education funding litigation in washington state (june 2014)

McCleary v. State of WashingtonEducation funding litigation…and its implications

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History of Education Funding & Litigation

McCleary Case & Decision(s)

Implementation of McCleary

What about the future?

McCleary v. State - Overview

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“It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.”

Article IX, Section 1Washington State Constitution

Paramount Duty Clause

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1976: Seattle School District files suit against state

1977: Superior Court Judge Robert Doran finds for the school districts

1977: Legislature adopts Basic Education Act of 1977

1978: State Supreme Court affirms Doran decision

1980: State increases K-12 funding share

Education Funding & Litigation

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1983: Second Doran decision expands “basic education” definition – special education, remediation assistance and transportation

1987-88: Doran issues special ed decision 1993: Legislature adopts Education Reform

Act of 1993 1995: Legislature changes special ed formula


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2005: The Network for Excellence in Washington Schools (NEWS) is formed◦ Comprised of 70+ organizations and school districts

committed to improving the quality of public education in Washington

2007: McCleary v. State of Washington filed in King County Superior Court NEWS filed a lawsuit, asking the court to order the

State of Washington to live up to its paramount constitutional duty to make ample provision for the education of all Washington children


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State Funding Actual District Costs0

2

4

6

8

10

12

Statewide Funding – all 295 School Districts2007-08 School Year

State’s “basic educa-tion” funding

Other State funds

School facilities

Classroomteachers

Pupil transportation

Librarians, counselors, safety personnel, health etc.

Principals, etc.

Utilities, insurance, etc.

ExtracurricularFood service

Capital Project Fund ex-penses

ASB Fund expenses

Dolla

rs in

Billi

ons

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Local levy revenue at the same level as before Doran Decision

1978-1979

1979-1980

1980-1981

1981-1982

1982-1983

1983-1984

1984-1985

1985-1986

1986-1987

1987-1988

1988-1989

1989-1990

1990-1991

1991-1992

1992-1993

1993-1994

1994-1995

1995-1996

1996-1997

1997-1998

1998-1999

1999-2000

2000-2001

2001-2002

2002-2003

2003-2004

2004-2005

2005-2006

2006-2007

2007-2008

2008-2009

2009-20100.0%

10.0%

20.0%

30.0%

40.0%

50.0%

60.0%

70.0%

80.0%

90.0%

Percent of State and Local Revenue Sources (excludes federal and other revenue sources)

State Revenue

Local Revenue

20.5%

Source: OSPI 5/10

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Local Levies as a Percent ofAll School Districts’ Revenue

Source: Joint Task Force on Education Funding, 11/12

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2009: McCleary v. State of Washington heard in King County Superior Court

2010: Judge John Erlick rules for the plaintiffs, declaring the State’s failure to fully fund public schools is unconstitutional:◦ “This court is left with no doubt that under the State’s

current financing system, the state is failing in its constitutional duty. “

McCleary v. State

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“State funding is not ample, it is not stable, and it is not dependable…local school districts continue to rely on local levies and other non-state resources to supplement state funding for a basic education.”

“Paramount means preeminent, supreme, and more important than others. Funding K-12 education…is the state’s first and highest priority before any other state programs or operations.”

- Judge John Erlick

McCleary v. State

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Judge Erlick directed the Legislature to:◦“determine the cost of amply providing for

basic education and a basic program of education for all children”

◦“provide stable and dependable funding for such costs of basic education”

http://1.usa.gov/1hnDDNU

McCleary v. State

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2009: Adopted ESHB 2261◦ Redefined basic education and restructured state’s

education finance system

◦ Stated Legislature’s intent that a newly redefined Program of Basic Education and the necessary funding to support it be fully implemented by 2018

◦ Created the Quality Education Council to monitor implementation

◦ Established a series of work groups to provide implementation recommendations

Legislative Response

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2010: Adopted SHB 2776◦ Began implementation of new Prototypical

School Funding Model, as created in ESHB 2261

◦ Called for funding enhancements for: K-3 Class Size Reduction; All-Day Kindergarten; Maintenance, Supplies & Operating Costs (MSOC); and Pupil Transportation

◦ Established a schedule for the enhanced funding

Legislative Response

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2011: Supreme Court hears State’s appeal in McCleary case

2012 (January): Supreme Court unanimously affirms trial court’s ruling. Court retains jurisdiction in case to ensure the State complies with its paramount duty

http://1.usa.gov/TRJ3cI

McCleary v. State

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Supreme Court rules:◦ The State “has consistently failed” to provide the

ample funding required by the Constitution.

