The McCleary decision and school construction funding

By: Emily Makings
9:20 am
January 4, 2022

Last week Wahkiakum School District sued the state because the state “does not amply fund the facilities needed to safely provide all Wahkiakum School District students the ‘education’ to which they have a positive, constitutional right under Article IX, §1 of the Washington State Constitution.”

Article IX, Sec. 1 states, “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.” This section was the basis for the McCleary decision on school funding. (Here is our last report on the case and the state’s substantial funding response.)

Wahkiakum is asking the court to find that the “failure to amply fund” school facilities is unconstitutional and to award Wahkiakum with over $50 million for construction.

In Feb. 2020, Wahkiakum asked voters to approve a $28.75 million bond measure to renovate the high school and the K–8 building. It was rejected 34.49%–65.51%. (Note that even if bond measures could be passed with a simple majority, it still would have failed.) 2020 wasn’t a great year for bonds—statewide just 33.3% of bond questions were approved, which was the third lowest percentage going back to 1995. Wahkiakum asked voters to pass an enrichment levy (formerly known as maintenance and operations levies) in Feb. 2018, and it passed with 61.56% approval. (As we showed in this report, bond levies typically have much lower approval rates than enrichment levies.)

The Seattle Times reports that Wahkiakum’s attorney is Tom Ahearne, the plaintiff’s attorney in the McCleary case.

Ahearne said he expects the case to go the state Supreme Court and could potentially have a significant statewide impact, especially in small and rural districts. He speculates there’s a good chance the court will extend its reasoning in McCleary to capital funding and side with the Wahkiakum district.

I’m not so sure. In a Nov. 2017 order in the McCleary case, the state Supreme Court wrote, “the State is correct that full state funding of school capital costs is not part of the program of basic education constitutionally required by article IX, section 1.” Further, the order noted,

Though classroom space is obviously needed to maintain all-day kindergarten and reduced class sizes, capital costs have never been part of the prototypical school allocation model, and it is not solely a state obligation under the constitution. For example, article VII, subsections 2(a) and (b) of the Washington Constitution permit school districts to levy additional local property taxes for up to six years to support the construction, remodeling, or modernization of school facilities, and permit levies to exceed the limit of one percent of the value of property for the purpose of making required payments of principal and interest on general obligation bonds issued for capital purposes. Further, article IX, section 3 of the state constitution establishes the common school construction fund, which includes timber revenue, rental and other revenues, and interest on the permanent school construction fund as sources of revenue. And in chapter 28A.525 RCW, the legislature established the state school construction assistance program, the express purpose of which is “establishing and providing for the operation of a program of state assistance to school districts in providing school plant facilities.”

One of the points made in the suit is that in districts with higher valued property, property owners pay lower property tax rates to fund the same amount of capital construction costs. By basing construction funding on local approval of bond levies, the suit argues, construction is “dependent upon the whim of the district’s voters”—who may be less likely to approve a bond when they have lower incomes. That is an echo of the McCleary decision, which found that local levies could not be used for basic education. But, as noted above, school construction is not considered basic education and the constitution itself explicitly provides for local levies for school construction.

Additionally, the school construction assistance program (SCAP) provides state funding to districts. The first step in the process is planning, including a “Study and Survey” analysis, for which the state offers grant funding. (Wahkiakum received such a grant in 2019.) Districts have to have an approved levy to qualify for SCAP funding, but the state match is tied to assessed property values in the district. The 2021 state funding match for Wahkiakum is 58.87%, while for Mercer Island it is just 20.00%. (I wrote more about state funding for school construction here.)

Finally, the Times also quotes Brent Freeman, Wahkiakum’s superintendent, as being worried about the earthquake preparedness of the district’s schools:

But that’s not the only problem. “The fire system is in fact a fire hazard,” he said. Its control panel has gotten as hot as 370 degrees. He worries about a fire, too, resulting from outdated writing, noting that an electrical problem appears to have caused a fire that destroyed a school in Eastern Washington’s Almira district. “That scares me,” he said.

It’s worth noting that in an emergency like the Almira fire, the Legislature can make special appropriations. Gov. Inslee’s 2022 supplemental capital budget proposal includes $10.0 million to replace the Almira school.

Categories: Budget , Education.