Unlike the 174 nations that have the responsibility of education written into their constitutions, the U.S. does not. In effect, educating young people in the U.S. has been left to the individual 50 states. Upon its founding, the state of Washington declared the necessity of a public education that is fully funded and free of discrimination:
“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.”
Furthermore, “The legislature shall provide for a general and uniform system of public schools.”
Nevertheless, our state legislators have refused live up to the “paramount duty of the state” by creating a legacy of dancing around to making “ample provisions for the education of all children.” In January nearly 7,000 protesters came to the steps of the Legislative Building on Martin Luther King, Jr., Day to call out legislators for their inactions. January’s protest, however, is part of a long history of foot-dragging and excuses by the legislature to meet their constitutional responsibility.
Student Bill of Rights
At the January rally the Washington Education Association unveiled a Student Bill of Rights. Each aspect of the Student Bill of Rights requires fully funding for an adequate education. The highlights of the Bill of Rights include:
“All students have a right to well-maintained schools, current curriculum, safe transportation and adequate school supplies. Students must have access to 21st century technology. Special education, gifted, learning assistance program, and transitional bilingual education for English language learners are essential.”
“All students have a right to small class sizes and professional support services that provide the individual one-on-one attention they need.”
“All students have a right to be taught by caring, committed and qualified teachers and education support professionals.”
“All students have a right to learn in clean and safe school facilities, including ample classroom space equipped with modern technology.”
“All students have right to attend local public schools that have the flexibility to meet their unique needs.”
The preamble to the Student Bill of Rights states, “Washington’s 1.1 million public school students have a constitutional right to an amply funded public education, regardless of their ZIP Code or family background. Quality public education is a civil right in our state.”
Inadequate funding for basic education
Legally, the funding issue comes down to what is referred to as education-adequacy. According to a Harvard Review Law article, “‘Adequacy’ claims challenge a state’s education system— usually its funding scheme—as violating the education clause of a state constitution.” The court challenge in our state is McCleary v. State of Washington, generally referred to simply as the McCleary Decision (a time-line is at the conclusion of this article).
To grasp the long arch of the McCleary decision requires going back to 1978 when the Seattle school district went to court (Seattle School District v. State) to call into question Washington’s practice of relying on the inadequacy of unequal local tax bases to fund state education. The court ruled at that time that the legislature must define “basic education” and provide a reliable state-level source of revenues to fund public education. The legislature’s own rules make clear what the minimum requirements for a basic education:
“School districts must provide instruction of sufficient quantity and quality and give students the opportunity to complete graduation requirements that are intended to prepare them for postsecondary education, gainful employment, and citizenship. The program established under this section shall be the minimum instructional program of basic education offered by school districts.”
The McCleary decision makes clear that the legislature has side-stepped its constitutional responsibility to live up to the laws that governing body actually created.
Apparently complex mathematical funding formulas are too difficult for the majority of our legislators. Rather than tying funding to the various needs of a diverse student population, the 2008 the legislature defaulted to a simplistic school funding formula based on number of students in a district and a staff mix based on years of teaching experience. Easy enough – if you’re willing to join in a model used only by six other states not particularly known for outstanding educational systems: Idaho, Wyoming, Alabama, Tennessee, West Virginia and North Carolina.
Are the poor really in “great shape?”
More commonly, states have created a “weighted-student” approach of funding that recognizes that different student needs may require additional funding than would be provided for a student of average ability. Washington appears to have an equality model, but in practice has created an inequitable system that discriminates against children based on the school district where they live.
Let’s look at this inequitable mess the lackluster legislature smugly developed. According to a Seattle Times investigative report, “learning assistance” programs for low-income students distribute funds differently across school districts due to the legislature’s crude funding formula. A learning assistance program for the poorest district in the state, Tukwilla, provides $440.48 per pupil from the state to pay for tutoring, after-school classes and other learning assistance for each low-income student. If that same child were in the Northshore district, it’d be $479 per poor kid. And in Everett it jumps $493. A $53 differential per poor student results between Tukwilla and Everett, or a 11% state funding advantage for low-income children in Everett than a place-bound child in Tukwilla.
