[nfbwatlk] FW: Update on McCleary Education Funding Lawsuit

Mon Nov 5 17:35:23 UTC 2012

From: Dean Stenehjem [mailto:Dean.Stenehjem at wssb.wa.gov] 
Sent: Monday, November 05, 2012 8:50 AM
Subject: FW: Update on McCleary Education Funding Lawsuit

FYI

From: Paul Rosier [mailto:schard at wasa-oly.org] 
Sent: Monday, October 22, 2012 3:21 PM
To: wasaactivemembers at wasa-oly.org
Subject: Update on McCleary Education Funding Lawsuit

Dear WASA members,

Just prior to the beginning of the 2012 Legislative Session, the Supreme
Court released its decision in McCleary v. State of Washington, the
education funding lawsuit. The Court ruled in the plaintiff's favor, stating
clearly that the State of Washington is violating its constitutional duty to
amply fund the education of all K-12 students. In a unique decision, the
Court retained jurisdiction in the case. Rather than dictating what that
would look like, the Court directed the parties in the case to submit
supplemental briefings to address the "preferred method for retaining
jurisdiction." As directed, the defendants (State) and the plaintiffs
(Network for Excellence in Washington Schools) submitted supplemental briefs
to the Court. On July 18, 2012, the Supreme Court released its Final Order
establishing how it would retain jurisdiction in the McCleary case to ensure
the State fully complies with the constitution by 2018.

The Court's Final Order requires periodic "compliance reports." These
reports, which must detail the State's actions to achieve compliance with
the McCleary decision, must be filed within 60 days of the governor's
signing each biennial or supplemental budget from now until 2018. An initial
report was due on September 17-60 days after the Order was filed. NEWS is
given 30 days following the filing of the compliance reports to respond,
addressing the adequacy of the compliance progress claimed by the State.
Finally, the Order reiterates that the Supreme Court is requiring the State
to fully comply with Article IX (Section 1) by 2018, and requires each of
the State's compliance reports to demonstrate "real", "measurable", and
"steady" progress towards meeting that 2018 full compliance deadline. The
Order also reserves for the Court full flexibility to decide the appropriate
steps to take if the State fails to prove it is making the real, measurable,
and steady progress required by the Court.

On September 17, the State filed its initial compliance report
<http://www.waschoolexcellence.org/files/Legislative%20report%20Sept%202012.
pdf> , as required. The report was officially filed by the Legislature's
Joint Select Committee on Article IX Litigation. This Committee was created
this past session with the Legislature's adoption of House Concurrent
Resolution 4410. The purposes of the Committee are: to be a point of contact
between the Legislature and the Court; to assist and advise the lawyers
representing the State; and to inform legislators about the Court's
communications with the legislative branch.

The first compliance report provided a "baseline" and context for future
reports, rather than an attempt to articulate the Legislature's progress
towards full compliance with McCleary-simply because there was no meaningful
progress made in this past session. 

On October 17, NEWS filed its response
<http://waschoolexcellence.org/files/NEWS%20response%20Oct%202012.pdf>  to
the State's first compliance report. (NEWS also prepared a three-page
summary
<http://waschoolexcellence.org/files/Summary%20of%20NEWS%20response%20Oct201
2.pdf>  of its response.) The response is a scathing rebuke of: (1) the
State's (that is, the Legislature's) continued unconstitutional inaction
regarding basic education funding; and (2) the State's compliance report
that attempts to excuse the Legislature's failure to comply with the Court's
orders.

The NEWS response reiterates the Court's order that the State's compliance
reports must: 

(1) "demonstrate steady progress" implementing the reforms promised under
ESHB 2261, and

(2) "show real and measurable progress towards achieving full compliance
with article IX, section 1 by 2018."

The response simply notes:

The State's September 2012 post-budget filing does neither. To the contrary,
it acknowledges that the 2012 legislature chose to make virtually no
progress implementing funding increases under ESHB 2261. It similarly
acknowledges that the 2012 legislature chose to make virtually no progress
funding the significant shortfalls the State has already identified in its
school funding studies concerning Article IX, Section 1.

NEWS notes that the Superior Court's judgment against the State over
two-and-a-half years ago "held the State's perennial underfunding of its
K-12 public schools is unconstitutional (illegal)." However, the State
"chose to simply disregard the Court judgment against it-even going so far
as to cut K-12 funding lower that what that Court judgment had declared to
be unconstitutionally low." Further, the State's first compliance report
"confirms that the State continues to think it is free to disregard the
Court rulings in this case-for it conspicuously failed to demonstrate
'steady progress' under ESHB 2261 and also failed to show 'real and
measurable progress' towards full Article IX, Section 1 compliance by 2018."

Calling the State's failure to make required progress in its 2012 budget
"Constitutionally unacceptable," NEWS requests the Court to "issue a firm,
unequivocal Order that forces our State officials to put their perennial
excuses and foot-dragging to an end." While NEWS does not specify what the
Court should do to force the State's compliance, they list a series of
examples from Constitutional case law that confirms a court can force the
legislative or executive branch to comply with the Constitution by: 

.         imposing monetary contempt sanctions against legislative branch
officials;

.         prohibiting government expenditures on certain other matters until
the Court's Constitutional ruling is complied with;

.         ordering the legislature to pass legislation to fund specific
education amounts;

.         prohibiting the State from limiting an education program to less
than all eligible students in a given grade level; 

.         ordering the sale of State property to fund Constitutional
compliance; and

.         issuing a writ of mandamus to the legislature to compel
performance.

What, if any, action the Court will now take is to be determined. Certainly,
this scathing response from NEWS sets the stage for the 2013 legislative
session; legislators know they are being watched. We will continue to keep
you posted.

Paul Rosier, Ed.D.

Executive Director

Dan Steele

Assistant Executive Director, Government Relations

Washington Association of School Administrators
825 Fifth Ave. SE | Olympia, WA | 98501

360-489-3652 | 360-352-2043 Fax

 <http://www.wasa-oly.org/> wasaLogo

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