October 25, 2017

State Assistant Attorney General asks Supreme Court to End McCleary Case

Prepared by Marie Sullivan, WSPTA Legislative Consultant,

In oral arguments before the Supreme Court on October 24, 2017, state Assistant Attorney General Alan Copsey asked the Court to find that the state is in compliance with amply funding education and to close the case. In the event the Court was concerned about the two-biennium phase-in for funding, Copsey said that the Court could retain jurisdiction over the case, but only to ensure that the Legislature follows through with the 2019-21 biennial funding as described in EHB 2242.

For his part, plaintiff attorney Thomas Ahearne argued that the state had not demonstrated ample funding and the Court should order the State to use the 2018 session and the supplemental budget to boost funding to meet the 10 components of basic education by the September 1, 2018 deadline the state had agreed to and the Court had ordered.

Neither attorney could present much of his case without interruption of the justices. Both were queried heavily about the state’s approach to teacher salaries and questioned on whether the goals for the amount of funding kept shifting. The state argued that the $8.3 billion over the next four years more than met the state’s Constitutional obligation, while Ahearne argued that actual costs of basic education and ample funding for
each child still hadn’t been met.

It is hard to predict which way the Court will decide. Here’s a quick review of some of the questions:

Funding shortfall

Both attorneys were asked what the shortfall was in meeting the September 1, 2018 deadline for full implementation. The state said it was about $1 billion. When asked if that could be made up in the supplemental budget year of the 2018 session, Copsey said it would be a big lift and gave the example of SPI
Reykdal’s budget request for additional special education funding which was closer to $100 million. He said the supplemental budget is usually for small tweaks and unexpected needs, and that trying to get all the funding in place by September 1st would be difficult.
Ahearne said that the funding formulas were being funded, but that didn’t necessarily add up to actual costs. He declined to set an actual number, instead using examples of where formulas, like transportation, might be funded, but the funding didn’t represent the actual costs of student transportation. He also referenced the
13.5 percent funding cap on special education funding, and the inadequacy districts with higher student populations of students with special needs faced under the cap.

Teacher salaries

Under questioning, both attorneys said that new compensation component should amount to an additional $2 billion, but Ahearne argued that just meeting status quo (i.e., the shift from local dollars to state dollars) didn’t meet the test of recruiting and attracting teachers, particularly with the current teacher shortage.

In response to a question about regionalization, Copsey said this was a policy choice by the Legislature, and the idea behind regionalization was to put every district on equal footing. Since the cost of living was higher in

Seattle, if all teachers were paid a Seattle rate they would be overpaid in some areas of the state compared to other professions in that same region.

Copsey argued that the average teacher salary of $63,000 was based on consultant reports and determining market rate. He said this figure should be enough to pay every teacher that average amount, but acknowledged that some teachers would be paid more, some less, based on the collective bargaining agreement set by the district. Ahearne said that the Legislature never adopted a factual finding on teacher salaries, that the “market rate” average was status quo of what was being paid now through a combination of funds, and that the modest increase wasn’t enough to attract or retain the teachers that are needed in today’s schools.

School construction

Ahearne referenced the need for capital budget funding several times related to meeting the policy objectives of all-day kindergarten and smaller K-3 class sizes. He pointed out that districts can’t meet those basic education components, set by the state, without the additional classrooms. Copsey, on the other hand, argued that the lack of capital funding didn’t impact anything in basic education. He stressed that Article IX, Section 1 of the Constitution didn’t apply to the capital side of the equation, and that the Constitution put an emphasis on local responsibility for school construction under Section 3.

In response to a question about full implementation of class size reductions, Copsey said that K-3 class size was fully implemented now, and it would be difficult to answer from a capital side since they didn’t know how many classrooms would be required. He said he didn’t know of any situation where the ratio wasn’t being met due to a lack of classrooms. Copsey also said the $1 billion in school construction assistance and the re- appropriation of the 2015-17 K-3 grants would be more than enough capital funding.

Special education funding

Under questioning about the 13.5 percent cap on special education, and why districts aren’t reimbursed fully, Copsey said he wasn’t sure they weren’t getting full reimbursement. He explained that special education students get the general education allocation, plus an additional 93.9% allocation, and additional funding depending on student qualifications. He also referenced how the safety net funded high-need students. So, he argued, when put together, the district may have a special education student population higher than 13.5
percent, but some would require less funding, some more, so he couldn’t say special education was

Next steps

The Supreme Court will take the briefs filed by the state, the plaintiffs, and the amicus parties, along with the oral arguments under advisement in developing its decision. Based on some of the questioning, the Court could order the State to take steps to comply fully with the September 1, 2018 deadline, with action required in the supplemental budget. What wasn’t clear, based on the questions, was whether the Court agreed that the funding provided by the State met the ample bar under the Constitution, or whether it would agree with the plaintiffs that while progress was made, it still wasn’t at an ample level.

Surprisingly, there was little discussion about the levy swap – only a few references to the new state property tax, and whether that met the regular and dependable test – and nothing about the Legislature’s levy reform measures. These issues, along with the compensation decisions, will continue to be the subject of school district concerns.

Category: Advocacy , Education , Legislative

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