- Alexander Haig
In multiple places in the Attorney General’s brief (including pages 2, 3, 14, and 16) the State proclaims the Legislature’s “full commitment to fund the State’s program of basic education” by the end of the 2017 Session - as stated in E2SSB 6195 (the McCleary “plan-to-make-a-plan” bill). First, even if we take the Legislature’s word that they intend to follow through with its stated commitment, E2SSB 6195 still offers no “complete plan” as ordered by the Court. Specifically, the Court ordered a “complete plan for fully implementing its program of basic education for each school year between now and the 2017-18 school year” (Aug. 13, 2015 Order and elsewhere). Second, the Legislature’s so-called “commitment” does not specifically bind the Legislature to actually fulfill that commitment. Third, there is no description (that is, plan) clarifying HOW they will meet this commitment.
Additionally, the AG notes the Legislature boldly commits in E2SSB 6195 to solve the compensation/levy problem by 2017, and bluntly states “that commitment is stated without equivocation.” What the AG completely ignores is the Legislature’s corresponding back-tracking on that commitment when it adopted the 2016 Supplemental Operating Budget. In the budget, the Legislature reiterates its stated commitment WITH equivocation (Section 515, 2ESHB 2376). It hedges its “commitment” by establishing an exit strategy, if next year’s Legislature doesn’t agree to meet that commitment. If the State is so sure of its actual commitment to follow through on its “commitment,” why would it equivocate that commitment with an “out”?
Further, the end of the AG’s report mocks the plaintiffs and presupposes they will argue that the Legislature cannot be trusted to carry out its commitment - to which the AG insists the Legislature is “entitled to a presumption of regularity and good faith” (page 22). In noting the E2SSB 6195 commitment to solve the compensation/levy question, the AG bluntly states, “That statement of commitment by a coordinate branch of government is entitled to respect” (page 16). Well, if the Legislature’s own members lack faith in their ability to fulfill their “commitment,” why should the plaintiffs (or the Court) trust that “commitment”? Sen. Andy Hill, the Senate Ways & Means Committee Chair, the key architect and negotiator of the Operating Budget, and by virtue of his position, a key leader in the Senate Majority Coalition Caucus, has publicly confirmed his doubts about the Legislature’s commitment. Prior to the start of this session, in reference to the Legislature’s obligation to solve the compensation/levy question, Sen. Hill is quoted as saying, “My advice to school districts is, assume the levy cliff is going to occur, because that’s the one thing that’s for sure right now. The Legislature may act and solve it, but if I were them, I’d be hoping for the best and planning for the worst” (The News Tribune, Jan. 10, 2016).
I’d also add that the Court has ample evidence of the Legislature’s lack of follow through. For example, when the Court was contemplating a Contempt of Court ruling (June 2014), the State’s Deputy Solicitor General Alan D. Copsey urged the Court to have patience. He stated very clearly (and without equivocation, by the way) that the Court had legislators’ attention and the paramount duty would be their priority. He continued by clearly stating that legislators knew that 2015 was THE year for the necessary “grand bargain” to solve the education funding problem. Of course, they failed to follow through in 2015 - and then failed to even attempt to follow through in 2016. One of the Justices at the Show-Cause hearing asked the State’s attorney why they should believe the State would finally comply with the Court’s Orders. That question needs to be asked again.
Joint Task Force on Education Funding
The AG mocks the Court’s (and plaintiffs’) use of the funding plan from the Legislature’s own Joint Task Force on Education Funding (JTFEF) as a benchmark for progress, because a task force submits simply “an aspirational recommendation” (page 7). First, legislators should jump at the chance to use these benchmarks - because the JTFEF recommendations set a lower bar than what the State promised in sworn testimony at trial. Or was that simply “aspirational” testimony? Second, if the JTFEF recommendations are not an appropriate benchmark, why does the AG note the Legislature’s progress on K-3 class size reduction “compares favorably with the linear schedule recommended by the JTFEF plan”? (page 18). When the recommendations are met, they are appropriate; however, when they aren’t met, they are just aspirational?
There has been considerable debate over the last year or two about whether or how McCleary obligations should be shown in the Legislature’s required four-year balanced budget Outlook. Page 19 discusses the inclusion of K-3 class size funding in the Outlook: “the necessary costs are included in the four-year balanced budget outlook for the 2015-17 operating budget and will be included in the maintenance level funding in the 2017-19 operating budget.” Then the AG states flatly, “This inclusion in the budget outlook evidences the Legislature’s commitment to provide that funding.”
