Aerial view of Wahkiakum High School
Aerial view of Wahkiakum High School in Cathlamet, Washington, taken with a DJI drone (Courtesy of the Wahkiakum School District)

The high­est court in the Ever­green State has unan­i­mous­ly ruled against a rur­al Wash­ing­ton school dis­trict that brought a con­sti­tu­tion­al chal­lenge over the state’s long­time K‑12 facil­i­ties fund­ing regime, find­ing that the state’s para­mount duty does not extend to school cap­i­tal con­struc­tion costs.

Wahki­akum School Dis­trict Num­ber 200, rep­re­sent­ed by a team at Fos­ter Gar­vey PC led by Tom Ahearne (of McCleary fame), was hop­ing to obtain a rul­ing from the Supreme Court hold­ing that facil­i­ties are not exclud­ed from the direc­tive in the Con­sti­tu­tion that says it is the state’s para­mount duty to amply pro­vide for the edu­ca­tion of all of its youth, wher­ev­er in the state they may reside.

The dis­trict ini­tial­ly filed suit in Wahki­akum Supe­ri­or Court two years ago, seek­ing to con­vince a tri­al court judge to find that Arti­cle IX of the Wash­ing­ton State Con­sti­tu­tion oblig­ates the state to cov­er school con­struc­tion costs.

But Judge Don­ald J. Richter ruled against the dis­trict. Ahearne’s team then appealed to the Wash­ing­ton State Supreme Court on behalf of their client.

Oral argu­ment was heard on March 14th, 2023, in Tumwater.

The com­plete pre­am­ble of Arti­cle IX reads:

SECTION 1. PREAMBLE. 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.

“The above word­ing does not exclude need­ed edu­ca­tion facil­i­ties. And Wash­ing­ton law requires the judi­cial branch to uphold the above word­ing as writ­ten – not engraft an unwrit­ten exclu­sion into it to save the State mon­ey,” the dis­trict argued. “Wash­ing­ton law does not allow the State to instead give itself a get-out-of-jail-free card by insert­ing an unwrit­ten exclu­sion into the para­mount edu­ca­tion duty imposed upon it by the plain, unequiv­o­cal word­ing of Arti­cle IX, §1.”

The jus­tices disagreed.

“The plain lan­guage of arti­cle IX, sec­tion 1 does not alone answer this ques­tion,” Jus­tice Sheryl Gor­don McCloud wrote, in an opin­ion joined by most of her col­leagues. (Jus­tice Charles W. John­son penned a con­cur­ring opinion.)

“But read­ing that pro­vi­sion in the con­text of the Wash­ing­ton State Con­sti­tu­tion as a whole and its devel­op­ment since the state’s found­ing shows that the con­sti­tu­tion (1) treats school cap­i­tal con­struc­tion costs dif­fer­ent­ly than it treats oth­er edu­ca­tion costs and (2) requires the State and local school dis­tricts to share the respon­si­bil­i­ty for those school cap­i­tal con­struc­tion costs.”

McCloud con­clud­ed the opin­ion’s intro­duc­tion by writ­ing: “For that rea­son, we hold that the con­sti­tu­tion does not include cap­i­tal con­struc­tion costs with­in the cat­e­go­ry of ‘edu­ca­tion’ costs for which the State alone must make ‘ample pro­vi­sion.’ We affirm the tri­al court’s deci­sion to grant the motion to dismiss.”

The state, rep­re­sent­ed by Attor­ney Gen­er­al Bob Fer­gu­son’s team, suc­cess­ful­ly point­ed in its argu­ments to oth­er pro­vi­sions of the Con­sti­tu­tion that treat school cap­i­tal con­struc­tion costs as “a shared respon­si­bil­i­ty between the State and local school dis­tricts,” includ­ing Arti­cle IX, §3 and Arti­cle VIII, §6.

Those argu­ments res­onat­ed with the justices.

They rea­soned:

“[W]hen we inter­pret arti­cle IX, sec­tion 1 in the con­text of the rest of the con­sti­tu­tion, it is clear that the con­sti­tu­tion as a whole treats fund­ing for school cap­i­tal costs dif­fer­ent­ly than it treats fund­ing for oth­er edu­ca­tion costs. In gen­er­al, the con­sti­tu­tion pro­vides greater flex­i­bil­i­ty for local dis­tricts to raise funds for school cap­i­tal con­struc­tion — cre­at­ing a scheme in which the State and local dis­tricts share the respon­si­bil­i­ty for fund­ing school cap­i­tal construction.”