Yet, state Republican Senator Ann Rivers somehow can use pretzel logic to conclude, “If you are poor, you are in great shape. If you are rich, you are in great shape. But all the people in the middle, we are the ones who are really struggling.” Well, we all know the wealthy are doing fine and the middle-class is sinking closer daily to lower economic levels. But, wow, it’s likely news to the poor family in Tukwilla that the poor are in “great shape.” No data, just conservative fabrications.
Supreme Court vs. the Legislature
What the state now has is a stand-off between the judicial branch of government—the State Supreme Court—and the legislative branch. Meanwhile, education—which is administered by the executive branch—is left dangling at the mercy of a Republican majority that apparently could care less about meeting their constitutional duty for education.
Starting in 2015, the Washington Supreme Court began assessing the legislature a $100,000 fine per day until it takes concrete steps to meet the state’s “paramount duty” to adequately fund pubic education for all children. In certain regard, the fine is symbolic since only the legislature itself can create funding to pay for such a fine. Regardless, the fine represents a stand-off that rarely ends in the favor of the courts. Rare examples exist, such as the New Jersey Supreme Court having once followed through on closing public schools until a better funding arrangement was created. The Kansas Supreme Court once threatened to do the same, but didn’t have to because their legislature got the message. The Washington Supreme Court at this time, however, does not appear to be leaning toward shutting down public education in Washington as a judicial strategy to move the legislature to create a viable plan that can full fund education.
The anti-tax sentiment in the legislature works against creating new revenues to meet the mandate of the McCleary decision. Despite Washington having some of the wealthiest citizens in the U.S. (think Amazon, Microsoft, etc.), the state does not have an income tax. Scare tactics by the conservatives helped to defeat a 2010 state referendum to tax the income of individuals making more than $200,000. The proposed initiative would have generated $2 billion per year to a trust fund for health and education, according to The state’s Office of Financial Management.
Absent a progressive tax system that takes a larger percentage from high-income earners than it does from low-income individuals, Washington is one of the few outlier states that depends on a regressive tax system to fund government operations, including public education. Because a regressive tax is applied uniformly to all situations (such as a sales tax), regardless of the payer’s income level, Washington’s system of taxation takes a larger percentage of income from low-income earners than from high-income earners.
The only real hope with the 2017 legislative session is for the citizenry to petition their local elected officials for action, including the creation of new revenue sources. Another is for teachers to continue to build a popular education campaign that could result in a general strike that would stop business as usual in order to reverse the process of inequitable and inadequate educational funding. If this were Europe, the general strike would be understood as viable option. Maybe it is time to recall the 1919 Seattle General Strike that effectively shut down the city over promised pay raises. Ultimately, the question of fully funding education rests with the extent to which the citizenry is willing to hold the legislature to its constitutional responsibility.
McCleary Timeline 2007-2017
January 2007: The McCleary family, along with dozens of school districts, local teachers unions and a host of others, sue the state, alleging it is not meeting its constitutional duty to adequately fund public schools.
February 2010: A King County Superior Court judge sides with the plaintiffs.
January 2012: The Supreme Court upholds the King County ruling, ordering the state to raise education spending. The court sets a 2018 deadline, matching what the Legislature promised.
July 2012: The court orders the state to give progress reports after each legislative session.
December 2012: The court says the state’s first progress report is inadequate.
January 2014: The court gives the state until April 2014 to provide a plan to fully fund basic education.
September 2014: The court finds the state in contempt for failing to comply with its January order. Court delays sanctions until after the 2015 legislative session.
April 2015: Court grants extension on sanctions as lawmakers go into special session to negotiate a two-year state budget.
August 2015: Court orders sanctions of $100,000 a day against the state, saying the Legislature still hasn’t provided a sufficient plan. Source: State Supreme Court, Seattle Times archives
July 2016: “Superintendent of Public Instruction’s Amicus Brief Addressing 2016 Legislature’ Compliance with McCleary”
October 2016: Washington’s Supreme Court extends deadline for Legislature to comply until the end of 2017 legislative session.
January 2017: Neither the Republicans nor Democrats provide any plan to fully fund pubic education.
Dr. Michael Vavrus lives in Olympia and is a professor at The Evergreen State College. He is the author of Diversity and Education: A Critical Multicultural Approach (2015). For more information about Michael, including his recent commentaries, go to http://www.michaelvavrus.com/