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.