Washington State Superintendent of Public Instruction Randy Dorn asks Supreme Court to Bring Legislature Back for Fourth Special Session

On July 27 2015, the legislature filed its required report to the Supreme Court asking the Supreme Court to lift the Contempt citation imposed on September 11 2014 after the legislature had ignored years of demands by the Supreme Court to come up with at least a plan to fully fund our public schools. The 2015 report includes a sentence admitting that the legislature failed to come up with a plan to restore school funding as required by the Supreme Court: “The Committee acknowledges that the 2015 Legislature did not enact or otherwise provide the Court with a document that could be characterized as the “plan” ordered by the Court.” Here is a link to the legislature’s report to the court: http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/2015%20Report.pdf

Shockingly, the brief filed with the report claims that “a plan at this point would serve no useful purpose.” The brief also optimistically claimed that the legislature is on track to fully fund schools by the 2017-2018 school year (two years from now). Here is a link to the legislature’s brief to the court. http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/84362-7_McCleary_v_State_150727.pdf

Also on July 27^th, State Superintendent of Public Instruction, Randy Dorn, filed an Amicus Brief asking the Supreme Court to call the legislature back into session immediately to come up with a school funding plan. Superintendent Dorn’s brief claims that an additional $3.8 billion in funding would be needed to provide full school operation funding (billions more would be needed for school construction funding). Given the time it takes to build schools and hire teachers needed for lower class sizes, Superintendent Dorn claims that not only will the legislature fail to meet the 2017- 2018 deadline, but that it is no longer even possible to meet the 2017-2018 deadline. He therefore proposes extending the deadline for compliance by three more years to the year 2020-2021.Even this assumes that the legislature is called back into special session and is able to come up with a plan this year.

This new brief is a dramatic reversal of what Dorn asked the court for in his brief on August 14 2014. A year ago, Dorn asked the court to be patient and give the legislature one more year to come up with a plan to fully fund public schools (despite the fact that the court had already granted the legislature chances in 2013 and 2014). 2015 made it “Three Strikes and Your Out.”Apparently Randy Dorn has ran out of patience and now realizes the futility of giving the legislature endless chances to comply with the Supreme Court order which was originally issued way back in 2012. Here is a link to his brief: http://www.k12.wa.us/Communications/PressReleases2015/amicusbrief.pdf

In his press release also issued on July 27^th, Dorn explains why the state legislature should be called back to Olympia immediately:
“Every elected official, including me, is required to take an oath of office. Part of that oath is, ‘I do solemnly swear that I will support … the Constitution and laws of the state of Washington.’…Our state constitution explicitly mentions one — and only one— paramount duty: that the state ‘make ample provision for the education of all children’ and that the system of public schools shall be general and uniform. The most recent budget passed by the Legislature doesn’t even come close to that. In fact, it increases the state’s dependence on local levies, which the Court has ruled is unconstitutional… Some districts can pass levies a lot more easily than others. This is leading to a situation of haves versus have nots… That’s why I’m calling for all 147 legislators to come back together to work on their paramount duty and produce a general and uniform system.”

In his Amicus brief, Dorn explains in more detail why the Court should bring the legislature back for a special session now rather than waiting and hoping the legislature comes up with a plan in the 2016 session:
“Why A Special Session Of The Legislature Is Necessary… In McCleary, the Court adopted the Legislature’s self-imposed deadline of 2018… there are only two Legislative sessions remaining: the 60-day regular beginning January 2016, and the 105-day session in 2017… The 2017 long session will produce a new budget for the 2017-19 biennium, beginning July1, 2017. This, however, is just two months before the start of the 2017-18 school year—the year in which ESHB 2261 requires the redefined program of basic education and funding for the program to be fully implemented. That is why it is important to have a special session of the Legislature this year that can focus exclusively on implementing ESHB 2261, addressing inadequate staff, compensation, and local levies.”

The Dorn Amicus Brief also states: “The Superintendent developed a 7-point plan to implement ESSB 2261 and SHB 2776. The Superintendent estimates his plan will cost an additional $7,717,811.175 per biennium starting in fiscal year 2019.” http://k12.wa.us/Communications/FullyFundPlan/PlanCostTable.pdf