Since the dis­trict did not take a posi­tion on how much respon­si­bil­i­ty the state “might bear for school cap­i­tal con­struc­tion costs if it were less than one hun­dred per­cent of those costs,” the Court declined to address whether “there are con­sti­tu­tion­al para­me­ters to this shared responsibility.”

Jus­tice John­son devot­ed much of his con­cur­ring opin­ion to dis­cussing the dis­tric­t’s facil­i­ties fund­ing predica­ment, as opposed to ana­lyz­ing the text of Arti­cle IX.

John­son not­ed that Wahki­akum is a small, rur­al school dis­trict with­out a large tax base. Its build­ings are aging and vot­ers have repeat­ed­ly declined to sign off on pro­pos­als to increase tax­es or go into debt to raise fund­ing for new facil­i­ties. The dis­trict can’t access state fund­ing for its needs because it can’t bring its own rev­enue to the table as the school fund­ing regime cur­rent­ly requires.

“As the major­i­ty and State point out, the district’s claim in this case was not that the State must appro­pri­ate enough mon­ey so that cer­tain school dis­tricts do not fall below some unspec­i­fied thresh­old based on a school district’s vot­er base’s will­ing­ness and prac­ti­cal abil­i­ty to raise funds itself,” John­son observed.

“The dis­trict should make that argu­ment. On remand, the par­ties should dis­cuss how much respon­si­bil­i­ty the State may bear for school cap­i­tal con­struc­tion costs if it is less than 100 per­cent of those costs, and whether arti­cle IX, sec­tion 3 cre­ates an oblig­a­tion that the com­mon school con­struc­tion fund be dis­trib­uted in a man­ner that is acces­si­ble to the low-income, rur­al districts.”

Ahearne and Fos­ter Gar­vey will no doubt find John­son’s guid­ance use­ful as they pon­der the next steps for their client. But today’s deci­sion is a reminder that our school fund­ing cri­sis requires leg­isla­tive action to mean­ing­ful­ly address. Courts can’t write bud­gets or appro­pri­ate mon­ey for school dis­tricts. The lim­its of the Supreme Court’s pow­er were made painful­ly clear in the McCleary case, with the Leg­is­la­ture doing lit­tle to com­ply with the rul­ing for sev­er­al con­sec­u­tive years.

The Court even­tu­al­ly decid­ed the Leg­is­la­ture had done enough to purge its con­tempt in the McCleary case and the jus­tices washed their hands of the mess. Dis­tricts like Wahki­akum have kept limp­ing along in the meantime.

The Sen­ate’s cur­rent cap­i­tal bud­get writer, guber­na­to­r­i­al can­di­date and 5th Dis­trict Sen­a­tor Mark Mul­let, react­ed to the rul­ing in an inter­view with Dahlia Baz­zaz of The Seat­tle Times, express­ing a will­ing­ness to appro­pri­ate more mon­ey to rur­al school dis­tricts. This par­tic­u­lar pas­sage got our team’s attention:

Mul­let says he plans to fight for more fund­ing in the next leg­isla­tive ses­sion. He esti­mates there will be $200 mil­lion to $300 mil­lion in rev­enue from the new cap­i­tal gains tax that can be used toward school con­struc­tion funding.

Left unmen­tioned in the arti­cle is the fact that Mul­let vot­ed against levy­ing that cap­i­tal gains tax on the wealthy in 2021. The only rea­son those dol­lars are avail­able to be invest­ed in school cap­i­tal con­struc­tion is because the Sen­ate ignored Mul­let and passed ESSB 5096 over his objections.

Here we are in 2023 and Mul­let is express­ing a will­ing­ness to spend the dol­lars he did­n’t want to raise two years ago. Does that mean he’s changed his mind about ESSB 5096? These com­ments seem to us like a tac­it admis­sion that per­haps levy­ing a cap­i­tal gains tax was a wor­thy and much need­ed idea after all.

Spend­ing incom­ing rev­enue is easy com­pared to the task of pass­ing leg­is­la­tion to col­lect it in the first place. Gov­er­nor Jay Inslee first pro­posed levy­ing a cap­i­tal gains tax on the wealthy in Decem­ber of 2014. It was not until April 2021 that the House and Sen­ate oblig­ed and sent him the leg­is­la­tion he had requested.

NPI’s research found ear­li­er this year that 67% of Wash­ing­ton vot­ers want the Leg­is­la­ture to keep mov­ing Wash­ing­ton for­ward on its tax fair­ness jour­ney by levy­ing a wealth tax on extreme­ly large for­tunes. The Leg­is­la­ture adjourned with­out levy­ing a wealth tax this year; it will have anoth­er oppor­tu­ni­ty next year.

