Unless King County Judge John Erlick holds Gov. Chris Gregoire, Speaker of the House Frank Chopp, and Senate Majority Leader Lisa Brown in contempt and orders them jailed, don’t expect his ruling last week that the state is inadequately funding education to have much of an impact in Olympia — certainly not this year.
In fact, don’t be surprised if majority Democrats stick a legislative thumb in the judge’s eye. Hours after the ruling, Sen. Brown admitted to me on TVW’s “Inside Olympia” that, “It’s quite likely that education will be cut [further] this year,” due to the state’s current $2.6 billion shortfall.
According to the Washington Education Association, the state’s teachers’ union, the 2009-11 budget already cuts approximately $1.5 billion in K-12 funding. Gregoire’s December all-cuts supplemental budget called for another $400 million in cuts to education, although she’s proposing to “buy back” about half of those cuts with new revenue.
With comments like that floating around Olympia, the plaintiffs in the school-funding lawsuit may not be smiling for long. The reality is, by the time the splash from Erlick’s ruling hit the sandstone Capitol it was a mere ripple. No one was terribly surprised and, except for the obligatory official reaction statements from the governor and key lawmakers, legislative business went on as usual. In other words, time did not stand still even for a moment.
Ironically, that very same day another court ruling was compelling the state to pay up. The recipient? An out-of-state corporation. During my interview with Sen. Brown, she said she had just found out that the state had exhausted its appeal options stemming from a Washington Supreme Court ruling last fall in a corporate tax case. As a result, she said, Washington must now write a $60 million B&O tax refund check to an Illinois company called Dot Foods. To put that in education terms, $60 million would pay for two years of all-day kindergarten.
Even if Attorney General Rob McKenna decides to appeal Judge Erlick’s decision on education funding and the case makes it to the state’s high court and is upheld, public education won’t automatically get a hefty check from the state. That may be how it works when businesses like Dot Foods sue the state, but not when parents bring suit over the education the state is providing their children.
In part this is because judges are reluctant to tell the legislature how to do its job, deferring to the doctrine of the separation of powers. In his ruling, Judge Erlick was explicit that the remedy is very much up to the legislature. He is demanding an accounting of how much it will cost to provide a basic education. But beyond that Erlick says it’s up to lawmakers, not judges, to figure out how to solve the problem.
So what’s likely to happen? It seems the best education advocates can hope for is the ruling fosters a sense of urgency in Olympia — once the economy recovers and revenues start flowing again.
History is a helpful guide. Witness what happened more than 30 years ago. That’s the last time a judge ruled Washington was failing to uphold its constitutional duty to amply fund public schools. Following the Judge Doran (pronounced Dorn) ruling in 1977, the Washington legislature did feel compelled to act. That same year it passed legislation defining what constitutes a basic education and put into place new funding formulas for school districts. Long story short, those formulas were politically engineered so that some districts made out a lot better than others (a legacy that helped spawn this most recent school-funding lawsuit).
According to a timeline by the Network for Excellence in Washington Schools, the following year, in 1978, the Supreme Court affirmed the Doran decision. In response, the legislature upped its contribution to local school districts to 84 percent of the total cost of educating a student. Lo these many years later, the chief complaint is still that the state is shortchanging districts and forcing them to use local levy dollars to pay for basic expenses like school bus transportation. The court fix didn't stay fixed.
Another percentage barometer that also merits attention these days is the percentage of the overall state budget that goes to public education. According to the WEA, over the past 25 years it’s dropped from 50 percent to 40 percent as healthcare costs gobble up more and more tax dollars. There are many education leaders in the legislature, both Democrats and Republicans, who think one obvious solution is to reverse that trend and get education spending over that 50 percent mark again. In fact Republicans have a “fund education first” mantra that Democrats dismiss as impractical.
In one respect, Democrats think they’re already one-step ahead of Judge Erlick. That’s because last year they passed a massive education reform bill that updates Washington’s definition of basic education for the 21st century and sets a ten-year timeline for funding it. In reacting to Erlick’s decision, Sen. Brown told me: “I think we saw this coming. That’s why we did pass the bill last year to revamp the school funding formula.”
What remains to be figured out is where the money will come from to fund the new law. Brown would like to see a new dedicated source of revenue for schools — i.e. an income tax on wealthy Washingtonians. But that would require voter approval, a big hurdle. In 2004, Washington voters overwhelmingly rejected a one-cent sales tax increase for schools.
But any solution is going to have to wait until lawmakers get through the current budget crisis. “Our task right now is very large,” says Brown. “It’s to produce a balanced budget in the next few weeks and that’s going to require cutting more than we want and probably raising revenue more than many people want. Putting together that balanced budget is the main focus of my attention.”
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