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.
“[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.