Pas­sage of a wealth tax could pro­vide sore­ly need­ed rev­enue to ensure the state meets its para­mount duty to amply pro­vide for the edu­ca­tion of all youth. It could pro­vide resources for pri­or­i­ties like uni­ver­sal no cost school meals, nurs­es, spe­cial edu­ca­tion, and more gen­er­ous cap­i­tal con­struc­tion grants for rur­al school districts.

Mul­let’s will­ing­ness to allo­cate cap­i­tal gains tax rev­enue to help rur­al school dis­tricts with their facil­i­ties fund­ing prob­lems is appre­ci­at­ed despite his past oppo­si­tion to ESSB 5096, which was for years one of our top leg­isla­tive priorities.

Super­in­ten­dent of Pub­lic Instruc­tion Chris Reyk­dal sug­gest­ed in a state­ment that the Leg­is­la­ture get rid of the six­ty per­cent thresh­old for pas­sage of school bonds.

We sup­port that idea, but it’s unlike­ly to pass giv­en fierce Repub­li­can oppo­si­tion. Con­sti­tu­tion­al amend­ments require a two-thirds vote of each cham­ber to pass. As robust as the state’s Demo­c­ra­t­ic majori­ties are, they aren’t big enough to send con­sti­tu­tion­al amend­ments to vot­ers with­out Repub­li­can help. Not yet, anyway.

Regard­less, the House and Sen­ate should def­i­nite­ly take up the idea and vote on it again, to force Repub­li­cans to go on the record in sup­port of allow­ing the few to decide whether bond mea­sures pass instead of the many.

It is vital to remem­ber that many of Wash­ing­ton’s rur­al school build­ings aren’t just old — they are dan­ger­ous. Many are sit­ed in areas that our Depart­ment of Nat­ur­al Resources’ Wash­ing­ton Geo­log­i­cal Sur­vey has found to be vul­ner­a­ble to geo­log­ic haz­ards, includ­ing earth­quakes, tsunamis, and lahars. It is total­ly unac­cept­able that many of our chil­dren are going to school in poten­tial death traps.

NPI’s research has pre­vi­ous­ly found that an out­right major­i­ty of Wash­ing­ton vot­ers think that upgrad­ing our seis­mi­cal­ly vul­ner­a­ble school build­ings is pri­mar­i­ly a state respon­si­bil­i­ty, rather than a local respon­si­bil­i­ty. After our poll find­ing was pub­lished, at NPI’s urg­ing, the Leg­is­la­ture unan­i­mous­ly passed a school seis­mic grant safe­ty bill and put mon­ey in the cap­i­tal bud­get to fund it.

But the dol­lars leg­is­la­tors have appro­pri­at­ed so far are only a frac­tion of what is need­ed to ensure our kids are learn­ing in safe, clean, well ven­ti­lat­ed buildings.

Inter­est­ing­ly, State Repub­li­can Par­ty Chair Jim Walsh empha­sized the need for prop­er facil­i­ties when he released a state­ment com­ment­ing on the deci­sion. Said Walsh: “Impris­on­ing chil­dren in dilap­i­dat­ed school build­ings will dri­ve even more Wash­ing­ton fam­i­lies away from the school sys­tem. They will choose pri­vate schools and home school­ing instead. And the pub­lic school sys­tem will suffer.”

Walsh, how­ev­er, is part of the prob­lem: he is enthu­si­as­ti­cal­ly back­ing an effort to repeal the cap­i­tal gains tax on the wealthy orga­nized by Repub­li­can donor Bri­an Hey­wood, who wants Wash­ing­ton to be a tax haven for rich peo­ple like him.

The state won’t be able to pro­vide finan­cial help to dis­tricts like Wahki­akum if it does­n’t require the wealthy to pay their fair share in dues to sup­port our K‑12 schools. That is a pre­req­ui­site for solv­ing this prob­lem — full stop. The state’s anti­quat­ed tax sys­tem sim­ply isn’t capa­ble of pro­duc­ing enough rev­enue to amply pro­vide for the edu­ca­tion of the state’s youth, which, as we’ve just cov­ered, the Supreme Court has decid­ed does­n’t even include school cap­i­tal con­struc­tion costs.

How­ev­er, by tak­ing action to bal­ance the state’s tax code, the Leg­is­la­ture and Gov­er­nor can accom­plish for Wahki­akum what the Court did­n’t and could­n’t do yes­ter­day. That will require bold lead­er­ship and deter­mined organizing.

We at NPI will do our part to make it happen.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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