As I reported last week, the state supreme court held yet another hearing in the nine-year-old McCleary school funding case. Earlier, the justices had decided to “retain jurisdiction” after their initial ruling, so they could attempt to direct the legislature on education policy.  So the draining McCleary process continues....

Last week the justices said their purpose was to discuss what to do about the $100,000 per day fine they had imposed on the state legislature in August.  Of course taxpayers, not lawmakers personally, are paying the $100,000 per day, and the money is going into an education account, so the court’s fine is more of a bookkeeping exercise than a real penalty.

Still, new twists occur.  Unexpectedly at last week’s hearing Justice Susan Owens exposed the Achilles’ heel of the McCleary process. 

One lawyer had noted that the court’s sanctions have failed, and proposed the justices now close down schools or impose tax increases.

To my surprise, Justice Owens pointed out the weakness of the court’s position.  If the justices try to close the schools, said Justice Owens, the legislature would simply re-open them.  If the justices order tax increases, the legislature would simply restore lower rates.  The most revealing statement came when she said the legislature could even change the education plan “from being a Cadillac plan to a Ford plan.”  She meant the legislature could simply change the state meaning of “basic” education and fund it at an appropriate level thus, by definition, fulfilling the court’s McCleary standard.

Justice Debra Stephens, author of the controversial McCleary decision, and the prime mover of the court’s “retain jurisdiction” process, swiftly changed the subject. She clearly wanted no further talk of how the legislature could re-set education policy and meet the court’s requirement for “fully funding” the schools. 

Here is the revealing exchange between the lawyer and Justice Owens:

(At 40:26) Justice Owens: “How does us saying now what we are going to do change anything? If we say we are going to void the tax exemptions [i.e. raise taxes], the first day of the legislative session they can re-enact all those exemptions. If we stop school, which is another solution that you and amici are recommending, then the legislature on the first day of the session could say, no, school’s back in session. If $100,000 a day isn’t coercive, how is announcing something else that could easily be changed by the Legislature going to be coercive?”

(At 41:00) Lawyer Ahearne: “Two things. This will give clear notice to the legislature that something they don’t like is going to happen and 2) we have been telling you for [nine] years now that the way your statutes are constructed and the way they are funded is unconstitutional. And we are declaring them unconstitutional. They can’t come back and say we are just going to re-enact an unconstitutional statute.”

(At 41:33) Justice Owens: “They can tweak it a little bit, make it a little different. They could change the plan, couldn’t they? Couldn’t the [education] plan go from being a Cadillac plan to being a Ford plan?”

The exchange points to the dead-end nature of the court’s decision to “retain jurisdiction” in an effort to direct education policy. The justices are struggling because there is a growing awareness that they made an enormous, and potentially embarrassing, mistake.  Their decision to “retain jurisdiction” in McCleary is unprecedented in a public education case.  It is an effort to use judicial power, a tool ill-suited for the purpose, to impose the will of nine justices on a large and complex administrative program.

Sanctions imposed by courts work in cases involving individuals, in order to achieve justice between parties in a dispute.  For example, a court sanction can force a dead-beat Dad to pay child support, or to require a business to compensate a defrauded customer.  A court sanction does not work, as Justice Owens now sees, to force one elected branch of government to adopt the policies desired by another branch. 

As Justice Owens points out, the justices know that if the legislature decides to change its education funding plan, the court must accept the new plan.  

In any case, by any reasonable standard, the legislature is already funding a solid public education program, at Cadillac levels, even if much of the money is absorbed by administration and union dues before it reaches students.  Here are the latest numbers:

• State revenue per student has increased to a record $9,024 in 2016-17;
• Total revenue from state, local and federal taxpayers has increased to nearly $13,000 per student;
• The legislature has increased school spending by 34% in four years;
• Since 2012, the state has provided $4.6 billion more to schools, to a total of $18.2 billion to schools in 2015-17;
• State education spending is at the highest point in history, and, at 47%, also represents the highest-ever portion of the state budget;
• The state’s largest district, in Seattle, now spends $15,000 per student, about twice the amount of private school tuition.