McCleary v. State: Why You Should Read This

The following is a guest blog post by Buzz Porter, an attorney at Dionne & Rorick, about the recent decision in McCleary v. State.

When a court issues a written opinion, most people (including their lawyers) immediately jump to the end of the decision to read the conclusion. Who won, who lost, and what’s the court ordering somebody to do? Just skip past all the pages of fact-finding and analysis and find the answer on the last page.

I’m sure that’s what most people did with Judge John Erlick’s decision last week in McCleary v. State, the broad-based challenge to the state’s funding of public schools under Article IX, § 1 of the state constitution. Especially with a document that is 103 pages long, and especially with a conclusion that is so clear, it is very tempting to simply read the result and set aside the rest of the document to read some other day–which will likely never come. The average parent, educator, advocate or policy maker is too busy trying to educate kids or close a $2.6 billion dollar hole in the state budget to read every line in a court opinion.

But let me suggest there is something worth reading between the 3-page table of contents at the beginning and the comprehensive conclusion on page 73 of the McCleary decision.

First, if you ever wanted to know why education is the preeminent, supreme, highest ranking, first priority duty of Washington state government (his words, not mine), then read Judge Erlick’s 10-page explanation of the special relationship between public education and Washington’s populist democracy. Washington has its own brand of democracy that requires more direct and better informed participation from its citizens than most other states. To sustain this type of democracy, public education is simply more important. Drawing upon sources as diverse as Horace Mann, Newt Gingrich and Sandra Day O’Connor, as well as at least ten prior court decisions, Judge Erlick finds this conclusion to be more than a philosophical or political statement–it’s embedded in our law.

Second, if you are a policy maker interested in ending the recent stream of school finance litigation, Judge Erlick’s decision very clearly identifies the fundamental flaw in the state’s current school funding scheme and explains how to fix it. Hidden beneath layers of complex formulas, our current system of funding of schools is built on a foundation of circular logic: full funding is whatever the legislature says it is. Without regard to whether that amount is ample. Without regard to whether that amount provides students with the tools to succeed. Without regard to whether that amount provides a program of basic education.

This flaw has not really been hiding for 32 years. You can find it audaciously stated in the landmark Basic Education Act of 1977 and in our legal code every year since then: “Basic education shall be considered to be fully funded by those amounts of dollars appropriated by the Legislature . . . .” RCW 28A.150.250. But basic education is not an amount of dollars–it is the skills and knowledge we want students to acquire. And to comply with the state constitution, the legislature must determine what it costs to provide that substantive content, and then fund it.

Finally, Judge Erlick’s decision is surprisingly important reading for anyone concerned with fairness and equity in public school finance. All school finance lawsuits in the last forty years have been labeled as either “adequacy” lawsuits (concerned with whether enough funding is provided) or “equity” lawsuits (concerned with whether the funding was distributed fairly). The McCleary case is primarily an “adequacy” lawsuit–it’s about the amount of funding provided. (Although in Washington, adequate is not good enough and “ample” is our constitutional standard.)

But Judge Erlick’s opinion demonstrates that the division between adequacy and equity cases is often artificial, and sometimes wrong–at least under the Washington Constitution. Article IX, §1 of our constitution requires more than the “ample provision” for education, it requires that the state make “ample provision for the education of all children.” And underlying almost all of Judge Erlick’s step-by-step decision making in the McCleary opinion are conclusions that the current system is not ample because it is not fair. The current system is not ample, he finds, because it does not provide sufficient opportunities for disadvantaged students to succeed. The current system is not ample, he finds, because there are disparities in the quality and functioning of school facilities within and between school districts. The current system is not ample, he finds, because some school districts rely on levies to attract high quality teachers–levies which are not passed or even submitted to the voters in other districts.

So, I recommend you assign yourself an extra credit project and read all 73 pages of Judge Erlick’s decision. It may not make the New York Times best-seller list, but it will educate you on what Newt Gingrich and Horace Mann have in common.

Buzz Porter is a 1990 magna cum laude graduate of Pomona College and a 1993 graduate of the University of Washington School of Law where he was an Executive Editor of the Washington Law Review. Prior to joining Dionne & Rorick in 1993, Buzz worked with elected officials in Seattle, California and Washington, D.C. Buzz is a past president of the Washington Council of School Attorneys.