Washington State Supreme Court Criticizes Education Funding Lawsuit
On Tuesday, June 28th, the Washington State Supreme Court heard the State Attorney General’s appeal of the Education Funding Lawsuit. The Justices criticized three aspects of this lawsuit. First, they noted that the plaintiffs had addressed only one of three Constitutional provisions relating to school funding. Second, plaintiffs had failed to challenge any specific laws as Unconstitutional. Third, and most important, plaintiffs had failed to provide a specific remedy as to exactly what would be a Constitutional level of school funding.
Since this case will directly affect the future of one million school children and is therefore the most important case heard by our Supreme Court in the past 30 years, we will review each of these three concerns – explaining why all three Constitutional provisions are being violated, describing the exact laws which are unconstitutional and providing a series of remedies which would lead to a Constitutional increase in school funding of more than $5 billion per year – without any increase in taxes on middle class families – simply by rolling back tax breaks for wealthy corporations to what they were in 1996. This would not hurt these corporations as they could deduct their State taxes from their federal taxes. But it would restore school funding in our State to the national average.
Given the importance of this case, it is reasonable to ask why the plaintiffs omitted or ignored so many serious violations of our State Constitution. One possible answer is that they did not want to offend the current powerful leaders of our Legislature – who have committed these crimes against our children by passing unconstitutional laws such as House Bill 2261 in 2009 and House Bill 2893 in 2010. Sadly, in trying to limit their case only to general “politically correct” statements, the attorneys for the plaintiffs may have put at risk the future of an entire generation of school children who are counting on us to provide them with a fair chance at success in school and success in life.
What is particularly distressing for the Supreme Court was the Plaintiffs’ failure to challenge the rise of local property tax levy lids as being a violation of Article 9.2 of our State Constitution (the School Uniformity Clause). Our Courts are known as Courts of Equity and therefore a challenge of the rise in Levy Lids would have almost certainly met with success. The Supreme Court has promised to issue their opinion by the end of the year. But in failing to include several important issues of equity, and focusing only on the adequacy of school funding, the plaintiffs have taken a “slam dunk” case and turned it into one whose outcome is now uncertain.
Background of the News Coalition Lawsuit
In February, 2010, a King County Trial Court ruled what every parent and teacher already knows – that the State legislature is violating our State Constitution by under-funding schools by BILLIONS of dollars. The Trial Court required the State to stop using unreliable local levies – which unfairly transfers the school funding burden to local homeowners – and to start providing schools with stable, dependable and more adequate funding from State sources – like rolling back corporate tax breaks and requiring wealthy corporations to pay their fair share of State taxes.
In response, just days after the Trial Court declared that the Legislature must REDUCE reliance on local levies to fund schools, the Legislature passed House Bill 2893 – which INCREASED the levy lid – and led to a 50% increase in school related property taxes here in East King County during the past 2 years. None of these tax dollars went to our children. Instead, the increase in local property taxes went to pay for billions in additional tax breaks for wealthy corporations. Despite huge local tax increases, total school funding was actually decreased. School funding in our State, as a percent of income, has fallen from 11th in the nation to 49th in the nation – while class sizes have risen to near the highest in the nation.
- Lawsuit Addresses only One of Three Constitutional Provisions
Several members of the Supreme Court actually quoted Article 9.2 of our State Constitution and asked the plaintiffs why they failed to include this issue in their lawsuit. The plaintiffs had no answer. We will look at all three Constitutional Provisions and explain why all three should have been addressed in the Plaintiff’s legal briefs.
Washington State Constitution, Article 9 (on Education Funding)
SECTION 1 PREAMBLE. 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.
SECTION 2 PUBLIC SCHOOL SYSTEM. The legislature shall provide for a general and uniform system of public schools.
SECTION 3 FUNDS FOR SUPPORT There is hereby established the common school construction fund to be used exclusively for the purpose of financing the construction of facilities for the common schools.
