School Finance Litigation: With defeats like these, who needs victories?



By 01/08/2012

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Last Thursday, Washington’s Supreme Court ruled that the state legislature needs to spend more on education. At first glance, McCleary v. Washington looks like significant victory for the plaintiffs—the plaintiffs’ attorney called it “about the best decision I could possibly imagine”—but a close reading of the ruling shows that looks can be deceiving.  It also makes one wonder if the entire school finance litigation industry hasn’t descended into farce.

Initially filed in 2007, the case raised the now boilerplate claims that Washington state insufficiently funds education.  The trial court judge sided with the plaintiffs and instructed the state to “proceed with real and measurable progress.” But the judge left it to the state to establish both the cost of an adequate education and how to fund it.  The state appealed directly to Washington’s Supreme Court, setting the stage for last week’s decision.

The Supreme Court agreed with the trial court that the state underfunds education, but then said the trial court went too far in trying to dictate “the precise means by which the state must discharge its duty.”  In other words, the Supreme Court was not even going to ask the state to meet the trial court’s very minimal command to do another cost study.  The Court noted that “finding the appropriate remedy” in education clause cases “has always proved elusive.”  The Court decided that, instead of ordering a specific remedy, it would just retain jurisdiction over the case to monitor the implementation of reforms that the legislature had already adopted on its own.

The takeaway is that the Court has said that it will maybe think about possibly doing something at some point in the future, but it can’t say what.  Implicitly the Court was just recognizing the reality that it lacks the capacity to determine what constitutes an appropriate system of school finance, the power to generate billions of dollars of new revenue, and the legitimacy to dictate how the legislature is to do its job.  The Court just couldn’t bring itself to explicitly say so, and seemed to desperately want to assert its institutional relevance.

The response from the state legislature only confirmed that the Court’s decision is going to be largely irrelevant.  The Seattle Times reported that, after the Court’s decision, “lawmakers on both sides of the aisle made clear that when the Legislature convenes Monday to address a $1.5 billion budget shortfall, education cuts will still be on the table,” despite the Court’s decision.  Washington, like most states, has faced declining revenues, and funding education at the level desired by the plaintiffs would require drastic cuts to other essential government services.

If McCleary counts as a victory for school finance advocates, then states facing these lawsuits should hope for similar defeats in the future.

-Joshua Dunn




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