CR-ESD 113 Superintendents’ Meeting Tumwater, May 28, 2014

 History of Education Funding & Litigation  McCleary Case & Decision(s)  Implementation of McCleary  What about the future? 2

 “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.” Article IX, Section 1 Washington State Constitution 3

 1976: Seattle School District files suit against state  1977: Superior Court Judge Robert Doran finds for the school districts  1977: Legislature adopts Basic Education Act of 1977  1978: State Supreme Court affirms Doran decision  1980: State increases K-12 funding share 4

 1983: Second Doran decision expands “basic education” definition – special education, remediation assistance and transportation  : Doran issues special ed decision  1993: Legislature adopts Education Reform Act of 1993  1995: Legislature changes special ed formula 5

 2005: The Network for Excellence in Washington Schools (NEWS) is formed ◦ Comprised of 70+ organizations and school districts committed to improving the quality of public education in Washington  2007: McCleary v. State of Washington filed in King County Superior Court  NEWS filed a lawsuit, asking the court to order the State of Washington to live up to its paramount constitutional duty to make ample provision for the education of all Washington children 6

7 Dollars in Billions

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9 Source: OSPI 5/10

10 Local Levies as a Percent of All School Districts’ Revenue Source: Joint Task Force on Education Funding, 11/12

 2009: McCleary v. State of Washington heard in King County Superior Court  2010: Judge John Erlick rules for the plaintiffs, declaring the State’s failure to fully fund public schools is unconstitutional: ◦ “ This court is left with no doubt that under the State’s current financing system, the state is failing in its constitutional duty. “ 11

“State funding is not ample, it is not stable, and it is not dependable…local school districts continue to rely on local levies and other non-state resources to supplement state funding for a basic education.” “Paramount means preeminent, supreme, and more important than others. Funding K-12 education…is the state’s first and highest priority before any other state programs or operations.” - Judge John Erlick 12

 Judge Erlick directed the Legislature to: ◦ “determine the cost of amply providing for basic education and a basic program of education for all children” ◦ “provide stable and dependable funding for such costs of basic education” 13

 2009: Adopted ESHB 2261 ◦ Redefined basic education and restructured state’s education finance system ◦ Stated Legislature’s intent that a newly redefined Program of Basic Education and the necessary funding to support it be fully implemented by 2018 ◦ Created the Quality Education Council to monitor implementation ◦ Established a series of work groups to provide implementation recommendations 14

 2010: Adopted SHB 2776 ◦ Began implementation of new Prototypical School Funding Model, as created in ESHB 2261 ◦ Called for funding enhancements for: K-3 Class Size Reduction; All-Day Kindergarten; Maintenance, Supplies & Operating Costs (MSOC); and Pupil Transportation ◦ Established a schedule for the enhanced funding 15

 2011: Supreme Court hears State’s appeal in McCleary case  2012 (January): Supreme Court unanimously affirms trial court’s ruling. Court retains jurisdiction in case to ensure the State complies with its paramount duty 16

 Supreme Court rules: ◦ The State “has consistently failed” to provide the ample funding required by the Constitution. ◦ “Reliance on levy funding to finance basic education was unconstitutional 30 years ago in Seattle School District, and it is unconstitutional now.”  Supreme Court Orders State to: ◦ “demonstrate steady progress” under ESHB 2261; and ◦ “show real and measurable progress” towards full Article IX, Section 1 compliance by

 2012 (July): Supreme Court issues Final Order on Retention of Jurisdiction, requiring the State to: ◦ file periodic reports summarizing actions to implement ESHB 2261 and achieve compliance with the Constitution; and ◦ show “real and measurable progress” toward achieving full constitutional compliance by 2018 ◦ 18

 2012 (December): Supreme Court affirms that “Year 2018 remains a firm deadline” for constitutional compliance. Court Orders the State’s 2013 compliance report to: ◦ set out the State’s plan in sufficient detail to allow progress to be measured according to periodic benchmarks between now and 2018; ◦ indicate a phase-in schedule for achieving its mandate; and ◦ demonstrate that its budget meets its plan 19