Article 9.1 of our State Constitution demands that providing for the education of our children is the paramount duty of our State government. Article 9.2 of our State Constitution requires that our State provide a “uniform system of public schools.” Article 9.3 provides a fund to be used for the construction of public schools – making it clear that the duty of the State legislature includes not merely funding the operation of schools, but also their construction and repair. The legislature has violated all three of these Constitutional Requirements. But the NEWS petitioners only referred to Article 9, Section 1.
Adequacy versus Equity versus Scope?
Article 9.1 refers to the adequacy required. The Constitution states that school funding must be AMPLE which is more than merely the minimal amount. Article 9.2 refers to equity. It states that school funding must result in a uniform opportunity for all students. A tax system of high local levies – which results in a few rich schools and many poor schools is not permitted in our State. Article 9.3 refers to the scope of school funding required. It states that the Legislature is responsible not merely for the operation of schools, but also for their repair and construction.
Schools all across the US have gone to court to seek fairer funding for our children. There have been many successful lawsuits over adequacy, equity and scope of school funding. The NEWS petitioners sadly based their case almost entirely on Adequacy. But criticism from our Supreme Court Justices indicated that they were equally concerned about equity and scope of school funding and were disappointed that the petitioners had ignored these other important issues.
Ironically, the biggest decrease in school funding in the past 30 years has not been in Operations or in Equity, but in the area of school construction funding. In 1987, the State paid for over 67% of the actual cost of school construction with only 33% paid by local homeowners. Currently, the State pays for less than 15% with the other 85% paid for by local tax payers. Thus, the tax burden on local tax payers for school construction has more than doubled in the past 30 years!
Strangely, Page 48 of the Respondent’s Brief of the NEWS Plaintiffs, submitted to the Supreme Court on September 27, 2010, actually HID the extent to which State funding for school construction has plummeted during the past 30 years by starting their chart at 1994 – after most of the decline in school construction funding had already occurred:
The above chart makes it appear as if school construction State funding had only fallen from 25% to 15% – when it had actually fallen from more than 65% to less than 15%.
In addition, Reference 118 refers to Exhibit 7 of the 2008 OSPI School Construction Transparency Study, page 15. As is stated on Page 15, the above chart only includes ELIGIBLE costs, which excludes a huge number of actual school construction costs of everything from land, to design and in some cases excludes the entire school construction project. This is the paragraph on OSPI page 15:
What actually matters is the State percent of ACTUAL Costs – not just the State percent of “Eligible” costs. State percent of actual costs is not shown on Exhibit 7. Instead, it is shown on OPSI Exhibit 6 which is on pages 14 of the OSPI report. Unfortunately, Exhibit 6 only includes data from 1992 on. Data from 1985 to 1991 is found on Exhibit 9 on OSPI Report page 17. It is possible to reconcile Exhibits 6 and 9 because from 1985 to 1991, the eligible costs were only about 3% below than the actual costs. Thus, Exhibit 9 on OSPI page 17 plus 3% can be used for the years between 1985 to 1991 while Exhibit 6 is more a more accurate account of State funding as a percent of actual costs for the years after 1991.
This huge plunge in State School Construction Matching funds from more than 67% to less than 15% – has led directly to the failure of billions of dollars in school construction projects in the past 10 years – including one billion dollars in failed school construction projects in 2011:
Failed School Bonds Lead to 100,000 Children in Washington State Attending School in Particle Board Boxes
Due to nearly $10 billion in failed school construction bonds, the percentage of students in our State forced to attend school in portable particle board boxes has skyrocketed to over 10% – or a total of more than 100,000 children. This is twice the national average of 5%. At 500 students per school, the State would need to build more than 200 schools and hire thousands of teachers just to reach the national average in school construction funding. Yet this issue was barely mentioned by the NEWS petitioners.
Our State Constitution requires a uniform system of public schools. It is not uniform when one school district such as the Snoqualmie Valley School District has TWICE the rate to EIGHT TIMES the rate of un-housed students as the school districts just to the west of us. Because the State legislature refused to provide our growing community with adequate State Matching funds, the bond to build a new second high school (and another needed elementary school) went down to defeat 3 times in a row in 2007 and 2008. We were therefore forced to pass a $27 million bond to build a dozen portable classrooms. Ironically, because these are not “permanent” buildings, the State legislature refused to offer any Matching Funds for these either. Currently, 16% of the children in the Snoqualmie Valley School District are attending school in temporary buildings. Within the next 2 years, over 20% – or one in five children in our School District will be attending school in these particle board boxes.
