Wednesday, September 7, 2016

Supreme Court Hears Arguments to Lift State Sanctions, Threaten More Sanctions

The Washington State Supreme Court heard arguments today from attorneys representing the State and the McCleary plaintiffs to assess whether the State is on track to amply fund basic education for the more than one million students attending public schools, and whether a fine imposed in August 2015 should be lifted.

Following the briefs already submitted to the Court, attorney Alan Copsey for the State argued that billions of dollars had already been spent to comply, the Legislature had met every deadline, and the final piece of funding for compensation would come sometime during the 2017 regular or special session. Under questioning, Copsey said the current $100,000-a-day sanction had made a difference in executive and legislative action, and that Senate Bill 6195, which created a joint legislative task force, will result in a path forward for the 2017 legislature to follow. He also said specifically that the State was not asking the Court to rescind its jurisdiction over the case, but to lift the sanction because the Legislature will take action next year.

Copsey also said that what was different this time than with previous groups and reports was that the Legislature was getting the specific information it needed – the “missing information” on compensation – to put together the solution. He stated that the Legislature recognized it needed to solve the problem with its reliance on local levies and suggested that one option was to lower the levy limit locally and increase the state portion – the so-called “levy swap.” In response to a question from Justice Stephens, the author of the 2012 decision and a former Orchard Prairie school director, Copsey said lifting the levy lid would be only a temporary solution if the Legislature didn’t reach a decision by the end of the regular session, and that the burden for basic education funding was clearly on the State. Finally, Copsey said the “ample funding” date milestone should be the start of the 2018-19 school year, not January 2018 or fiscal year 2018.

Arguing for plaintiffs, Thomas Ahearne used a merry-go-round analogy several times to illustrate the circular nature of the State’s response and the lack of a plan, phased in over the years, to show how it was going to reach full funding. Ahearne lambasted the levy swap proposal as bringing no new revenue into a system that the Court has already said is underfunded, and said the State was ignoring the fact that activities such as transportation and MSOC – while meaningful progress had been made – are still not at the levels of funding of “actual cost.” Ahearne also said that the State should pick up the tab on school construction that is specifically tied to basic education programs such as full-day kindergarten and smaller K-3 class sizes. (In rebuttal, Copsey said school construction has never been part of basic education but the Legislature had appropriated billions for school construction over the years).

Unlike Copsey, Ahearne said he didn’t think the sanctions had made a difference, pointing to the fact that the Legislature hadn’t even set the penalty money aside in a separate account. He urged the justices to give the legislature a clear choice that if lawmakers failed to take significant action in 2017 that something else would happen. Frequently, Ahearne used language from the Court’s own decision and orders to remind them of what the State should be doing, and firmly rejected the idea that SB 6195 met the Court’s standard of a plan.

In his closing, Ahearne said the clock had run out on the McCleary children but it wasn’t too late for the Court to threaten serious action in the form of invalidating public schools statutes or tax breaks. It was time to get off the merry-go-round and actually go somewhere.

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