New McCleary briefs argue Legislature’s fix doesn't go far enough

On Wednesday the plaintiffs in the McCleary case filed a response to the state’s post-2017 session report to the Court. Four other groups also filed briefs with the Court. None agreed with the state that it is now in compliance with the McCleary decision. 

The Seattle Times has a good summary of the five filings. Many of them argue that actual costs to districts aren’t fully funded, but they’re pretty light on evidence. Many also note that the fix isn’t to be fully implemented until after the September 1, 2018 deadline. Below are some thoughts I had about the briefs.

Plaintiff/Respondents’ Filing: The filing is colorful, as usual. It acknowledges that “The 2017 legislature made real and measureable progress moving the State towards the September 1, 2018 full compliance finish line.” But it faults the Legislature (unsurprisingly) for not fully funding education by Sept. 1, 2018.

Evidence on what actual costs would not be funded is minimal. For example, footnote 35 points to actual costs that weren’t funded in the past.  Also, when discussing the actual cost of staff salaries, it cites a 2012 report of the Technical Compensation Working Group (see page 35), but completely discounts the report from the consultant hired pursuant to SB 6195 in 2016.

The filing argues that levy reform is not relevant; instead, it argues the state should be using the general fund (GFS) to fund education first. That might very well be appropriate, but the filing displays some confusion about the budget here:

And the tax revenues for the State’s General Fund have dependably and regularly always been far more than enough to amply fund the State’s K–12 schools—dependably and regularly yielding an increasing amount every fiscal year since the January 2007 filing of this suit, and now at $97 billion. (20-21)

The citation points here. Total available funds are indeed $96.9 billion in 2017–19, but those include federal funds and dedicated funds. The amount that is in the GFS is $42.7 billion. Also, these figures include both the operating and transportation budgets. According to the official outlook, for 2017–19 there is $44.4 billion in the NGFS+ (the account that best reflects the entire budget situation; it includes the GFS, the education legacy trust account, and the opportunity pathways account). Over half of NGFS+ spending already goes to public schools.

The filing continues,

The State has never claimed (and truthfully cannot claim) that existing taxes already enacted by the legislature fail to dependably and regularly produce enough tax revenue for the State’s General Fund to amply fund the State’s K–12 public schools.

While it is unsurprising that plaintiffs only care about education spending, the state does have other priorities. Many are mandated by the federal government or the state constitution. Perhaps, as plaintiffs seem to suggest, if funding education first precludes spending for these other items within existing revenues, voters should be asked for more tax revenue to pay for the other items. But this ignores political reality: attempts to fund education first have been introduced in the Legislature and gone nowhere. 

Ultimately, plaintiffs say that unless the Legislature enacts a new budget (by March 8, 2018) that amply funds the actual cost to districts by Sept. 1, 2018, the Court should strike down or suspend “the tax exemption statutes enacted by the legislature” or “the State’s unconstitutionally funded school statutes.” Plaintiffs have previously asked the Court to do this, including last year. (Regarding the tax exemptions, they specifically say “enacted by the Legislature” as a way to keep the sales tax exemption for food, which was enacted by initiative.)

As it happens, the AG has previously explained why both of these options would be ill-advised. 

Brief of Washington State Budget & Policy Center and Others: EHB 2242 suspends the statutory growth limit for property taxes for four years. This brief argues that because the limit is reinstated in 2022, “the state property tax is not a dependable and regular revenue source for basic education funding” (1). The brief asks the Court “to strike down the Legislature’s prospective re-imposition of the 1% revenue cap” (2). If not,

the Court should retain jurisdiction and, through all appropriate means, compel the Legislature to identify and set aside regular and dependable tax sources sufficient to pay for basic education costs in a sustainable manner, well in advance of school districts preparing budgets for the 2021–22 school year. (2-3) 

Washington’s Paramount Duty Brief: This brief argues that the Court need not defer so much to the Legislature because the separation of powers theory is less relevant in Washington’s constitution than in the federal system. It also argues that “The burden should remain with the State to prove that its new plan to redress its constitutional violations is sufficient in this case” (4-5).

Oddly, the brief points to SSB 5977 as showing that the Legislature should not have had a hard time finding funding for basic education:

While it was unable to find funding for its ‘Paramount’ duty, however, the State was somehow able to find funding for other goals. And in SSB 5977 (2017), it cut state income which could have been used to satisfy its Article 9, [section] 1 duties. (7-8)

The brief fails to mention that SSB 5977 is estimated to reduce revenues by just $13 million in 2017–19. That amount would certainly not have made it possible to fully fund the salary piece this biennium. (I’m sure the group doesn’t mean to suggest that’s all it would take.) Additionally, the brief claims that “the tax cut’s ‘value would have grown to about $60 million a year by 2022 and $86 million annually by 2027’” (8). These figures refer to a provision of SSB 5977 that was vetoed by Gov. Inslee, so it has no relevance here.

As evidence that the bill doesn’t fund actual costs, the brief cites several analyses by school districts that I questioned in this post.

The brief asks the Court to “suspend the State’s over 700 legislative-enacted tax exemption statutes on April 1, 2018” if the state doesn’t amply fund the actual costs of basic education by March 15, 2018. The brief states that “any funding solution must safeguard other crucial state services and programs” (21). Further, footnote 20 notes that the group advocates for measures that “could include enacting a capital gains tax or seeking to collect on the never-repealed 1935 personal net income tax somehow.”

Civil Rights Organizations Brief: In arguing that actual costs aren’t covered, this brief seems to use as evidence the fact that OSPI’s 2017 budget request asked for more than the Legislature ultimately provided. It also says that actual costs aren’t funded because the Legislature hasn’t followed the 2010 Quality Education Council (QEC) recommendations. The QEC recommended K–3 class sizes of 15, but when the Legislature enacted many of the QEC recommendations in SHB 2776, it included a K–3 class size reduction to 17 students. This 17 student figure has force of law and is the end point included in the 2012 McCleary decision. To suggest that the 17 student class size is unconstitutional because it isn’t 15 is moving the goal posts.

Special Education Advocates Memorandum: This filing argues that the cap on state funding for special education is unconstitutional. Since 2009 (ESHB 2261), the state has provided an excess allocation for special education students but it has been capped at 12.7 percent of a district’s total enrollment. EHB 2242 increases the cap to 13.5 percent of enrollment. The McCleary decision did not say that the cap itself was unconstitutional, so the argument here seems like a separate issue.

The filing asks the Court to “retain jurisdiction and order additional solutions” (14). There’s no specification as to what those solutions might be.

Add new comment