Washington State now has over 100,000 un-housed children without permanent classrooms
In 2008, the State Auditor issued a study of the ten largest school districts in Washington State. These ten very large school districts include 250,000 children – or one in four school children in our State. The study found that 10% of all the classrooms in these 10 districts were portable classrooms. Two school districts, Puyallup and Evergreen, were above 25%. This is way above the national average. According to the National Center for Education Statistics, the national average rate for portables is 6%.
In 2008, the Washington State Health Department released a report confirming the fact that many schools do not meet Health Department standards – including failing to have a safe source of drinking water. Many also fail to meet county Building Code standards. Put another way, of the one million school children in our State, about 100,000 are attending school in particle board boxes with known health and safety risks and at a much higher long-term cost to State tax payers than if they were housed in real permanent school buildings. The problem with putting 100,000 kids in particle board boxes is not merely that they are the wrong shape and were never designed for group learning. More important, these buildings suffer from inadequate ventilation and present health problems to students and teachers. In addition, portable buildings have long term costs which are twice as high as simply building real schools. So we are harming both school children and tax payers by housing children in temporary portables instead of providing them with real schools. Thus, portable buildings should never be viewed as anything more than an emergency temporary solution. Given the clear violation of Article 9.2 and Article 9.3, it is extremely disappointing that the NEWS Coalition Petitioners failed to mention any of the above problems.
- Plaintiffs Failed to Challenge the Constitutionality of any specific laws
During the one hour Supreme Court hearing, which you can watch online via TVW, there were several complaints by Justices. Some noted that the legislature has repeatedly raised the local property tax lid. Yet they wondered why the Petitioners failed to challenge any of these specific laws as being unconstitutional. Instead, the NEWS Coalition petitioners rested their case on the more general claim that the State was not adequately funding public schools – without explaining which laws were leading to the inadequate funding. We will therefore describe four specific laws which are unconstitutional, explain why they are unconstitutional and what the petitioners should have asked for in the way of specific remedies.
- Why the Education Reform Act of 2009 is Unconstitutional
The Education Reform Act, also called House Bill 2261, was sadly used as an example of how the State is “making progress.” This bill claims that it will fund the actual cost of Basic Education beginning in 2018. But in addition to being nothing more than an empty promise, it actually eliminated the minimum funding levels of the Basic Education Act of 1977 and set the stage for the budget cuts were have been seeing ever since. It was worse than a delay in funding – it was a severe and unconstitutional reduction in State education funding. While the petitioners referred to House Bill 2261 was a sham and a shell game, what they should have said was that several specific sections in the bill itself – including the sections delaying funding and the section eliminating the floor were unconstitutional. The specific remedy would be for the court to strike the unconstitutional sections of House Bill 2261 and insist that the legislature restore the minimum level of funding in the Basic Education Act of 1977 and develop a plan which funds schools over the national average without delay.
Page 16 of House Bill 2261 is where the 1977 Basic Education Act minimum funding language is eliminated:
Plain English: The 1977 Basic Education Act guaranteed a ratio of 49 teachers to 1000 students, for a ratio of 21 students per teacher. Adding in 20% to provide for one teacher planning period per day, this ratio converts to an average actual class size of about 25 students per teacher. ESHB 2261 eliminated this minimum level of funding and replaced it with language that allows the legislature to arbitrarily reduce funding and increase class sizes to whatever it wants and whenever it wants
- Why the Levy Lid Act of 2010 is Unconstitutional
The Levy Lid Act, also known as House Bill 2893, raised the levy lid from 24% to 28%. But it also dramatically expanded the base for calculating the lid to include imaginary payments the State has never made. The effect was to increase local school related property taxes by up to 50%. There are two problems with high local levies. First they are not a stable, dependable source of funding. A single levy failure could lead a school district to financial ruin. Second, an equally important, Article 9.2 of our State Constitution required a uniform system of schools. High levies can easily be passed in school districts like Bellevue and Mercer Island with high commercial property valuations. But the burden is much more difficult and unfair in school districts with lower valuations per pupil. This is why school funding is much less in the Snoqualmie Valley, compared to the Bellevue School District, even though property taxes are 50% higher in the Snoqualmie Valley than they are in Bellevue. High levy lids lead to a two tier system of a few rich schools and a whole bunch of poor schools. The specific remedy could have been to strike this entire law and restore the Levy Lid Act of 1978 – which would roll back the cap on local school related property taxes from 28% back to 10%. In addition, the Court must prohibit the “grandfathering” of any levies over 10% – a practice which also results in a two tiered system of school funding.