McCleary v. State Implementing McCleary

21 ESHB 2261 – Program Changes Required

22 SHB 2776 – Funding Changes Required

23 SHB 2776 Resource Phase-in School Year Full-Day Kindergarten Must be fully funded statewide by Phase-in based on FRPL 219 Schools More funding can begin More funding must begin Continues to ramp up Fully Funded 2 K-3 Class Size Reduction Must be fully funded statewide by Phase-in based on FRPL $0 More funding can begin More funding must begin Continues to ramp up Fully Funded 3 Materials, Supplies, Operation Costs (MSOC) Must be fully funded by $ per student basis More funding can begin More funding must begin Continues to ramp up Funded at new level 4 Basic Transportation Must be fully funded by % of formula funded basis More funding can begin More funding must begin Continues to ramp up Fully Funded Source: OSPI, 5/10

Joint Task Force on Education Funding must :  Make recommendations for how the Legislature can meet the requirements of ESHB 2261 and SHB 2776  Develop a proposal for a reliable and dependable funding mechanism to support basic education programs—multiple options may be recommended, but must recommend one preferred alternative  Consider QEC recommendations (2012) for the Transitional Bilingual Instructional Program  Report recommendations by December 31, Education Funding Task Force

Subjects the Task Force considered:  Phase-in schedule for funding program enhancements : ◦ Maintenance, Supplies & Operating Costs (MSOC) ◦ Pupil transportation ◦ K-3 class-size reduction ◦ Full-day kindergarten phase in  Recommendation(s) on phasing in other enhancements: ◦ 24 credits for high-school graduation ◦ 1,080 hours of instruction for grades 7-12  Recommendation(s) on changes to TBIP  Recommendation(s) on paying for the new costs 25 Education Funding Task Force

26 Four SenatorsFour RepresentativesThree Gov appointees Democratic Caucus Jeff Vincent (Chair) Sen. Lisa BrownRep. Marcie Maxwell Sen. David FrocktRep. Pat SullivanSusan Enfield (Vice Chair) Republican Caucus Mary Lindquist Sen. Joe FainRep. Gary Alexander Sen. Steve LitzowRep. Susan Fagan Alternates Sen. Christine Rolfes (D)Rep. Cathy Dahlquist (R) Rep. Ross Hunter (D) Rep. Kristine Lytton Education Funding Task Force

27 Education Funding Task Force Adopted Spending Plan Source: Joint Task Force on Education Funding, Final Report, 12/12

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McCleary v. State Is the State making “steady progress” toward full compliance with Article IX, Section 1 of the Constitution?

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31 Initial McCleary Investment Operating Budget Initial McCleary Basic Education Investment Operating Budget

32 Source: Network for Excellence in Washington Schools, 11/12

33 Real and steady progress towards full funding -- State Testimony vs. Actual Funding— (Per Pupil State Funding) Source: Network for Excellence in Washington Schools response to 2013 Post-Budget Filing, 1/14

McCleary v. State The Supreme Court retained jurisdiction in the case, requiring annual compliance reports

35  The operating budget contains “$982.0 million in enhancements to basic education allocation formulas. Funding is provided to address…full-day kindergarten; early elementary class size reduction; pupil transportation; and materials, supplies, and operating costs (MSOC).” Also, funding is provided for “the enhancement to instructional hours for grades 7 through 12…”. 35 State’s 2 nd Compliance Report

36  In addition, the Legislature funded: “an increase in the Learning Assistance (LAP) allocation; a new program providing state- funded supplemental instruction following a student's exit from the Transitional Bilingual Instructional Program (TBIP); and new funding formula allocations for parent involvement coordinators and middle school and high school guidance counselors.” 36 State’s 2 nd Compliance Report

37  “The Court should find that the State is making progress toward implementing the reforms initiated in ESHB 2261 and achieving full compliance with Article IX, Section 1 by 2018.” 37 State’s Conclusion

38  Defendant's $982 million “increase" claim falls short of steady progress to full Article IX, §1 compliance by 2018  Defendant's School Salary “restoration" claim falls short of a detailed plan or steady progress to full market rate funding by 2018  Defendant's Transportation “full funding" claim stops short of steady progress to full Article IX, §1 compliance by NEWS Response

39  Defendant's MSOC movement falls short of steady progress to full Article IX, §1 compliance by 2018  Defendant's Full-Day Kindergarten claim falls short of steady progress to full Article IX, §1 compliance by 2018  Defendant's Class Size Reduction claim falls short of steady progress to full Article IX, §1 compliance by NEWS Response