Thus Randy Dorn contends that fully funding schools will require an additional $7.7 billion per two year biennium or $3.8 billion per year. Ironically, this greatly under-estimates the actual amount of additional revenue needed for several reasons. First, Dorn’s 7 Point Plan does not lower class sizes down to either national average class sizes or the class sizes required by Initiative 1351. Second, the Dorn plan extends by three more years the time allowed to fully fund public schools (from 2018 to 2021). Third, $3.8 billion per year required to fund schools in the Dorn plan does not consider the cost of school construction needed to lower class sizes and address the school construction backlog created by the past 20 years of the state legislature ignoring the actual cost of building schools. In case you have not read it, here is the link to the full Dorn Plan: http://www.k12.wa.us/Communications/FullyFundPlan/default.aspx

At a press conference on the Dorn 7 Point School Funding Plan on April 14, 2015, I specifically asked Randy Dorn if his School Funding Plan also included a way to pay for our $10 to $20 billion school construction backlog:
David Spring: We have had billions of dollars in school construction bond failures in the past few years and we have a $10 to $20 billion dollar school construction backlog. Does your plan talk about how we are going to build schools to meet the Supreme Court requirement that the State needs to provide funding to build schools and not just operate them?
Randy Dorn: In my plan, we do not specifically mention that. We are working with the House and the Senate on a plan and Treasurer McIntire will talk about that (with his revenue proposal). (Unfortunately, Treasurer McIntire did not talk about this and the House and Senate have also ignored the severity of the school construction problem).

Here is a link to this question and answer at the Dorn School Funding Press Conference: http://www.tvw.org/scripts/iframe_video.php?eventID=2015040113&start=2950&stop=3025

Dorn proposes Delaying Full School Funding for Three More Years
Shockingly, Randy Dorn admits in his brief to the court that even if the legislature complied with the Court order immediately there is no longer enough time to build the needed classrooms that would be required by the 2017-2018 school year – and in fact that even if funding to build schools was provided immediately, facilities for lower class sizes would not be fully available until the 2020-2021 school year.

Here is the quote from his Brief: “The (Dorn 7 Point School Funding) plan recognizes the challenges in hiring qualified staff and building adequate facilities, and accordingly extends the time for complete compliance to the 2020-21 school year.”

For parents, teachers and children who have waited 18long and painful years for school funding to be restored to the national average and class sizes to be lowered to the national average, as it was in 1997, the admission by Randy Dorn that it now cannot possibly occur for five more years – until September 2020 – even if the Supreme Court called the legislature back into special session immediately – is extremely disappointing, and all the more reason to call the legislature back immediately rather than kicking the school funding can down the road for yet another year.

A Personal Story Explaining Why I Oppose Any Further Delays to School Funding
I would like to share a personal story as to how devastating this admission is – the first admission by any state official that full funding is not likely to occur even in the 2017-2018 school year.

My daughter attends one of the lowest funded most over-crowded school districts in Washington state – the Snoqualmie Valley School District. School funding in our school district is about 10% below the state average. Since the state average is about 20% below the national average (47^th in the nation), funding in our school district is about 30% below the national average- resulting in class sizes 20 to 30 percent above the national average. As a parent, it has been very painful to watch my daughter forced to spend her school days in classrooms that were so crowded, that there were not even walking paths between the desks. Each room could not possible hold one more desk. One of my daughter’s classes had more than 100 students in it. Classes typically had more than 30 students.

In January 2007, when the McCleary school funding lawsuit was filed, my daughter was in the First Grade. In February 2010, when the Trial Court made it’s decision recognizing that the state legislature had failed to fully fund public schools, my daughter was in the Fourth Grade. In January 2012, when the Supreme Court issued their Order agreeing with the trial court that the state failed to fully fund schools, my daughter was in the Sixth Grade. It is now July 2015 and my daughter just completed the Ninth Grade. She is scheduled to graduate from high school at the end of the 2017- 2018 school year. Therefore, even if the legislature did comply with the State Constitution and fully fund schools by the 2017 -2018 school year, my daughter would only get the benefit of one actual year of normal class sizes during her entire 13 years of schooling.

This is why I was sharply critical of the Supreme Court decision in 2012 to allow the state legislature to kick the school funding can down the road for six more years. It is because every year the court allows the legislature to delay proper adequate school funding, another 80,000 students graduate without every having seen the benefit of normal national average class sizes. And one million students are forced to endure extremely over-crowded classes for yet another year.

So when Randy Dorn admits that there will not be full funding in 2018 – that it is not even possible until at least 2020, I say enough is enough. It is time to call the legislature back in session NOW and tell them they are not leaving until they have come up with a specific plan to fully fund public schools in the 2017 – 2018 school year. This includes immediately giving school districts at least $4 billion to start building more than 100 new schools THIS YEAR so they will be ready to go when the teachers are hired in the 2017 – 2018 school year. If the legislature can come up with $9 billion for the Boeing tax break in just two days, then they can come up with at least $4 billion for our one million students also in two days!

