Nearly one year after the Washington Supreme Court ruled that the state stands in violation of its constitutional duty to fully fund education, two things are becoming clear.
The court is serious about meeting the requirements of the constitution.
State legislators and the governor-elect are not.
The evidence is an exchange between the Legislature and the court as required by the court's ruling in McCleary v. State. After finding that the lawmakers and the governor have failed to meet the constitution's "paramount duty" to amply fund basic education, the court took the unprecedented step of retaining jurisdiction over the case until 2018. Between now and then, the court wanted annual reports from the state in which the justices expected to see the state "demonstrate steady progress" toward meeting its constitutional duties. That progress must be "real and measurable" so as to finish the job by 2018. But in its assessment of the state's first filing, the court found plenty of reporting but not much progress. "The state's first report falls short," wrote Chief Justice Barbara Madsen on behalf of the court.
The filing repeats the history already contained in the McCleary ruling and describes various committees created to study the problem, she noted. "But the report does not sufficiently indicate how full compliance with (the constitution) will be achieved."
Listening to partisan bickering that has not been altered by the court's mandate, it is hard to see how the next report will be any more satisfying. And while the court did not address itself to Gov.-elect Jay Inslee, it did not seem convinced by his recent statements that it had to be more patient."We're not going to resolve the McCleary decision in the next 12 months," Inslee said in a KING-TV interview. Wrote Madsen: "Each day there is a delay risks another school year in which Washington children are denied the constitutionally adequate education that is the State's paramount duty to provide."
High court gets active
The court is walking the edges of separation of powers. It has decided that it is no longer enough to see unconstitutionality but not do anything to remedy it. The court seems to have fully accepted the argument by the attorney for education advocates who brought the McCleary challenge that it can no longer stand on the sidelines. "The court is not some meaningless bystander that watches the other branches violate the constitution and make(s) excuses for why it can't get involved and write(s) an op-ed piece that says 'Hey guys, get around to complying some day,'" Thomas Ahearne said during oral arguments in 2011.
He only needed to cite the court's history with this issue, the 1977 ruling that the state was in violation of the paramount duty clause. But that time, the court did not retain jurisdiction and instead was cowed by separation of powers doctrines. While some progress was made in boosting state funding, reducing reliance on inherently unequal local levies, the problems returned 35 years later. "This court is an independent branch whose job is to compel the other branches to comply with the constitution when they are not," Ahearne said. "And for 30 years, the state has not."
How it enforces its ruling remains the big question. So far, the court is deferring to the Legislature in everything but the result. It is the Legislature's definition of basic education that is the standard. It is the Legislature's determination of what it costs to provide that education. The court only asks that the state stop studying and start acting.
"It is incumbent upon the State to lay out a detailed plan and then adhere to it," Madsen wrote. She said the court expects the report following the upcoming session of the Legislature to not just show a specific plan but also show progress toward meeting that plan. Progress means more money. "We cannot wait until 'graduation' in 2018 to determine if the State has met minimum constitutional standards."