Levy Lid Rate increases 1984 to 2010
These huge increases in local property taxes are part of an unconstitutional decades-long transfer of the tax burden on to the backs of local homeowners. Huge Local School Levies and School Bonds were ruled unconstitutional by our Supreme Court more than 30 years ago. In the late 1970’s, our Supreme Court ruled that our legislature could NOT transfer the burden to pay for public schools onto the backs of local homeowners through the use of unfair and undependable local levies. (Seattle School District No. 1 v. State, 90 Wn.2d 476 (1978). This case may be downloaded from the website: legalwa.org).
As a consequence, the maximum local property tax levy lid was set at 10% of State funding.
However, since 1980, the legislature has ignored our State Constitution and our Supreme Court and repeatedly raised the local property tax levy lid. It is currently at 28% and many legislators have submitted bills to raise the levy lid to 30% or even higher.
As a consequence of the legislature repeatedly raising the local property tax levy lid, local School Related Property Taxes in absolute terms have risen by more than 1000% since 1980 – from $150 million to more than $1.5 billion. Anyone who has owned their home since 1980 knows this, so this information is mainly for those who have not owned their home for an extended period of time.
High Local Levies unfairly punish children and homeowners in low property school districts
One of the many reasons the Drafters of our State Constitution did not want to rely on local property taxes to fund public schools was the recognition that such as method creates a two tier system of rich schools in communities with high property valuations per child and poorer schools in communities with low property valuations per child. Thus our State Constitution requires our legislature to provide our school children with a State wide “uniform” system of public schools so that every child in our State has a fair chance at success in life.
The difference in property valuation per child in different school districts in our State is dramatic. As the following chart shows, the Seattle and Bellevue School Districts have property valuations per child that are twice as high as valuations per child in Issaquah and Snoqualmie Valley – and three times as high as property valuations per child in the Tahoma School District. Thus, the tax property burden on homeowners in Issaquah and Snoqualmie Valley are twice as high as they are in Bellevue and three times as high in Maple Valley as they are in Bellevue and Seattle.
As a result of much lower property amounts per child in less affluent school districts, property tax rates in less affluent school districts are much higher than property taxes in wealthy school districts. Raising the levy lid in 2010 was a clear violation of Article 9.2 of our State Constitution, and was brought up by several Supreme Court Justices during the June 28, 2011 hearing – but it was not addressed by the Plaintiffs.
- Why the Appropriations Act of 2011 is Unconstitutional
The Appropriations Act of 2011, also known as House Bill 1087, has several specific sections which were unconstitutional. An obvious one, was the beginning balance of a MINUS $80 million. No other legislature has ever left a negative balance. This is because our State Constitution requires a balanced budget. It is common to leave a $200 million cushion in the Reserve. So really, this was robbing the next biennium of $280 million.
Even worse, the legislature FAILED to make the June Basic Education Payment to Public Schools – a clear violation of Article 9.1 of our Constitution. This has also never happened in the history of our State. But it was never mentioned in the final brief of the Plaintiffs or during their oral argument. The claim was that this $128 million would be paid in July. But the reality is that the legislature just cut another $500 million in other education funding – meaning that schools will never see the $128 million (see page 204 of House Bill 1087).
The following is a remarkable statement in the rough draft of House Bill 1087, openly admitting that this bill does is not meeting its constitutional obligation to fund public schools:
The remedy for this violation would be to require the State Legislature to make ALL Basic Education payments on time in the future and to leave a POSITIVE ending balance so as to not jeopardize the next school year’s funding.