◦ “Reliance on levy funding to finance basic education was unconstitutional 30 years ago in Seattle School District, and it is unconstitutional now.”

Supreme Court Orders State to:◦ “demonstrate steady progress” under ESHB 2261;

and

◦ “show real and measurable progress” towards full Article IX, Section 1 compliance by 2018.

McCleary v. State

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2012 (July): Supreme Court issues Final Order on Retention of Jurisdiction, requiring the State to:◦ file periodic reports summarizing actions to

implement ESHB 2261 and achieve compliance with the Constitution; and

◦ show “real and measurable progress” toward achieving full constitutional compliance by 2018

◦http://1.usa.gov/SMTldi

McCleary v. State

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2012 (December): Supreme Court affirms that “Year 2018 remains a firm deadline” for constitutional compliance. Court Orders the State’s 2013 compliance report to:◦ set out the State’s plan in sufficient detail to allow

progress to be measured according to periodic benchmarks between now and 2018;

◦ indicate a phase-in schedule for achieving its mandate; and

◦ demonstrate that its budget meets its plan

http://1.usa.gov/SN0zOq

McCleary v. State

McCleary v. State

Implementing McCleary

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ESHB 2261 – Program Changes Required

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SHB 2776 – Funding Changes Required

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SHB 2776 Resource Phase-inSchool Year 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18

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Full-Day KindergartenMust be fully funded statewide by

2017-18Phase-in based on FRPL

219 Schools

More funding can begin

More funding must begin

Continues to ramp

up

Continues to ramp

up

Continues to ramp

up

Continues to ramp

up

Fully Funded

2

K-3 Class Size ReductionMust be fully funded statewide by

2017-18Phase-in based on FRPL

$0More

funding can begin


Continues to ramp

up

Continues to ramp

up

Continues to ramp

up

Continues to ramp

up

Fully Funded

3

Materials, Supplies, Operation Costs (MSOC)

Must be fully funded by 2015-16$ per student basis



Continues to ramp

up

Continues to ramp

up

Funded at new level

Funded at new level

Funded at new level

4Basic Transportation

Must be fully funded by 2014-15% of formula funded basis



Continues to ramp

up

Fully Funded

Fully Funded

Fully Funded

Fully Funded

Source: OSPI, 5/10

Joint Task Force on Education Funding must: Make recommendations for how the Legislature can

meet the requirements of ESHB 2261 and SHB 2776 Develop a proposal for a reliable and dependable

funding mechanism to support basic education programs—multiple options may be recommended, but must recommend one preferred alternative

Consider QEC recommendations (2012) for the Transitional Bilingual Instructional Program

Report recommendations by December 31, 2012

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Education Funding Task Force

Subjects the Task Force considered: Phase-in schedule for funding program enhancements:

◦ Maintenance, Supplies & Operating Costs (MSOC)◦ Pupil transportation◦ K-3 class-size reduction◦ Full-day kindergarten phase in

Recommendation(s) on phasing in other enhancements:◦ 24 credits for high-school graduation◦ 1,080 hours of instruction for grades 7-12

Recommendation(s) on changes to TBIP Recommendation(s) on paying for the new costs

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Four Senators Four Representatives

Three Gov appointees

Democratic Caucus Democratic Caucus Jeff Vincent (Chair)Sen. Lisa Brown Rep. Marcie Maxwell Sen. David Frockt Rep. Pat Sullivan Susan Enfield (Vice

Chair)

Republican Caucus Republican Caucus Mary LindquistSen. Joe Fain Rep. Gary AlexanderSen. Steve Litzow Rep. Susan Fagan

Alternates AlternatesSen. Christine Rolfes (D)

Rep. Cathy Dahlquist (R)Rep. Ross Hunter (D)Rep. Kristine Lytton (D)


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Education Funding Task ForceAdopted Spending Plan

Source: Joint Task Force on Education Funding, Final Report, 12/12

McCleary v. State

Is the State making “steady progress” toward full

compliance with Article IX, Section 1 of the Constitution?

