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First Reactions to the McCleary Order

Release Date: 

January 14, 2014

I had a chance to read the McCleary ruling in full last week.  It has some direct implications for the State Board of Education’s work.  Beyond that, it has a distinctly different urgency, tone, and level of detail than prior orders.  It also introduces new issues.  I wanted to share a few thoughts with you about it.

My first impression is that it’s clearly a positive development for the children of Washington state.  The urgency of the language is palpable (key phrase: “the pace of progress must quicken.”)  And while the Court indicates “it has no wish” to hold the Legislature in contempt of court, one wonders whether the Legislature will read that as “we’re about to hold you in contempt of court if a substantial progress isn’t made in short order.”  The laser-like focus is on the promises inherent in ESHB 2261 and SHB 2776, and as we know, these contain funding commitments as well as requirements to strengthen the program of basic education itself, including implement a meaningful 24-credit high school diploma framework.

In my view, this order completely changes the scope of the 2014 session.  The Legislature now has a date of April 30, 2014, to produce a real plan.  Since the Court was clear that prior plans haven’t cut it, the Legislature is truly under the gun to create some political consensus around serious commitments to education funding, or, risk judicial intervention of some variety.


Of course, in the creation of a plan, the heavy lifting won’t be analytical, but political.  What needs to happen is relatively clear from underlying law (2261/2776) but also the Joint Task Force on Education Funding (JTFEF) Report and the Quality Education Council reports.  The Court lays out these cost estimates in unusual detail, even (somewhat oddly) pulling from the QEC’s technical working group report on compensation.  The key issue is what role revenue will play in this ‘plan,’ and whether the Majority Coalition Caucus and the House Democrats are able to achieve the necessary political consensus around the basic issue of revenue sustainability.   As we’ve seen before, it’s not necessarily difficult to create an ambitious expenditure plan that says, in effect, we’ll fund billions in education first, and find the savings and resources elsewhere.  The double jeopardy question is: where is “elsewhere?”  And more specifically, what citizens live in ‘elsewhere,’ get their services from ‘elsewhere’, and perhaps most importantly, vote in ‘elsewhere’?

In terms of specific observations about the decision, a few things jump out.

First, the order adds much greater prominence to the issue of educator salaries, indicating that “nothing could be more basic than adequate pay.”  In so doing, they are giving educator COLAs a much greater prominence in the basic education discussions.  Lawmakers will probably need to shift their thinking now, realizing that while annual educator COLAs (I-732) may not be constitutionally protected, the general adequacy of educator pay is.  Maybe a short-hand read of that might be: you might get away with skipping an occasional COLA (and making it up later), but not three or four in a row.


Second, the Court introduces the concept of facilities costs in a new way.  Historically, the Legislature has viewed capital costs as outside the bounds of basic education. This order seems to test this assumption.  The Court observes that although the Legislature made some investment in lower class size and full day kindergarten, it did not address “the capital investment needed to implement.”  That sentence alone will send shockwaves through the capital because it introduces a new, large, and relatively complex policy arena to the Legislature’s McCleary work.

Including capital has implications not just for how much the Legislature spends on school construction, but also the methodology by which the money gets allocated.  The current methodology is primarily through a local matching formula.  A local community gets a bond approved, and the state will match up to a certain percent, at a certain rate.  But remember, the state’s support of basic education is not to be premised on a local community’s tax effort. So how will the state meet its apparent basic education capital obligation (if that is what the Court truly meant to establish) under the existing formula without requiring local effort to trigger something that is supposed to be guaranteed?  This one, I’m sure, caught the Legislature by surprise, and I would not be surprised if there is public push-back on this aspect of the order.


Another thing that sticks out about this order is the level of financial detail, and precision with which the Court has combed through various task force reports to arrive at cost estimates for the state’s obligation.   This conveys to me a willingness to engage in implementation details, and a level of seriousness about holding the Legislature accountable to something tangible and verifiable.  What’s noteworthy is the Court reliance on raw dollar figures to measure the progress.   For example, it notes that the state “achieves an 11.4% increase in basic education funding over 11-13” and later notes that that constitutes a mere “6.7% increase over the constitutionally inadequate funding.”  The report makes clear: the state is nowhere near on target for full implementation by 2017-18, but it makes its case by emphasizing raw dollars spent, rather than levels of service.  For example, money spent on class size, rather than the class sizes themselves.

And when discussing pupil transportation costs in this context, I think the Court starts to lose its footing a little.  The Court seems fixated on a cost estimate for the pupil transportation formula which appears to have been generated around 2009, or possibly earlier.  It then accuses the Legislature of short-changing its own promise in 2013.  I’m not sure if they short-changed or didn’t, but what seems most important is whether the Legislature is actually implementing the formula it promised (the service level), not how much that formula ultimately costs (the raw dollar cost).  If the Legislature overestimated the cost of its program – and I suppose that remains to be seen — that shouldn’t be a violation of basic education.  As someone who used to do that sort of
analytical work, I wouldn’t be surprised if the Legislature was truly uncertain
about the ultimate effects of the new transportation formula — one that, last
time I checked, was a fairly complex calculation involving regression
analysis.  This is probably not a major consideration in the overall
order, but I wouldn’t be surprised if the Legislature publicly seized upon this
example as something the Court doesn’t really understand.

Overall, what a great development for schools and districts struggling to get kids to standard with limited resources.  This order is a very powerful and urgent statement about the Legislature’s paramount duty to K-12 education.  The Court has clearly upped the ante, and seems to be foreshadowing a willingness to do more than just write empty orders.  The Legislature will be hard pressed to do nothing this Legislative session, and even harder pressed to not make significant, structural changes to its system of support for K-12 education in the next biennial budget.  If they stall, things will get very interesting.

~ Ben Rarick,
Executive Director

Media Contact: 

Alissa Muller, SBE Communications Manager, (360) 725-6501