- Why the State School Construction Funding Formula is Unconstitutional
The biggest hit was actually in the Capital Budget. Our schools have a construction and repair backlog of several billion dollars. State Matching funds have fallen from 67% of actual cost to less than 15% of actual cost. Because of the lack of State Matching funds, in April 2011, another billion dollars in school projects went down to defeat. Yet the plaintiffs failed to point this out – and failed to quote the laws which contained the formulas which led to the dramatic decline in State Matching funds for school construction and repair. The cost of omitting this single item was over one billion dollars per year. The following diagram depicts the unconstitutional laws and formulas which have caused State funding for school construction to plummet (from the 2008 OSPI School Construction Transparency Study):
The obvious specific remedy would be to ask the court to declare those specific laws as unconstitutional and require the State to fund the actual cost of building and repairing public schools – whether a school bond can be passed in a local school district or not. In addition, the State should be order to build schools until the number of “un-housed students” in our State is reduced from the current State average of 10% to the national average of 5%.
III. Plaintiffs Failed to Demand a Specific Remedy
Some Supreme Court Justices also complained that there was no clear remedy being sought. They noted that even if they agreed with the plaintiffs that school funding was not adequate, they were not in the business of finding a specific solution as the plaintiffs had never laid out a clear specific remedy. We will therefore define several specific remedies which the Plaintiffs should have asked for – remedies which if achieved would actually honor the Constitutional Mandate to amply and uniformly fund the operation and construction of public schools.
An Objective Standard for a Minimum Level of “AMPLE” Funding
As some Justices noted, the State is currently paying about $7 billion of the cost of schools while the actual cost of our schools is about $12 billion. But even if the Supreme Court required the legislature to fund the entire $12 billion cost of education in today’s schools, some parents could sue again tomorrow claiming that even more than $12 billion was required. So at what point has the Constitutional Mandate to amply fund our public schools been met?
In 1978, our Supreme Court ruled and our legislature later adopted a very important principle: That our schools, at a minimum must give our students a FAIR OPPORTUNITY to learn the skills necessary to compete in the national and global market place. The question is what level of funding would provide for a fair opportunity for our children and also be fair to our tax payers?
Petitioners have asked for an amount which would provide for the education of ALL children – meaning an impossible to achieve graduation rate of 100%. The Attorney General advocated for just the opposite – giving the Legislature complete freedom to determine the appropriate amount – which then could be lowered even more than it is now. Plaintiffs ask for infinite funding while the State asks for no funding requirement at all. Neither side has been even remotely reasonable.
There is however a rather easy and objective way out of this dilemma. The key is in the word compete. What it means is to offer students a fair opportunity to compete is a fair and level playing field with other children in the United States. This in turn could be assured with a minimum of national average school funding and national average class sizes. This is a specific measurable goal which would result in our students having a fair opportunity and a national average chance at success in school and success in life. It would not require being 11th in the nation in school funding. But it also would not permit our children to be subjected to the highest class sizes in the nation due to the fact that our schools were 49th in the nation in school funding.
An Objective Standard for Achieving Uniform Public Schools
The reason that the Levy Lid Act of 1977 set the maximum local levy lid at 10% is because several studies indicated that was the approximate “non-Basic Education” cost of after school activities. This established a principle accepted by our Supreme Court that local variances of 10% would still meet the definition of Uniform and would not lead to a two tier system of a few rich schools and a lot of poor schools like we have today. Therefore, the remedy would be to roll back the State wide Property Tax Levy Lid to 10% which is what it was in 1980 – back to when the funding system met the Uniformity provision in our State Constitution. In addition, the Court must prohibit the grandfathering of levy lids above 10% in order to create a truly uniform system of public schools.
