when the need for illusion is deep.”
― Saul Bellow
The most common response to the Legislature’s June 30th McCleary plan seems to be, “Mission Accomplished.” That’s certainly the consistent message from our political leaders. Washington State Attorney General Bob Ferguson said as much this week when he filed a memo to the Court, asking for an end to McCleary. Wrote Ferguson, "it is time for this case to end."
To their credit, the legislature did reach a bipartisan agreement, which seemed like a tall order in the days leading up to their decision. And their funding plan promises some additional future investments in K-12 education. So, as we learned with the Iraq war, “Mission Accomplished” depends on how you define the mission.
Regardless of the opinions expressed by our political leaders, the state Supreme Court will ultimately decide if the legislative plan meets the constitutional mission laid out in their January 2012 McCleary ruling and subsequent orders. Their decision will likely come out somewhere along a continuum between the positions framed by the opposing views of the two parties named in the lawsuit:
- As indicated by Ferguson’s memo, the State will argue that their plan addresses all aspects of the ruling, so the contempt order should be vacated and the Court should relinquish jurisdiction in the case.
- The plaintiffs are certain to point out that the plan fails to meet the constitutional standards laid out in the McCleary ruling. They will likely argue that sanctions should continue and even increase until the Legislature comes up with a plan that provides the ample funding required by our constitution.
Predicting where the Court will fall between those extremes is a difficult proposition at best. If the justices are looking for a way out, as some pundits suggest, the legislative plan may provide the cover they need to back out gracefully. If, on the other hand, the justices have grown weary of the Legislature’s procrastination and empty promises, they may take more forceful action. If the Court does in fact have the will to hold the Legislature accountable, the following three questions may be central to their deliberations:
1. Was the Timeline Met?
In their 2012 McCleary ruling, the Court took the State at its word that the reforms in ESHB 2261 would result in ample funding by 2018. To ensure compliance, however, the Court established 2018 as a firm implementation deadline. In their October 6, 2016 order, the Court provided the following clarification about that deadline:
2. Is the Funding Ample?
The Legislature would have the Court believe that an additional $7.2 billion over four years meets the definition of ample. To buy that assertion, the Court would have to ignore the $6.9 billion annual gap between current funding levels and what the State testified in their initial McCleary defense that ESHB 2261 would provide when fully implemented.
Since the State testimony in multiple hearings has proven unreliable, the Court might choose to rely instead on legislative committee estimates of ample funding costs. The Joint Task Force on Education Funding, (JTFEF), was convened after the McCleary decision to determine the cost of complying with that ruling. In their Final Report of December 2012, the Joint Task Force provided the following estimate of costs with $4.48 billion called for in the 2017-19 biennium:
Also, by the end of the 2015-17 biennium the Legislature had already fallen behind these cost estimates by $1.4 billion. With that deficit added to the Legislature’s 2017-19 estimate, the new total allocation for the coming biennium should be over $5.88 billion. Clearly, their $1.9 billion investment falls well short of that amount.
Finally, these Joint Task Force estimates didn’t include any amount for fully funding teacher salaries. Those costs only became a legislative priority after subsequent orders made it clear the Court viewed them as an essential element of ample funding. According to Third Sector Intelligence (3Si), the consultant selected as part of E2SSB 6195, over $546 million of locally-funded salaries were paid in 2014 to state-allocated teachers. Adding that amount to the revised JTFEF cost estimate above, the total cost for the 2017-19 biennium comes to $6.43 billion.
So instead of $6.43 billion of new funding in the 2017-19 biennium, the Legislature provided $1.9 billion and called it ample. But the net amount of new funding is even lower because of the local revenue school districts will lose as part of the levy swap incorporated in the new plan. With that loss included, the net 2017-19 biennial increase totals $1.5 billion, or nearly $5 billion short of the Legislature’s own estimated costs for the biennium.
Another funding change within the Legislature’s new plan takes our schools farther away from a key premise of the ample funding called for in the McCleary decision. That principle is that the State must fully fund the full cost of providing the program of basic education. Judge Doran’s used the same principal in his school funding decision nearly four decades ago. The staff mix formula was one of the key funding mechanisms put in place after the Doran ruling to ensure the state funded school districts for the actual mix of teachers they hire. The staff mix formula and related state salary schedule were both eliminated by the Legislature in HB 2242.
In a recent Seattle Times editorial I wrote at some length about the importance of the staff mix formula within the McCleary context. Along with the statewide salary schedule, it created greater salary consistency across the State while also linking state salary allocations to a district’s actual average teacher placement on the state salary schedule.
This formula wasn’t identified as a problem by the Court, and by replacing it with a statewide average allocation, the Legislature has ensured actual salary costs won’t be covered for districts whose teachers are more experienced and highly trained than average. Just because the state salary schedule goes away doesn’t mean teachers at the upper end of that scale should or would accept a lower salary. Now with HB 2242 the State isn’t fully funding those added costs, negatively impacting roughly half of the districts in the State. The Court may well ask how that change meets their stated criteria of fully funding districts’ actual costs.
3. Does the State’s Definition of Basic Education Comply with the Court’s Ruling?
There are two interrelated issues at the core of the McCleary decision. The first relates to the State’s definition for the Program of Basic Education. The second is whether the State is amply funding the actual school district costs of providing that program to each student. Prior to the McCleary decision, the State maintained that Basic Education was defined by their allocation formulas. In the Court’s 2012 decision the justices chastised the State for that definition:
The language in subsections (1) and (2) basically says local enrichment is allowed for anything beyond the state’s allocation for the prototypical model and the other statutory funding formulas which they define as basic education. Has anything changed in this legislative definition? They again seem to be saying the school funding formulas represent the State’s total basic education obligation, and school districts can enrich any part of that program with local funds. Salaries appear to be the only area with new local funding limitations, and it remains to be seen how much this new language will limit locally-bargained salary enhancements. Isn’t this the scenario that created the McCleary decision in the first place?
So, after years of litigation and countless additional time devoted to study and deliberation, do we just find ourselves back where we started, where the State can “maintain the appearance of fully funding basic education even though appropriations bear little resemblance to the actual level of resources needed”?
It’s now up to the Court to decide if HB 2242 is an appropriate, constitutionally valid response to the McCleary ruling. The justices must decide whether that plan represents mission accomplished, or merely the appearance of full funding. The future of public education in Washington State hangs in the balance.