In Our View: School Ball in Court’s Court

State's top justices have no choice but to push Legislature to fulfill McCleary duty



The state of Washington could be headed for a constitutional showdown between the Supreme Court and the Legislature, and pundits are taking sides.

The court declared recently that lawmakers must appear before them in September to explain a lack of progress toward adequately funding public K-12 education. This has led editorial writers across the state to say the justices have “some type of self-inflated view” and that they are “self-aggrandizing” and that their order was “menacing.”

The kindling for all this fire was the court’s 2012 decision in McCleary v. Washington. Justices ruled that the Legislature for years had not adhered to the state constitution, which mandates that public education is lawmakers’ paramount duty. Using the Legislature’s own numbers, the court declared that the state must come up with an additional $3 billion in funding by 2018, and then the justices retained the right to tell lawmakers whether or not they were making adequate progress.

This has led to complaints that the Supreme Court doesn’t understand the basic principle of the separation of powers, that budget issues are the purview of the Legislature. But the justices point to previous failures by lawmakers to live up to their duties.

“The reason this court in McCleary retained jurisdiction is because of what happened in the wake of the 1978 decision,” Justice Debra Stephens, who wrote the unanimous McCleary decision, told The Columbian’s editorial board last month. Some 36 years ago, the state Supreme Court ruled that forcing districts to rely upon local levies to fund schools was unconstitutional … and then the Legislature spent three decades ignoring that decision.

That set the stage for the McCleary ruling and the court’s decision to tweak the noses of lawmakers. And while critics have questioned the role of the court, it is instructive to consider what the McCleary decision actually says. In the ruling, Stephens acknowledged that the court doesn’t retain jurisdiction in cases where the state violates, say, freedom of speech or freedom of religion. “With respect to those rights, the role of the court is to police the outer limits of government power,” she wrote. But in McCleary, “the court is concerned not with whether the state has done too much, but whether it has done enough. Positive constitutional rights do not restrain government action, they require it.” Stephens added that cases involving the paramount duty clause prove difficult for the court: “They test the limits of judicial restraint and discretion by requiring the court to take a more active stance in ensuring the state complies.”

Hence the hearing at the Temple of Justice in Olympia in September. If justices find the answers from legislative leaders to be inadequate, they could hold lawmakers in contempt; they could order the governor to sell state assets to pay for schools; they could shut down the school system until lawmakers pass adequate funding; or they could take over the budget-writing process themselves.

Any of these would represent an extreme reaction, and the citizenry will be better served if it doesn’t come to that, but lawmakers have brought this tongue-lashing upon themselves. Their duty has been clear through both the 2013 and 2014 legislative sessions, but their progress has been muddled. Questions about the court’s constitutional role should, indeed, be asked. But the Legislature’s failure to live up to its duty has been clear, and some form of enforcement is necessary. Taking sides? The smart money is on the Supreme Court.