An Objective Standard for a Measuring Fair School Construction Funding
Going back to the 1980’s, the Courts accepted 67% of actual school construction funding as meeting the State Constitutional requirement to build schools. At the time, our State was also near the national average in percent of un-housed students. However, since then, State funding for school construction has plummeted to 15% of actual cost, causing the backlog of school construction projects to skyrocket to more than $10 billion – and doubling the percent of un-housed students. Therefore, two provisions are essential. The first is that the State Legislature should be ordered to make up for years of failing to build schools by building enough schools to restore national average rate of un-housed students – whether a local bond is passed or not. This would require building about 100 to 200 schools for these un-housed students. Once our State has achieved this measurable milestone, then the State should also be order to provide 67% of the actual cost of building all FUTURE schools.
An Objective Standard for Assuring a Constitutional Balanced Budget
The legislature has shown a disturbing tendency to use all kinds of accounting tricks to hide a growing budget deficit. This hidden deficit threatens to severely harm our public schools as it is a ticking time bomb. When it goes off, there will be devastating cuts to schools – even worse than the current and past cuts. Some of the creative accounting practices that should be prohibited by our Supreme Court include:
- Failing to make the June Basic Education Payment – costing schools $130 million.
- Leaving a negative end of biennium balance.
- Raiding the school construction budget to pay for operating costs.
- Raiding the State pension funds to balance the State budget.
- Giving away billions in corporate tax breaks while cutting billions of dollars in school funding.
All of these accounting tricks should be declared unconstitutional.
A Specific Requirement to Place School Funding as a higher Priority than giving billions in tax breaks to wealthy corporations
The following graphs show that school “operational” funding in Washington State, as a percent of income, has fallen dramatically during the past 12 years – from about 5% of income to about 4% of income. At the same time, State taxes on our poor and middle class (including high levy rates) has gone up dramatically during the past 12 years.
It would take at least $3 billion to restore school operation funding to the national average. It would take another $1 billion in State funding to reduce the levy lid to 10% – and other $1 billion to restore School Construction State Matching funds. So the total amount that has been robbed from our children and our tax payers during the past 10 to 20 years has been at least $5 billion.
Where has all this $5 billion gone?
The answer is that most of it has gone into tax breaks for wealthy multinational corporations. Just 12 years ago, our State legislature gave away $22 billion per year in tax breaks (most of which go to billionaires who own wealthy corporations). Since then State tax breaks for the rich have skyrocketed to over $50 billion per year. This more than any other factor has led to the recent plunge in school funding.
Tax breaks for billionaires and major corporations in our State have skyrocketed 250% during the past 10 years (from $22 billion per year in 2000 to $50 billion by 2010): Over 90% of these tax exemptions benefit the richest one percent, with much of this wealth being shipped out of State and even out of the country, creating jobs overseas instead of here in Washington State.
In shifting the tax burden to our middle class, and causing the firing of thousands of public servants, these massive tax exemptions for billionaires do not create jobs. Instead, they cost jobs.
We now spend $7 on corporate tax breaks for every dollar we spend on teachers. If we cut back on corporate tax breaks for the rich by even 10%, we could generate the entire $5 billion robbed from our children and middle class tax payers in the past 12 years – AND be hiring teachers and doctors and health care workers by the thousands instead of firing them by the thousands.
Penalty for Non Compliance
Our Supreme Court has repeatedly ruled in the past that the State Legislature was failing to meet its Paramount Constitutional Duty to fund our public schools. But sadly, even when there was a deadline (such as the 1981 Deadline imposed by the Supreme Court in 1978), the legislature failed to comply because there was no penalty for non-compliance.
The only way to assure that the legislature complies is to ask the Court to impose a harsh penalty for non-compliance. The solution to this problem is to require that the legislature correct this violation of the State Constitution during the next legislative session. To insure this is done, the Court should order the legislature to stay in session until they achieve the specific goal of at least national average school operation, repair and construction funding. Legislatures may not care about our children or our public schools or our State Constitution. But if they knew their summer vacations were not going to happen until this problem was corrected, they would certainly have the problem solved in a matter of months!
Poison Pill: Repealing ALL Tax Exemptions Passed since 1996
Sadly, there is the chance that the legislature would continue to ignore the Supreme Court and adjourn without having restored school construction and operation funding to at least the national average. After all, the solution would require cutting at least $5 billion in corporate tax breaks. Legislators would not want to cut the tax breaks for the very corporations which pay for their re-election campaign.