3131

Initial McCleary Investment2013-15 Operating Budget

Initial McCleary Basic Education Investment

2013-15 Operating Budget

32Source: Network for Excellence in Washington Schools, 11/12

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Real and steady progress towards full funding-- State Testimony vs. Actual Funding—

(Per Pupil State Funding)

Source: Network for Excellence in Washington Schools response to 2013 Post-Budget Filing, 1/14

McCleary v. State

The Supreme Court retained jurisdiction in the case,

requiring annual compliance reports

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The 2013-15 operating budget contains “$982.0 million in enhancements to basic education allocation formulas. Funding is provided to address…full-day kindergarten; early elementary class size reduction; pupil transportation; and materials, supplies, and operating costs (MSOC).” Also, funding is provided for “the enhancement to instructional hours for grades 7 through 12…”.

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State’s 2nd Compliance Report

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In addition, the Legislature funded: “an increase in the Learning Assistance (LAP) allocation; a new program providing state-funded supplemental instruction following a student's exit from the Transitional Bilingual Instructional Program (TBIP); and new funding formula allocations for parent involvement coordinators and middle school and high school guidance counselors.”

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State’s 2nd Compliance Report

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“The Court should find that the State is making progress toward implementing the reforms initiated in ESHB 2261 and achieving full compliance with Article IX, Section 1 by 2018.”

http://1.usa.gov/1ordnY0

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State’s Conclusion

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Defendant's $982 million “increase" claim falls short of steady progress to full Article IX, §1 compliance by 2018

Defendant's School Salary “restoration" claim falls short of a detailed plan or steady progress to full market rate funding by 2018

Defendant's Transportation “full funding" claim stops short of steady progress to full Article IX, §1 compliance by 2018

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NEWS Response

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Defendant's MSOC movement falls short of steady progress to full Article IX, §1 compliance by 2018

Defendant's Full-Day Kindergarten claim falls short of steady progress to full Article IX, §1 compliance by 2018

Defendant's Class Size Reduction claim falls short of steady progress to full Article IX, §1 compliance by 2018

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NEWS Response

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“Plaintiffs humbly request that - at a minimum - this Court stop the defendant State from digging its unconstitutional underfunding hole even deeper with any unfunded mandates and issue a clear, firm, unequivocal warning to the defendant State that leaves recalcitrant elected officials no doubt that the State's continued failure to comply with this Court's Orders will result in a holding of contempt, sanctions, or other appropriate judicial enforcement which, frankly, makes compliance their far preferable option.”

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NEWS Conclusion

http://1.usa.gov/1hw2tbY

McCleary v. State

Supreme Court issues newOrders on January 9, 2014

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The Legislature took “meaningful steps in the 2013 legislative session to address the constitutional imperative of amply providing for basic education.”

The funding provided, however, represents “only a 6.7% increase over the current constitutionally inadequate level of funding” and the state “cannot realistically claim to have made significant progress when its own analysis shows that it is not on target to implement ESHB 2261 and SHB 2776 by the 2017–18 school year.”

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January Supreme Court Order

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The Legislature failed to comply with the Court’s December 2012 Order and the new Order directs the state to “submit, by April 30, 2014, a complete plan for fully implementing its program of basic education for each school year between now and the 2017–18 school year.” The plan must also include “a phase-in schedule for fully funding each of the components of basic education.”

The 2014 session presents “an opportunity to take a significant step forward.”

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“The need for immediate action could not be more apparent. Conversely, failing to act would send a strong message about the state’s good faith commitment toward fulfilling its constitutional promise.”