40 “Plaintiffs humbly request that - at a minimum - this Court stop the defendant State from digging its unconstitutional underfunding hole even deeper with any unfunded mandates and issue a clear, firm, unequivocal warning to the defendant State that leaves recalcitrant elected officials no doubt that the State's continued failure to comply with this Court's Orders will result in a holding of contempt, sanctions, or other appropriate judicial enforcement which, frankly, makes compliance their far preferable option.” 40 NEWS Conclusion

McCleary v. State Supreme Court issues new Orders on January 9, 2014

42  The Legislature took “meaningful steps in the 2013 legislative session to address the constitutional imperative of amply providing for basic education.”  The funding provided, however, represents “only a 6.7% increase over the current constitutionally inadequate level of funding” and the state “cannot realistically claim to have made significant progress when its own analysis shows that it is not on target to implement ESHB 2261 and SHB 2776 by the 2017–18 school year.” 42 January Supreme Court Order

43  The Legislature failed to comply with the Court’s December 2012 Order and the new Order directs the state to “submit, by April 30, 2014, a complete plan for fully implementing its program of basic education for each school year between now and the 2017–18 school year.” The plan must also include “a phase-in schedule for fully funding each of the components of basic education.”  The 2014 session presents “an opportunity to take a significant step forward.” 43 January Supreme Court Order

44  “The need for immediate action could not be more apparent. Conversely, failing to act would send a strong message about the state’s good faith commitment toward fulfilling its constitutional promise.”  The Legislature must “demonstrate, through immediate, concrete action, that it is making real and measurable progress, not simply promises.” 44 January Supreme Court Order

 The 2014 Supplemental Budget “invested an additional $58 million in general education K-12 MSOC,” but “made no further investments in either kindergarten through third grade class size reduction or expansion of all-day kindergarten.”  The Legislature did not adopt a plan “to implement the program of basic education as directed by the Court” – however, “continued discussion” was a “key legislative activity.” 45

 Various bills were introduced that would have “addressed in full or in part the ‘plan’ that the Court requested....Although none of these bills passed the Legislature, they are meaningful because they show significant work is occurring.”  The Legislature recognizes “the pace of implementation must increase.” The upcoming budget “must address how targets will be met.” 46

 The Article IX Litigation Committee “respectfully requests that the Court give deep consideration to its response to the actions taken in 2014, that such response not be counterproductive, and that it recognize that 2015 is the next and most critical year for the Legislature to reach the grand agreement needed to meet the state’s Article IX duty by the statutorily scheduled full implementation date of 2018.” 47

 : The Court’s January 2014 Order ordered the State’s April 30 filing do two things: ◦ Demonstrate the 2014 session took “immediate, concrete action” to make “real and measurable progress” towards fully funding the State’s K‑12 schools by the 2017‑2018 school year, and ◦ submit a complete full‑funding plan for each school year between now and the 2017‑18 school year.  “That was an Order. Not a suggestion.” 48

 The Legislature did what it had been ordered not to do: “It offered promises about trying to submit a plan and take significant action next year—along with excuses for why the State’s ongoing violation of kids’ constitutional rights and court orders should be excused this year.”  The Court “should not condone the State’s violation of court orders.” The Court is requested to “take immediate, concrete action to compel compliance” with the Court’s orders. 49

 At the very least, the Court should: ◦ Hold the Legislature in contempt of court; ◦ Prohibit the State from adding more unfunded or underfunded mandates on its schools; and ◦ Impose even more serious sanctions on the Legislature if they do not comply with the Court’s orders by December 31,

 May 29: State’s reply to plaintiff’s response due to Court  June 5: Supreme Court to review materials  Date TBD: Court to issue response/Order 51

52  The Supreme Court’s McCleary decision, along with the state’s compliance reports, NEWS responses and the Court’s Orders are available on the Washington Courts website: : 52 McCleary Documentation

McCleary v. State What Does the Future Hold?

& Budget Outlook (Dollars in Millions) Source: Economic & Revenue Forecast Council, 4/14

55 Source: Washington State Budget & Policy Center, 3/14

56 Real Per Capita General Fund-State Revenues (2009 Dollars) Source: OFM, 12/13

Source: Washington State Budget & Policy Center, 2/14

58 More Than $5 Billion Needed Over Next 2 Biennia to Meet Statutory K-12 Requirements Source: OFM, 1/14

59 Additional Revenue Necessary to Sustain Investments in Education and Other Priorities

Daniel P. Steele Assistant Executive Director, Government Relations 825 Fifth Avenue SE Olympia, WA CR-ESD 113 Superintendents’ Meeting