Thus, there has to be a specific consequence that will take effect automatically if the legislature fails to pass a bill which restore school funding to the national average. As one of the above charts shows, the last time school operating funding in our State was above the national average was 1998 – with school construction funding falling even earlier than that.
Therefore, if national average funding is agreed to been the MINIMUM level of funding required by our Constitution, then it follows that every tax exemption passed since 1996 has been unconstitutional – because every one of these tax exemptions has lowered school funding below the Constitutionally required minimum amount.
The Supreme Court could order the legislature to draw up a simple list of every tax exemption passed since 1996 – and to determine the annual amount of State School Funding Revenue lost every year as a result of every one of these illegal tax exemptions. There were several hundreds of these illegal tax exemptions passed since 1996. But since the Washington State Department of Revenue already keeps track of all of these tax exemptions on a computer data base, it would not take long to draw up this list.
Should the legislature fail to address the problem, the Supreme Court could simply declare ALL of the tax exemptions passed since 1996 as unconstitutional. This would certainly raise more than $5 billion annually. But since these tax exemptions include more than one billion for Microsoft, more than one billion for major banks and another half billion for Boeing, the legislature would be strongly motivated to get the job done – in order to prevent this poison pill solution from taking effect.
- A Specific, Certain and Objectively Measurable Remedy
A common practice of good attorneys is to draft a set of proposed orders and include it at the end of their motion. This way, if the Court agrees with them, then all the Court has to do is sign the proposed Orders. It also makes it easier for the judge to edit the plan rather than drafting a whole new plan from scratch. Most important, proposed Orders make it clear to the Court what the plaintiff is asking for in terms of specific relief. It can be as simple as the following:
Petitioners request the following relief from this Court:
- The declaratory judgments listed below.
- An Order requiring the State to fully and promptly comply with our State Constitution by providing at least national average per pupil funding, at least 50% matching funds for the construction of schools with stable, dependable and regular funding sources and a reduction of the maximum property tax levy lid for ALL SCHOOL DISTRICTS to 10% of State payments to schools – and including a specific deadline for compliance and a specific penalty for non-compliance as noted below.
- An award reimbursing plaintiffs attorney fees and costs to the full extent allowed by law.
- Permission to amend the pleadings to add additional claims or parties to conform to discovered evidence or the proof offered at the time of hearing or trial.
- Such other relief and/or writs as appear to the Court to be just and equitable.
Findings of Fact
- Not all children residing within the State of Washington are receiving the education mandated by Article 9.1, 9.2 and 9.3 of our State Constitution.
- The State does not provide the stable, dependable and regular funds necessary to help communities build, repair and operate urgently needed schools.
- The rate of un-housed students in our State is much greater than the national average.
- Many schools are unsafe for children and do not meet State Health Department standards or county Building Code standards.
- The State’s system and process for providing matching funds for constructing schools does not satisfy the State’s Paramount duty under Article IX of our State Constitution to make ample provision for the education of all children in our State.
Conclusions of Law
- Articles 9.1, 9.2 and 9.3 of our State Constitution impose a judicially enforceable affirmative duty on the Respondent State.
- The State is not currently complying with its Constitutional duty under Articles 9.1, 9.2 and 9.3.
- This Court therefore enters the following declaratory judgment to halt the State’s ongoing violation of its paramount education duty under our State Constitution.
- Our State Constitutional requirement to amply fund education includes providing at least two-thirds of the actual funds needed to construct new schools and repair existing schools.
- The State must fully and promptly comply with Article 9.1, Article 9.2 and Article 9.3 of our State Constitution.
AUTHORITY Articles 9.1 and 9.2 and 9.3 of the Washington State Constitution.
It is hereby Ordered:
1.This petition presents a question of law, namely the interpretation of Articles 9.1, 9.2 and 9.3 of the Washington State Constitution, which this court may decide based upon the briefs submitted.
- The court finds that Article 9.1 of our State Constitution places a burden on the State legislature to “amply fund public schools from reliable and dependable sources. Amply funding for school operation is defined to mean “at least national average funding resulting in at least national average class sizes” to insure that our State’s students have a fair opportunity to succeed in school and succeed in life.
