In new report, lawmakers cite separation of powers debate in McCleary case

April 29, 2014

Today at 2:00 p.m., the Joint Select Committee on Article IX Litigation of the Washington State Legislature (JSCAIXLWSL) sent a report to the Supreme Court in response to the justices’ latest order in the seven-year-old McCleary education funding case.

The Select Committee’s report lists the bills that passed and were proposed during the 2014 legislative session to fully fund basic education.  In the report lawmakers tell the Court that it is the Legislature’s duty to define the program of basic education and to fund it:

“With the bounds of the constitution, the Legislature retains authority for selecting the means for Article IX implementation.  And within the bounds of the constitution, the Legislature may change these means.”

The Select Committee also noted:

“...this case has not surprisingly sparked significant debate over the separation of powers and the role of the judiciary in budgeting policy.”

The justices may be disappointed with this response, to say the least. 

In the current budget the Legislature added $1.6 billion in funding for K-12 schools in 2013-15, boosting the two-year budget to $15.2 billion and bringing total funding per student up to $11,300 per year, the highest level in state history.  Still, the Legislature largely ignored the Court’s January 9th order that listed line-item education programs the justices think should receive more public money.

In 2012, the Court said it, “defers the Legislature’s chosen means of discharging its Article IX, section 1 duty” to fund public schools.  In their latest order, however, the justices appeared to reverse themselves, seeking to direct preferred levels of funding to selected education programs.

The Court has tried this approach before, with little success.  In 1978 the Supreme Court, in the Doran decision, issued orders that tried to achieve improvements in public education for children.  The effort failed, as the Court itself later noted.

With each passing year it seems increasingly clear the McCleary process is not working.  The McCleary lawsuit started in 2007.  Five years later, on January 5th, 2012, the state Supreme Court issued its decision.  Now, two years further on, the justices continue to wrestle with the long and tortuous process they created when they announced they would “retain jurisdiction” over the case and ordered lawmakers to submit regular reports.

The lack of progress is not surprising.  Courts are perhaps the least well-equipped part of our government to improve public education for children.  Our courts are good at resolving disputes between parties in a lawsuit and at interpreting what the law means.  Judges are not well-positioned to set public policy, to issue line-by-line budgets (as the Supreme Court attempted in its January 2014 order), or to manage complex programs like a statewide network of public schools.

Courts are not designed to write budgets, to provide oversight, to negotiate compromises, to hold public work sessions or to represent parents and other constituents – in other words – the vital work that elected lawmakers do almost every day.

A child in first grade in 2007, when the McCleary case started, will enter high school this year.  It may not be an exaggeration to say that the same child may have a first grader of her own by the time the McCleary process accomplishes its policy goals.