Education Law Prof Blog: The Washington Legislature May Have Gotten the Supreme Court Off Its Back, But Is It Funding Schools Adequately?

Washington
 

Yesterday, the Supreme Court of Washington terminated its jurisdiction over the long running school funding case there.  The drama in the case has been second only to possibly Kansas, where the legislature had threatened the judiciary’s budget and appointment process in retaliation for the Court’ school equity decisions. The court then gave the state a deadline and said it would close the schools if the state didn’t fix the problem.

Washington did not threaten its judiciary, but it did sit on its thumbs for an extended period of time.  This led the court to impose a $100,000 a day fine until the legislature acted.  In the grand scheme, however, the fine was not much of motivator. As one legislator there remarked, paying the fine was cheaper than funding school adequately, so there was no hurry.

According to the court, the state has since taken several important steps.  The only missing ingredient—albeit a huge one—had been teacher salaries.  In 2017, the Court found that the state had passed several budget improvements but delayed the implementation of full funding of teacher salaries until 2019-20.  In other words, the state was giving itself another two years to get into compliance with the court’s order.  So the court retained jurisdiction and its fines.

In 2018, the state moved up that phase in phase in period for teacher salaries into the 2018 year. And that was finally enough for the court to find that the state had fully complied with its orders and “purged its contempt.” 

This order brought one the nation’s longest running school funding battles to an end, but two questions of longer term significance remain.  First, what of the fines?  Fining the state is an aggressive move.  I evaluated here whether it was an effective strategy for prompting compliance with school funding orders. My initial analysis was that fines can be effective, but they have to be large enough to be painful and they have to be collected.  Washington’s weren’t large enough.  And initially did not appear to be collected.

The new order reveals at sleight of hand on the sanctions.  In the bill that finally funded teacher salaries, the state also put $105 million into an account to cover its sanctions.  That was, of course, about three years after the court order the fines.  The state then took all the money out of that account and directed it toward teacher salaries and special education.

The plaintiffs, understandably, thought the state had been let of free. Hoping to exact at least some small token of a penalty, the plaintiffs asked that the court-imposed prejudgment interest on those fines.  The court declined.

The second lingering important issue—the most important issue—is whether funding in Washington is now adequate.  Bruce Baker’s recently analysis showed that as of 2015, the state had a long way to go to fund average student outcomes.  That outcome he notes is not the same as an adequate education, but rather the cost of reaching the achievement level of the average student in this country.  He found that Washington school districts in the top 40% of spending in the state were spending enough to achieve average outcomes. Those in the bottom groups had a long way to go.  Those districts in the bottom 20%, for instance, would need to increase funding by $10,500 per pupil to reach average outcomes.  Wow!

Well, we haven’t run the numbers yet, but here’s me guessing that Washington’s school funding measure didn’t close that gap, which is why the plaintiffs continued to dispute the adequacy of the state’s funding formula, even if the state had finally managed to take the steps the court had ordered. A local organization, Washington Paramount Duty, offered this statement:

We strongly disagree with the Supreme Court’s termination of McCleary. Any parent can walk into a classroom in Washington State and immediately see that our schools are not receiving the full and ample funding promised to our students in the state constitution.

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Derek Black

Derek W. Black is a Professor of Law at the University of South Carolina School of Law. His areas of expertise include education law and policy, constitutional law, civil rights, evidence, and torts. The focus of his current scholarship is the intersection of constitutional law and public education, particularly as...