The state revenue shortfall will force the state Legislature to make many difficult budgetary decisions. Given that, and that remote learning will seemingly be the norm for schools this fall, I’ve been thinking a lot about the protected nature of basic education funding.

In 2019–21, state appropriations for public schools total $27.251 billion from funds subject to the outlook. Most of that is considered basic education, and basic education spending makes up about 49 percent of the state operating budget. (Basic education includes most of general apportionment, most compensation, most pupil transportation, most special education, all institutional education, all of the highly capable program, all of the transitional bilingual program, and all of the learning assistance program.)

In a recent policy brief, we wrote about how some areas of the budget are harder to cut than others. Basic education is at the top of the protected list, as it is the paramount duty of the state under the constitution. But that doesn’t mean it can’t be cut.

As the Supreme Court held in the McCleary decision,

The legislature has an obligation to review the basic education program as the needs of students and the demands of society evolve. From time to time, the legislature will need to evaluate whether new offerings must be included in the basic education program. Likewise, the importance of certain programs or offerings may prove less compelling over time.

The legislature generally enjoys broad discretion in selecting the means of discharging its duty under article IX, section 1, including deciding which programs are necessary to deliver the constitutionally required “education.” But to ensure that the legislature exercises its authority within constitutionally prescribed bounds, any reduction of programs or offerings from the basic education program must be accompanied by an educational policy rationale. That is, the legislature may not eliminate an offering from the basic education program for reasons unrelated to educational policy, such as fiscal crisis or mere expediency. Rather, the legislature must show that a program it once considered central to providing basic education no longer serves the same educational purpose or should be replaced with a superior program or offering.

(Citations omitted.)

The pandemic has forced the closure of schools. What happens to basic education funding if the services promised aren’t being provided?

For example, pupil transportation is considered part of basic education. Students did not need transportation to school in the spring, and many won’t need it in the fall. Given that, any cuts to transportation could plausibly be due not to a “fiscal crisis,” but to the fact that it “no longer serves the same educational purpose.” And, thereby, the cuts could be constitutional. (OSPI has said that school districts will continue to get “their full transportation allocations for the months of September 2020 through January 2021.”)

A similar analysis could apply to the other aspects of basic education. How many instructional hours are really being offered? Will the full amount of materials, supplies, and operating costs really be needed with schools operating only remotely?

The federal CARES Act provided $216.9 million for elementary and secondary schools in Washington. This CARES Act funding can be used for almost any purpose. There are maintenance of effort provisions related to state funding, but they are not particularly binding for Washington given the runup in K–12 funding in recent years. According to the U.S. Department of Education, the state must maintain K–12 support for FY 2020 and FY 2021 at the average level of state support for FY 2017, 2018, and 2019. State K–12 appropriations are $13.271 billion for FY 2020 and $13.981 billion for FY 2021. The average over 2017, 2018, and 2019 was $10.686 billion. (Further, the CARES Act allows the maintenance of effort provision to be waived for states “that have experienced a precipitous decline in financial resources.” Such waivers will be considered at the end of FY 2021.)

Many worthy state programs will have to compete for shares of a smaller revenue pie. The Legislature may reasonably ask whether schools are providing the services the state is paying for.