Moreover, justice delayed is justice denied. If a person is caught speeding on the freeway, what kind of court would let the law breaker off on the promise that they will stop speeding six years from now? What kind of court would allow the law breaker to keep speeding for an additional six years? Especially if the law breaker was harming one million students by failing to comply with the law! We need to see the legislature for who they really are – a group of people who have failed to comply with their oath of office and failed to uphold the state constitution.

If the court does not order the legislature back to Olympia to come up with a complete and specific plan during the month of August, then as a parent, I will advocate that the teachers go out on strike in September. A strike would be harmful to our students. However, it is not as harmful as spending 13 years in over-crowded classrooms, the highest class sizes in the nation, just because legislators are more interested in giving tax breaks to billionaires than they are in funding our public schools.

Dorn offers no solution to the funding problem
Sadly, while Superintendent Dorn‘s 7 Point Plan estimates the cost of fully funding schools requires an additional $3.8 billion per year (not including construction costs), it does not include a way to pay for that plan.

In fact, the only plan submitted in the 2015 legislative session that provides more than $4 billion per year in additional school funding was Senate Bill 6093 – which would fully funding public schools by repealing a 1997 tax break used by billionaires to avoid paying their fair share of state taxes.

McCleary Plaintiffs also File a 68 Page Brief
The plaintiff’s brief reminds the court that in their 2012 order they stated:
“Year 2018 remains a firm deadline for full constitutional compliance.”

The plaintiffs then reminded the court of the legislature’s pathetic treatment of teachers which has caused teachers to lose 30% of their purchasing power in the past 20 years:
“The State suspended those COLAs every year after the 2008-2009 school year. Restoring them to at least bring salary funding levels back up to their unconstitutionally low 2008-2009 levels would require this biennium’s budget to fund a 15.4% catch-up COLA. The State instead decided to fund 1.8% in the biennium’s first year, and then add another 1.2% (for a 3.0% total) in the biennium’s second year.”

The plaintiffs also criticized state proposals to swipe more than one billion dollars from local school districts and call it state money:
“Taking away local money that local voters approved for local enhancements above basic education, then handing it back and calling it “State” money, does not fill Washington school districts’ underfunding hole.”

On page 34, the plaintiffs expose the grossly underfunded school construction problem:
“With respect to capital costs, the State knows that its “full” funding of the additional classrooms needed to expand kindergarten from half-day to full-day is at best only partial funding. The State knows that full-day kindergarten and reduced K-3 class sizes require about 5,698 more classrooms at a cost of $2 billion. But to “fully fund” that $2 billion cost, the 2015-2017 budget provides $200 million for an “assistance” program that allows a school district to apply to potentially receive a portion of the needed classrooms’ construction costs if that district can certify it has local funds for the rest.”

On page 49, plaintiffs ask the court to take one or more of the following actions:
(a) Enjoin the State from acting on any other legislation until it has fully complied with the court orders in this case;
(b) Invalidate all tax exemptions authorized or re-authorized after this Court’s January 2012 decision, with that invalidation lasting until the State convinces this Court that the State has fully complied with the court orders in this case.
(NOTE: There goes the Boeing $9 billion tax break!)

The Plaintiffs then provide some interesting graphs showing how far away the state is from compliance and what would be needed in the 2017-2018 school year to actually comply with the 2012 Supreme Court order to fully fund public schools:

First is the additional revenue needed in the next couple of years:

Here is the revenue needed just to restore teacher pay:

Here is a link to the Plaintiffs brief:
http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Plaintiff-Respondents%202015%20Post-Budget%20Filing.pdf

Conclusion
Randy Dorn’s Amicus brief and the Plaintiff’s brief both present extremely strong arguments for requiring the legislature to come back for a fourth special session. If the Supreme Court agrees with Superintendent Dorn, and accepts his opinion as an “expert witness,” it is very likely that they will require the legislature to come back and come up with a plan to fully fund schools in the coming weeks. The question then becomes how much additional revenue is actually needed to fully fund school construction and operation without relying on unfair local levies? And where will these $4 to $8 billion per year in additional revenue come from?

In the next article, we will explain why the Dorn Plan dramatically underestimates the actual cost of building and operating schools. Then, in a third article, we will explain why the billion dollar “levy swap” proposal would harm schools. In our fourth and final article in this series, we will compare seven school funding options the legislature should consider if the court orders them back to Olympia. As always, feel free to email me (Springforschools (at) aol (dot) com) with your questions and comments.

Originally published at Coalition to Protect our Public Schools