McCleary v. State of Washington Education funding litigation…and its implications

1. CR-ESD 113 Superintendents’ Meeting Tumwater, May 28, 2014 McCleary v. State of Washington Education funding litigation…and its implications

2. McCleary v. State - Overview • History of Education Funding & Litigation • McCleary Case & Decision(s) • Implementation of McCleary • What about the future?

3. Paramount Duty Clause • “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 1 Washington State Constitution

4. Education Funding & Litigation • 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

5. Education Funding & Litigation • 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

6. Education Funding & Litigation • 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

7. Dollars in Billions

9. Local levy revenue at the same level as before Doran Decision Source: OSPI 5/10

10. Local Levies as a Percent of All School Districts’ Revenue Source: Joint Task Force on Education Funding, 11/12

11. McCleary v. State • 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. “

12. McCleary v. State “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

13. McCleary v. State • 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

14. Legislative Response • 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

15. Legislative Response • 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

16. McCleary v. State • 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

17. McCleary v. State • 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.

18. McCleary v. State • 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

19. McCleary v. State • 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

20. McClearyv. State Implementing McCleary

21. ESHB 2261 – Program Changes Required

22. SHB 2776 – Funding Changes Required 22

23. SHB 2776 Resource Phase-in Source: OSPI, 5/10

24. Education Funding Task Force 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 24

25. 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 25

26. Education Funding Task Force

27. Education Funding Task Force Adopted Spending Plan Source: Joint Task Force on Education Funding, Final Report, 12/12

29. McCleary v. State Is the State making “steady progress” toward full compliance with Article IX, Section 1 of the Constitution?

31. Initial McCleary Investment 2013-15 Operating Budget Initial McCleary Basic Education Investment 2013-15 Operating Budget 31

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

33. 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

34. McCleary v. State The Supreme Court retained jurisdiction in the case, requiring annual compliance reports

35. State’s 2nd Compliance Report • 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…”. 35

36. State’s 2nd Compliance Report • 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.” 36

37. State’s Conclusion • “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 37

38. NEWS Response • 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 38

39. NEWS Response • 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 39

40. NEWS Conclusion “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.” http://1.usa.gov/1hw2tbY 40

41. McCleary v. State Supreme Court issues new Orders on January 9, 2014

42. January Supreme Court Order • 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.” 42

43. January Supreme Court Order • 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.” 43

44. January Supreme Court Order • “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/1evdg54 44

45. State’s 3rd Compliance Report • 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.”

46. State’s 3rd Compliance Report • 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.”

47. State’s 3rd Compliance Report • 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

48. NEWS Response • :  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.”

49. NEWS Response • 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.

50. NEWS Response • At the very least, the Court should: • Hold the Legislature in contempt of court; • Prohibitthe 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