increase in the Learning Assistance (LAP)
allocation; a new program providing state-
funded supplemental instruction following a
student's exit from the Transitional Bilingual
Instructional Program (TBIP); and new funding
formula allocations for parent involvement
coordinators and middle school and high
school guidance counselors.”
36
State’s 2nd Compliance Report

37. 37
 “The Court should find that the State is
making progress toward implementing the
reforms initiated in ESHB 2261 and achieving
full compliance with Article IX, Section 1 by
2018.”
http://1.usa.gov/1ordnY0
37
State’s Conclusion

38. 38
 Defendant's $982 million “increase" claim
falls short of steady progress to full Article IX,
§1 compliance by 2018
 Defendant's School Salary “restoration" claim
falls short of a detailed plan or steady
progress to full market rate funding by 2018
 Defendant's Transportation “full funding"
claim stops short of steady progress to full
Article IX, §1 compliance by 2018
38
NEWS Response

39. 39
 Defendant's MSOC movement falls short of
steady progress to full Article IX, §1
compliance by 2018
 Defendant's Full-Day Kindergarten claim falls
short of steady progress to full Article IX, §1
compliance by 2018
 Defendant's Class Size Reduction claim falls
short of steady progress to full Article IX, §1
compliance by 2018
39
NEWS Response

40. 40
“Plaintiffs humbly request that - at a minimum -
this Court stop the defendant State from digging
its unconstitutional underfunding hole even deeper
with any unfunded mandates and issue a clear,
firm, unequivocal warning to the defendant State
that leaves recalcitrant elected officials no doubt
that the State's continued failure to comply with
this Court's Orders will result in a holding of
contempt, sanctions, or other appropriate judicial
enforcement which, frankly, makes compliance
their far preferable option.”
40
NEWS Conclusion
http://1.usa.gov/1hw2tbY

41. McCleary v. State
Supreme Court issues new
Orders on January 9, 2014

42. 42
 The Legislature took “meaningful steps in the
2013 legislative session to address the
constitutional imperative of amply providing for
basic education.”
 The funding provided, however, represents “only
a 6.7% increase over the current constitutionally
inadequate level of funding” and the state
“cannot realistically claim to have made
significant progress when its own analysis shows
that it is not on target to implement ESHB 2261
and SHB 2776 by the 2017–18 school year.”
42
January Supreme Court Order

43. 43
 The Legislature failed to comply with the Court’s
December 2012 Order and the new Order directs
the state to “submit, by April 30, 2014, a
complete plan for fully implementing its program
of basic education for each school year between
now and the 2017–18 school year.” The plan
must also include “a phase-in schedule for fully
funding each of the components of basic
education.”
 The 2014 session presents “an opportunity to
take a significant step forward.”
43
January Supreme Court Order

44. 44
 “The need for immediate action could not be
more apparent. Conversely, failing to act would
send a strong message about the state’s good
faith commitment toward fulfilling its
constitutional promise.”
 The Legislature must “demonstrate, through
immediate, concrete action, that it is making real
and measurable progress, not simply promises.”
http://1.usa.gov/1evdg54
44
January Supreme Court Order

45.  The 2014 Supplemental Budget “invested an
additional $58 million in general education
K-12 MSOC,” but “made no further
investments in either kindergarten through
third grade class size reduction or expansion
of all-day kindergarten.”
 The Legislature did not adopt a plan “to
implement the program of basic education as
directed by the Court” – however, “continued
discussion” was a “key legislative activity.”
45

46.  Various bills were introduced that would have
“addressed in full or in part the ‘plan’ that the
Court requested....Although none of these
bills passed the Legislature, they are
meaningful because they show significant
work is occurring.”
 The Legislature recognizes “the pace of
implementation must increase.” The
upcoming 2015-17 budget “must address
how targets will be met.”
46

47.  The Article IX Litigation Committee
“respectfully requests that the Court give
deep consideration to its response to the
actions taken in 2014, that such response not
be counterproductive, and that it recognize
that 2015 is the next and most critical year
for the Legislature to reach the grand
agreement needed to meet the state’s Article
IX duty by the statutorily scheduled full
implementation date of 2018.”
http://1.usa.gov/1n64geD
47

48.  The Court’s January 2014 Order ordered the
State’s April 30 filing do two things:
◦ Demonstrate the 2014 session took
“immediate, concrete action” to make “real and
measurable progress” towards fully funding the
State’s K-12 schools by the 2017-2018 school
year; and
◦ submit a complete full-funding plan for each
school year between now and the 2017-18
school year.
 “That was an Order. Not a suggestion.”
48

49.  The Legislature did what it had been ordered
not to do: “It offered promises about trying to
submit a plan and take significant action next
year—along with excuses for why the State’s
ongoing violation of kids’ constitutional
rights and court orders should be excused
this year.”
 The Court “should not condone the State’s
violation of court orders.” The Court is
requested to “take immediate, concrete
action to compel compliance” with the
Court’s orders.
49

50.  At the very least, the Court should:
◦ Hold the Legislature in contempt of court;
◦ Prohibit the State from adding more unfunded
or underfunded mandates on its schools; and
◦ Impose even more serious sanctions on the
Legislature if they do not comply with the
Court’s orders by December 31, 2014.
http://1.usa.gov/TRDrPL
50

51. 51
 On June 12, 2014, the Supreme Court issued
a “show cause order.” The State has been
summoned to appear before the Court to
“address why the State should not be held in
contempt” for violating the Court’s Orders.
The State is also to address why, if it is found
in contempt, any of the forms of relief
requested by the plaintiffs should not be
granted.
http://1.usa.gov/1lssDBH
Supreme Court Order

52. 52
 July 11: State’s response to the show cause
order due to Court
 August 11: NEWS answer to the State’s
response due to Court
 August 25: State may file a reply to the NEWS
filing
 September 3: Court to hear oral arguments in
the show cause hearing
 Date TBD: Court to issue further Orders
Next Steps…

53. 53
 The Supreme Court’s McCleary decision,
along with the state’s compliance reports,
NEWS responses and the Court’s Orders are
available on the Washington Courts website:
http://1.usa.gov/1iYjVdC
:
53
McCleary Documentation

54. McCleary v. State
What Does the Future Hold?

55. 55
Real Per Capita General Fund-State Revenues
(2009 Dollars)
Source: OFM, 12/13

56. 56
2013-15 & 2015-17 Budget Outlook
(Dollars in Millions)
Source: Economic & Revenue Forecast Council, 4/14

57. 5757Source: Washington State Budget & Policy Center, 3/14
2015-17 Projected Budget Shortfall
(March 2014)

58. 58Source: Washington State Budget & Policy Center, 6/14
2015-17 Projected Budget Shortfall
(June 2014)

59. 5959
Additional Revenue Necessary to Sustain
Investments in Education and Other Priorities

60. 6060
General Fund-State Revenues as
Percentage of Washington Personal Income
Source: OFM, 12/13

61. Daniel P. Steele
Assistant Executive Director,
Government Relations
825 Fifth Avenue SE
Olympia, WA 98501
360.489.3642
dsteele@wasa-oly.org
Education Litigation – Updated June 2014