3.The court finds that Article 9.1, 9.2 and 9.3 of our State Constitution places a burden on the State legislature to amply fund not only the operation of public schools, but also to meet the primary burden to amply fund the construction and repair of public schools. The State is therefore required to fund at least 67% of the actual cost of constructing all future new schools in the State of Washington. In addition, the failure of the State to provide ample school repair and construction funding in the past 25 years has led to a severe backlog whereby the rate of un-housed students in our State is twice the national average. The legislature is therefore order to provide 100% of the capital funding for school construction and repair, regardless of the ability of a school district to pass a local school construction bond, until such point as the rate of un-housed students in our State is at or below the national average and until such point as every school in our State meets State Health Department and Building Code standards – including but not limited to have a safe source of drinking water for every child.
4.The court finds that Article 9.2 of our State Constitution places a burden on the State legislature to provide a UNIFORM system of public schools – which this court operationally defines as a system of schools wherein, adjusted for the cost of living, there is no more than a 10% variation in per pupil funding and a maximum of 10% property tax levy lid for ALL SCHOOL DISTRICTS to be used solely for enrichment funding of local schools.
5.The court finds that Article 9.1, 9.2 and 9.3 places a burden on the State legislature to fund school operation, construction and repair to at least the national average before granting any new tax exemptions. Should the legislature fail to address the above ongoing violations of our State Constitution by the end of the next legislative session, this court orders that ALL TAX EXEMPTIONS PASSED BY THE LEGISLATURE ARE UNCONSTITUTIONAL AND ARE THEREFORE NULL AND VOID.
Deadline for Compliance
The legislature shall address and fully remedy all of the above violations of our State Constitution by the end of the next legislative session.
Penalty for Non-Compliance
It is further Ordered: That the legislature shall remain in session and SHALL NOT ADJOURN until the above conditions have been met.
The Supreme Court may still rule in favor of the plaintiffs. This is because there is substantial evidence to support the findings of the trial court. But even if they do rule in favor of the plaintiffs, it could be a hallow victory which does little to actually help our children because the plaintiffs failed to really do their homework. They failed to state which sections of which laws had unconstitutionally led to the decline in school funding and they failed to specify clear remedies which the court could order which would actually solve the problem and end the dispute.
What would our State’s Educational System and Economy look like should our Supreme Court order the legislature to fully comply with our State Constitution in the above manner?
The above changes would have at least three positive effects on our schools and on our economy:
- The building and repair of 100 to 200 schools would create 10,000 to 20,000 school construction and repair jobs.
- The restoration of national average school funding and national average class sizes would restore over 10,000 to 20,000 teaching jobs which have been lost during the past 12 years of school funding cuts.
- As each public sector job supports at least 2 private sector jobs, there would also be 20,000 to 40,000 private sector jobs created.
- The biggest effect would be the reduction of the levy lid from 28% to 10%. This would reduce property taxes on middle class homeowners by about $1,000 per year – giving them more money to spend. This would greatly stimulate the economy creating 100,000 jobs in our State.
Thus, the total number of jobs created in our State could exceed 200,000 – effectively ending the Great Recession and restoring employment.
Other benefits would be that up to 200,000 homes would be saved from foreclosure – thus stabilizing home prices. Crime rates would be lowered and graduation rates would be increased. The economic rebound would also lead to greater sales – further increasing State revenue – which could then be invested in restoring State Support for High Education and Health Care for all of our State’s citizens.
In short, following the State Constitution is not only the right thing to do for our children, it is the right thing to do for our economy.
One thing is certain. If the legislature continues to ignore their Constitutional Mandate to fully fund our public schools, parents and concerned citizens will eventually rise up and demand that our tax dollars go towards our children’s schools – not for tax breaks for wealthy corporations. For more on this subject, visit our website: realwashingtonstatebudget.info.
Email me if you have any questions – or if you would like to join us and help restore school funding in our State “to at least the national average without raising taxes on our poor or middle class”.
David Spring M. Ed.
Director, Fair School Funding Coalition.