Last month, the Washington Supreme Court issued its decision in McCleary v. State, --- P.3d ----, 2012 WL 19676, Case No. 84362-7 (Wash. 2012), the culmination of three decades of litigation, legislation, and more litigation over the state’s school funding system. The Court struck down the state financing system, but stepped back from ordering the state legislature to take any specific legislative action to fix the system. The Court exercised such restraint for two reasons. First, like other courts in similar situations, the Washington Court recognized the troubling separation of powers implications of a direct, injunctive remedial order against the legislature to enact legislation. Second, the Court considered 2009 legislation that had been passed since the suit began and held that, if fully funded, the system laid out by this legislation would pass constitutional muster. The Court retained jurisdiction over the case, apparently to see that the legislation in question would be fully funded in the coming years.
I have said before in my scholarship that Washington’s Supreme Court is one of the more interesting in the country in the area of school finance because, rather than issuing under-theorized accounts of rights to education as other state courts have, Washington’s Court, in its initial school finance decision (Seattle School District No. 1 v. State, 90 Wash. 2d 476, 585 P.2d 71 (Wash. 1978)), carefully derived from the education duty provision in its state constitution a correlative individual right to an education held by each Washington resident child. In McCleary, the Court reaffirmed this holding from Seattle and used it as the justification for stringent judicial review of the legislature’s past actions, particularly its actions in cutting expenditures on certain budgetary items and forcing these expenditures to be funded through less-reliable local sources. A few general principles emerge from the decision:
First, the Court developed a way to review budgetary cuts for their rationality that is, I think, either new or newly explicit among school finance cases. The Court explained that, where the legislature cuts part of the education budget, it may not justify such a cut based on lack of funds availability alone (clearly a garden-variety rational basis that would justify cuts to any other budget item). Rather, the legislature must justify all cuts to the education budget with education-related reasons, in effect adopting some of Helen Hershkoff’s earlier proposed metrics for constitutional review of affirmative rights. The upshot of this innovation is that something more than a rational basis is required. The required standard seems to be more of a “rational direction” test—Is the cut or expenditure decision rationally directed at the constitutionally prescribed goal (“ample support” for education, in Washington’s case)?
Second, the Court reversed the lower court’s order that the legislature commission a study of the true cost of providing an adequate education, a familiar, almost pro forma remedy that every school finance plaintiff group seeks these days. In my view, this was a very sound reversal. The legislature, in the preceding years, had commissioned several such studies, each at a cost of over 1 million dollars. The problem was not the state’s failure to determine what a “basic education” costs, but the failure to fund it fully once determined.
Third, the Court's decision revealed that evidence of inequality is far more important to judges in adequacy cases than evidence of the overall quality of the system, especially in the form of test scores and other outputs (echoing portions of recent work by James Ryan). Although the Court defined the basic content of a sufficient education by referencing the state content standards, the chief problem the Court saw with the legislature's existing program was that localities were required (with varying levels of effort based on local property wealth) to fund large portions of the achievement of the stated standards. That's an equity analysis, not an adequacy analysis.
These are what I view to be the positive developments in the case, but there were also a couple of negative—or at least disappointing—trends that generally exist in the school finance cases that were adopted and continued in this case. First, the Court engaged and adopted its prior holding that the education duty set forth in the state constitution is a duty that falls equally on all branches of state government. Courts around the country have seized on non-specific language in their education articles to justify judicial review of legislative policy priority weighing by holding similarly. Simply put, if the duty rests on all three branches, then no branch deserves any deference, especially not total deference. But this makes absolutely no sense in practice. A duty, to be meaningful, must be enforceable. Given that principle, what if some group of residents is unsatisfied with the Court’s resolution of this matter? Since the duty rests equally on the Court’s shoulders, may that group now sue the Court for violating the duty? Will the Court be the ultimate judge in this case? I think it is preferable for courts to justify judicial reveiw without confusing the governmental actor that bears the burden of an affirmative constitutional duty.
Second, although the Washington Court did an admirable job in Seattle of using the scholarship of Wesley Newcomb Hohfeld to derive a defensible conception of an individual positive right to education from the affirmative duty set forth in the state constitution, it approached the McCreary case without any regard to individual harm whatsoever. In short, individual rights were meaningless—other than rhetorically—in the decision process. I continue to believe that recognizing individual rights, but failing to consider individual harms and individual remedies, does violence to the idea of rights in general.
There’s lots more to say about this important decision, but these are my first impressions. I welcome comments, corrections, addenda, etc.