The thing to be supplied is light, not heat.
-- Woodrow Wilson
While this legal action may have come as a big surprise to many citizens, Dorn has been hinting at such action for quite some time. Last November, WASA sent out a press release critical of his request for a State Attorney General’s opinion on whether school districts “have the authority to use local levies to pay compensation to district employees for basic education services.”
On December 3, the AG’s Office responded and declined to offer an opinion, stating: “Our answer to your question could anticipate forthcoming proceedings in this case, inject new issues into the case, or implicate constitutional questions surrounding state statutes governing education funding, which are directly or indirectly at issue in McCleary.” In other words, the AG’s office didn’t want to inject an opinion in the midst of the ongoing McCleary clash between the State Supreme Court and the Legislature.
Upsetting that apple cart appears to be the precise motivation behind Dorn’s lawsuit. Dorn’s strategy seeks to create chaos that will promote legislative action. In the OSPI press release about the lawsuit, Dorn stated: “…it wasn't the Supreme Court that convinced legislators to vote for a major tax increase in 1982 … school funding cuts created a public outcry that led to the tax increase.”
While we certainly support Dorn’s motivation, we don’t agree with his strategy of suing school districts to spur legislative action. In an editorial in The Everett Herald, we went public with that opposition, stating: “Dorn’s lawsuit doesn’t just throw seven school districts into chaos, it threatens levy passage for all school districts if voters accept his contention that such levies have been used illegally.”
But what if Dorn is right? Clearly, he is passionate about serving all of Washington’s students; and he correctly asserts that under our constitution, a student’s zip code shouldn’t determine a child’s quality of education. Since a lot of time and planning has gone into this lawsuit, Dorn must recognize that if successful, it would throw the seven defendants and the vast majority of other districts into unchartered legal waters. The gamble, of course, is that school districts won’t face that crisis, because public pressure will force the Legislature to take actions they have avoided thus far.
But what if Dorn is wrong? The worst version of wrong is that the Court rules in favor of Dorn, and still the Legislature doesn’t come up with the billions of dollars needed to backfill the lost local salary funding. Given the durable Republican talking point that no new taxes are needed to solve the McCleary problem, that’s not such an unlikely scenario. With that outcome, many school districts would either be forced to violate their collective bargaining agreements or make major lay-offs. And given the fact that many districts pay a third or more of salaries from local levies, the budget hole to fill with layoffs could be huge. As a result, the very students Dorn seeks to protect could suffer most.
Another version of wrong is that the lawsuit drags on into the future and is only resolved as part of the ultimate McCleary solution. That may be the best version of Dorn being wrong, and yet, students could still suffer because the lawsuit undermines the public confidence and support needed to pass local levies. And with that scenario, the lawsuit will have done little if anything to change the McCleary outcome.
Among the other likely outcomes from Dorn’s action, it’s also possible that the Court would rule against him. A strong case could certainly be made that school districts have been following all applicable laws in providing local salary enhancements. But even a victory by the defendant districts could undermine voter confidence in the use of local levies. And couldn’t it undercut or complicate a solution to McCleary? If that happens, students again are the losers.
Given the variety of potential problems caused by Dorn’s gambit, why was he in such a rush to take this action? Perhaps he has lost confidence in the will of the Court to hold the Legislature accountable. If so, that’s in spite of the Court’s notice five days before filing his lawsuit, ordering the parties to appear again on September 7. Their last ordered appearance was followed by the imposition of an unprecedented $100,000 per day fine against the Legislature. And while Dorn may have lost confidence in the Court’s commitment to this case, it seems very likely that additional penalties will be imposed after the September hearing.
So in spite of the real risks of harming students posed by his lawsuit, and in spite of the apparent determination by the Court to “up the ante” in their pressure, Dorn decided not to wait and jumped in where the AG’s office declined to go. It’s not as if the Court couldn’t create the same pressure. They could for example, rule the locally-funded salary provisions of RCW 28A.400.200 as unconstitutional. Dorn’s lawsuit isn’t needed to open that possibility.
As we analyze Dorn’s action from this risk vs. rewards perspective, we are hard pressed to understand what has propelled him to act ahead of the Court’s next pronouncement in the case. Whatever his motivation, we remain convinced that it was a mistake and hope that students aren’t left holding the bag for his decision.