The Legislature must “demonstrate, through immediate, concrete action, that it is making real and measurable progress, not simply promises.”

http://1.usa.gov/1evdg5444


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The 2014 Supplemental Budget “invested an additional $58 million in general education K-12 MSOC,” but “made no further investments in either kindergarten through third grade class size reduction or expansion of all-day kindergarten.”

The Legislature did not adopt a plan “to implement the program of basic education as directed by the Court” – however, “continued discussion” was a “key legislative activity.”

State’s 3rd Compliance Report

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Various bills were introduced that would have “addressed in full or in part the ‘plan’ that the Court requested....Although none of these bills passed the Legislature, they are meaningful because they show significant work is occurring.”

The Legislature recognizes “the pace of implementation must increase.” The upcoming 2015-17 budget “must address how targets will be met.”


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The Article IX Litigation Committee “respectfully requests that the Court give deep consideration to its response to the actions taken in 2014, that such response not be counterproductive, and that it recognize that 2015 is the next and most critical year for the Legislature to reach the grand agreement needed to meet the state’s Article IX duty by the statutorily scheduled full implementation date of 2018.”

http://1.usa.gov/1n64geD


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The Court’s January 2014 Order ordered the State’s April 30 filing do two things:◦Demonstrate the 2014 session took “immediate,

concrete action” to make “real and measurable progress” towards fully funding the State’s K‑12 schools by the 2017‑2018 school year; and

◦submit a complete full‑funding plan for each school year between now and the 2017‑18 school year.

“That was an Order. Not a suggestion.”

NEWS Response

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The Legislature did what it had been ordered not to do: “It offered promises about trying to submit a plan and take significant action next year—along with excuses for why the State’s ongoing violation of kids’ constitutional rights and court orders should be excused this year.”

The Court “should not condone the State’s violation of court orders.” The Court is requested to “take immediate, concrete action to compel compliance” with the Court’s orders.

NEWS Response

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At the very least, the Court should:◦Hold the Legislature in contempt of court;

◦Prohibit the State from adding more unfunded or underfunded mandates on its schools; and

◦ Impose even more serious sanctions on the Legislature if they do not comply with the Court’s orders by December 31, 2014.

http://1.usa.gov/TRDrPL

NEWS Response

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On June 12, 2014, the Supreme Court issued a “show cause order.” The State has been summoned to appear before the Court to “address why the State should not be held in contempt” for violating the Court’s Orders. The State is also to address why, if it is found in contempt, any of the forms of relief requested by the plaintiffs should not be granted.

http://1.usa.gov/1lssDBH

Supreme Court Order

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July 11: State’s response to the show cause order due to Court

August 11: NEWS answer to the State’s response due to Court

August 25: State may file a reply to the NEWS filing

September 3: Court to hear oral arguments in the show cause hearing

Date TBD: Court to issue further Orders

Next Steps…

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The Supreme Court’s McCleary decision, along with the state’s compliance reports, NEWS responses and the Court’s Orders are available on the Washington Courts website:

http://1.usa.gov/1iYjVdC

:

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McCleary Documentation

McCleary v. State

What Does the Future Hold?

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Real Per Capita General Fund-State Revenues(2009 Dollars)

Source: OFM, 12/13

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2013-15 & 2015-17 Budget Outlook

(Dollars in Millions)

Source: Economic & Revenue Forecast Council, 4/14

5757Source: Washington State Budget & Policy Center, 3/14

2015-17 Projected Budget Shortfall(March 2014)

58Source: Washington State Budget & Policy Center, 6/14

2015-17 Projected Budget Shortfall(June 2014)

5959

Additional Revenue Necessary to Sustain Investments in Education and

Other Priorities

6060

General Fund-State Revenues asPercentage of Washington Personal Income

Source: OFM, 12/13

Daniel P. SteeleAssistant Executive Director,

Government Relations825 Fifth Avenue SEOlympia, WA 98501

[email protected]

Education Litigation – Updated June 2014

mailto:[email protected]