High court oversteps on education

By Richard S. Davis

A tough budget session got a bit tougher. Last week the state Supreme Court found that the Legislature has failed in its “paramount duty.” The obligation is found in Article IX, Section 1 of the state Constitution: “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders…”

The words, each freighted with consequence, are recited like the Pledge of Allegiance in education circles. Similar language is found in most state constitutions. Across the country, the provisions have been the fulcrum educators have used to leverage judicial intervention and increased funding. A cottage industry has grown up around “adequacy lawsuits.” The field is flush with educators and economists, activists and attorneys, all prepared to demonstrate that states have failed to meet nebulous and shifting constitutional standards.

In a detailed 79-page opinion the state Supreme Court looks at the record, defining the key words — paramount, ample and education — and rehearsing legislative history.

Ample, for example, means “fully, sufficient, and considerably more than just adequate.” Defining education is even more difficult for the justices, who make a heroic effort, while noting that it’s a moving target: “The legislature has an obligation to review the basic education program as the needs of students and the demands of society evolve.”

As scholars Joshua Dunn and Martha Derthick wrote in a 2007 essay for the journal Education Next: “Adequacy lawsuits are political events: they allocate things of value, and they propel the courts into an institutional sphere normally reserved for the legislature and the governor.”

Few disagree with the priority. If the court’s opinion helps protect school funding in the coming budget bloodbath, most people will applaud the outcome.

This is the second time the court has taken a comprehensive look at funding adequacy. The first opinion came down more than 30 years ago and sparked decades of legislative and executive efforts to define basic education (the constitutionally-protected share of school spending) and establish an adequate finance system. Yet, the court concludes the efforts fell short. Presumably to assure the failure is not repeated, the court now chooses to retain jurisdiction of the case through 2018. That’s the year in which legislators expect to complete the phase-in of 2009 education reform legislation, ESHB 2261. Somehow — it hasn’t specified — the court wants to stay involved to “facilitate progress” and hold the state accountable.

The governor’s recently released long-term budget outlook pegs the cost of implanting the legislation at $317 million in 2014, climbing to $724 million, $1.1 billion and $1.3 billion over the next three years. Deferring funding for such new programs is standard operating procedure when budgets are tight. Maybe not now.

The decision to retain jurisdiction drew a sharp dissent written by Justice Barbara Madsen and joined by Justice James Johnson. Agreeing that the state failed in its duty to fund the schools adequately, the two contend, “… it is the legislature’s duty to define what constitutes basic education and how to adequately fund education at that level. Adopting specific standards or guidelines for defining and funding basic education is a legislative responsibility; it is not a judicial function.”

Makes sense to me. The courts take a narrowly constrained view of the state budget, have no ability to raise revenues, and have so far failed to define what outcome would be satisfactory. Madsen and Johnson call the majority opinion “largely symbolic.”

Still, the record of the last 30 years, spurred by the court’s earlier decision, suggests lawmakers will heed the judicial warning. Increased funding cannot be easily separated from increased accountability and reform.

The court majority, echoing legislative centrists’ mantra — reform before revenues — acknowledged this, writing, “Pouring more money into an outmoded system will not succeed.”

The paramount duty is not the sole duty. We elect legislators to make difficult trade-offs, balance competing interests, and make wise use of available revenues. If they want more money, they must make their case to the public: Voters ultimately control funding.

The court overstepped. There are 3.7 million registered voters in Washington state. They control the purse strings. And they, not nine state Supreme Court justices, are the best and final judges of legislative performance.

Richard S. Davis, president of the Washington Research Council, writes on public policy, economics and politics. His email address is rsdavis@simeonpartners.com.