OLYMPIA – Almost nothing can ramp up the rhetoric in Washington like the latest episode of “McCleary,” the state’s ongoing drama about properly funded public schools, starring the Supreme Court, the Legislature and the lawyers for families who got tired of waiting for the constitutional mandate to be fulfilled.
To call this a soap opera would be to diminish the seriousness of the issue, although the dialog is sometimes just as overwrought. Besides, diminishing seriousness on this topic is the province of some legislative Republicans who think everything would be fine if we could just get rid of the current court and replace it with between five and nine people who think like them.
Last week saw the lawyer for the families who successfully sued the state respond to the state’s lawyers. Last month, state lawyers officially had told the Supreme Court what the Legislature did in the 2016 session to move toward meeting a constitutional obligation to come up with enough money to cover “basic education.”
It’s not as if the justices live as hermits during the session without the benefit of newspapers, television or the Twitterverse to tell them what lawmakers did and didn’t do. The court seems to believe that lawmakers should own up to their actions by writing it down on paper and turning it in, something like miscreant 6th graders writing 100 times “We will not ignore our paramount duty to provide for the education of the state’s children.” At the end of each session, the court wants them to explain what they did to fulfill this duty.
The report of the 2016 session might reasonably have been boiled down to “not much, but we promise to figure out a way to not ignore it next year.” As uncompelling as that argument seems, the attorney general’s office argued that the court shouldn’t just be happy, but it should lift the current $100,000-a-day fine, which the Legislature is not paying, on the theory lawmakers could pay it if they wanted because there’s much more than that in the state’s reserve bank accounts. Besides, the Office of Financial Management is keeping track of the fine, a process that involves counting the number of days since Aug. 13, 2015, and adding a dollar sign to the front and five zeros to the back.
As expected, this did not sit well with Thomas Ahearne, the plaintiffs’ attorney, who found it necessary to pull out the dictionary definitions of steady, real and measurable –three words the court used to describe the progress it expected as the 2017-18 school year approached – and to insist this ain’t any of them.
After a rendering of the nearly four-decade legal fight over proper school funding, Ahearne spiced up his argument with a bit of questionable hyperbole. He likened the Legislature’s constitutional failure akin to the internment of Japanese Americans during World War II and suggested the court get as tough with lawmakers as the feds did with Alabama Gov. George Wallace in the fight over desegregation.
It seems doubtful anyone who was interned at Minidoka would compare that experience to attending public school in Washington, and whatever the inadequacies of some schools, it’s unlikely that they are comparable to the separate but unequal schools for black students in the Jim Crow South.
Superintendent of Public Instruction Randy Dorn, meanwhile, submitted his own legal papers, offering the court his five-step program to force the Legislature into acting. It started with fines for legislators individually, rather than as representatives of the state as a whole. It continued through the loss of certain levies, tax exemptions and non-education funds not required by the constitution. And it ended with closing schools until the Legislature finds a way to fully fund them.
That last one happened in New Jersey, when that state’s Legislature wasn’t coming up with enough cash for its schools in 1976, Dorn says in his brief.
To be clear, the 1976 order took effect on July 1, when school was out/ So no kids showed up for class with a new lunch box and six freshly sharpened No. 2 pencils, only to find the doors padlocked. The Legislature got called into a special session and complied before the school year started.
Fans of a state income tax for Washington should note that’s how New Jersey got one. But getting a state income tax in Washington big enough to cover McCleary could require a constitutional amendment, which needs not just a super majority of a recalcitrant Legislature but a majority of a historically unwilling electorate who couldn’t vote before November.
So it’s a gamble, and a failure could lead to this: In order for the Legislature to spend more on schools to make them better, to make classrooms a bit less crowded and pay the teachers a better wage, the court would have to close the schools, empty the classrooms and leave teachers with no pay.
Not sure that’s the outcome anyone is aiming for.