Court right to keep close eye on school funding

Call it the fool us once, fool us twice section of Washington Supreme Court Justice Debra Stephens’ opinion in the landmark case known as McCleary.

Stephens wrote that Washington has failed to meet its paramount constitutional duty to “make ample provision for education of all children residing within its borders.”

Despite the constitution and a similar court conclusion 35 years ago, the state’s governors and legislatures have continued to push too much of the funding duty onto local school districts and local taxpayers.

That was an open secret in the state, and Stephens’ conclusion shouldn’t have surprised anybody. The big mystery was this: What was the court going to do about it?

“This court is appropriately sensitive to the Legislature’s role in reforming and funding education, and we must proceed cautiously,” Stephens wrote.

Under normal circumstances, the court would defer to the Legislature as it did the last time it ruled on the paramount duty clause (article IX, section 1). In the Seattle School District decision of 1978, the court agreed with a lower-court opinion that the state was in violation of the constitution. But it canceled the trial judge’s decision to keep the case in front of him to enforce compliance.

The result of that restraint was another lawsuit, another court order and worse, another 30 years of “an education system that fell short of the promise of article IX, section 1 and that ultimately produced this lawsuit.”

“What we have learned from experience is that this court cannot stand on the sidelines and hope the state meets its constitutional mandate to amply fund education,” Stephens wrote. The Legislature and the governor could fool the court once by promising to follow the constitution and failing to follow through. But it would be a failure of the court to give them both the chance to fool the court once again.

Still, the court majority tried to walk a line between giving very specific direction to an independent branch of government and giving that branch flexibility. The court, for example, likes what it sees in 2009’s House Bill 2261 to reorder and enhance how schools are funded. But the court will stay involved, at least until 2018, to make sure implementation happens.

“This court cannot idly stand by as the Legislature makes unfulfilled promises for reform,” Stephens wrote.

It was that part of the decision that led to a dissent written by Chief Justice Barbara Madsen and signed by Justice Jim Johnson. They agreed with the conclusion of unconstitutionality but balked at the remedy.

“We have done our job; now we must defer to the Legislature for implementation,” Madsen wrote. Oddly, Madsen justified her hands-off approach by citing the same case that Stephens used to justify retaining jurisdiction.

“In Seattle School District, we held that once the constitutional ends have been defined by the courts, the means of compliance are firmly within the realm of the legislative power,” Madsen wrote.

She then suggested a court standard. In other instances when courts retained jurisdiction, such as the landmark Brown v. Board of Education school desegregation case, “the court used identifiable factors to determine if a school district had achieved its mandate,” Madsen wrote. No such roadmap is laid out in McCleary, Madsen notes.

Yet doing what Madsen suggests would not have brought her on board anyway.

“But, in any event, I do not believe this court should attempt to establish goals or benchmarks for the Legislature to meet,” Madsen wrote. She instead favored sticking with a separation-of-powers standard that has been a failure for 35 years.

Courts regularly order the executive branch of government to meet constitutional requirements. While it is rare for courts to order the legislative branch to perform, the alternative is to give that branch special status, not equal status.

If the Legislature wants the court’s deference on how it meets its paramount duty, it should try earning it.

Peter Callaghan: 253-597-8657 peter.callaghan@thenewstribune.com blog:thenewstribune.com/politics Twitter: @CallaghanPeter