On May 18, the Economic & Revenue Forecast Council met to adopt the official four-year Outlook. There was a prolonged debate (continued from its meeting last month) about whether or how the costs for K-12 compensation, related to McCleary, should be included in the 2017-19 part of the Outlook. Sen. Hill, Senate Ways & Means Committee Chair and member of the Council, argued they should NOT be included. A motion was made to include some level of estimated costs, but the motion was defeated. Ultimately, the final motion to adopt the official Outlook as presented failed to garner enough votes for passage, so by default (as stipulated in statute) the staff recommendation (with no noted compensation costs) stands as the official Outlook. All that to say: using the AG’s logic that “inclusion in the budget outlook evidences the Legislature’s commitment to provide that funding,” doesn’t it stand to reason that NOT including any estimate of compensation costs in the budget Outlook evidences the Legislature’s LACK of commitment to provide that funding? Can you have your cake and eat it, too?
On page 20, the AG’s brief provides a list of claimed funding accomplishments to support all-day K and K-3 class size implementation. The fourth bullet point mischaracterizes school construction funding. It notes the State provided “funding ($611 million) for the School Construction Assistance Program to help expand facilities to support all-day kindergarten and K-3 class size reductions” (emphasis added). SCAP is not specifically directed to all-day K or K-3 class size reductions. It provides funding assistance for facility planning, new construction, and modernizations at all grade levels. That may or may not include all-day K or K-3 class size reductions. To claim $611 million was provided for these specific McCleary-related items is, at best, an exaggeration.
The last bullet point on page 20 is not anything to be excited about. It notes in 2015 the State provided “Funding ($200 million) for a new program of grants specifically to support all-day kindergarten and K-3 class size reduction.” The Legislature should get some credit for finally recognizing this problem; however, this grant program is woefully underfunded. In Superintendent Dorn’s 2015-17 Capital Budget proposal, he requested almost $2.0 billion to provide the new classrooms required to actually implement all-day K and K-3 class size reduction.
On page 21, the AG notes the 2016 Supplemental Capital Budget provides an additional “$74.8 million to support school construction and class size reduction.” This statement is more accurate; however, it would have been more honest to say $34.8 million was provided for SCAP and $34.5 million was provided for class size reduction (their number includes a slight mathematical and/or rounding error). Again, while positive, the SCAP funding is for “general” facilities funding (and is technically a maintenance level increase); and the class size funding equals $234.5 million for the biennium… out of a $2.0 billion cost.
Echoing the report from the Legislature’s Joint Select Committee on Article IX Litigation, the AG states plainly “the State now has submitted a plan”- even though this statement is made immediately following a paragraph reciting the Court’s Order: the required plan must include “how [the State] will achieve the required goals, with a phase-in schedule and benchmarks for measuring full compliance” (page 10). On page 14, it is noted that E2SSB 6195 “establishes explicit benchmarks the Court may use to assess the Legislature’s progress under this plan.” The benchmarks in the bill are established for an analysis of data and for a set of recommendations to potentially be adopted, NOT for any other specific action or progress. How this can be defended as a “complete plan” to achieve full constitutional compliance by the McCleary ruling’s 2017-18 school year deadline is baffling.
In fact, on page 15, it is noted E2SSB 6195 “does not include a budget for legislation to be enacted in 2017, because the information necessary to craft that legislation is not yet available.” So, the State confesses its supposed “plan” does not meet the Court’s mandate for a “complete plan” that includes a demonstration that the Legislature’s “budget meets it plan”?
The AG concludes the State’s filing (pages 22-23) by again stating the Legislature has complied with the Court's Order - and states plainly, “The Court therefore should dissolve the order finding the State in contempt and terminate its order imposing daily sanctions on the State.” As discussed in this post, the State’s claim of compliance is not credible. The Network for Excellence in Washington Schools (NEWS), the plaintiffs in the McCleary case, will surely refute this claim when it files its official response to the State’s brief on June 7. State Superintendent Randy Dorn has already publicly stated his disbelief about the State’s assertions and has called on the Court to impose “tough sanctions” on the State. He is expected to file an amicus brief with the Court making this same request. Even the Seattle Times recently said the Court’s fines have not worked and “the state Supreme Court should up the ante on sanctions to get lawmakers’ attention.”
Let’s hope our Supreme Court Justices can see through the State’s smoke and mirrors and will take a strong stand against the State’s ongoing refusal to comply with court orders.