Making sense of McCleary

Here on the SBE Sounding Board, you’ll find a user-friendly chronology of events in the McCleary court case (also available as a PDF). The chart includes what happened, why it happened, the takeaway, and excerpts of language from court rulings and legislative reports. When it comes to understanding why the state is in contempt of the Court, these details matter. You can get a very real feel for the language of the rulings, and what the Court expects in the way of a plan to fund basic education, by reading just these few pages. This summary outlines how urgent the situation in McCleary has become, and some areas the state may be focusing on in its budget response this session.

The state’s progress toward purging contempt

The Court found the Legislature in contempt of Court in its Sep. 11, 2014 order. The Legislature can only purge contempt by complying with the original order to provide “a complete plan for fully implementing its program of basic education for each school year between now and the 2017-18 school year.” The Court’s order reads as follows:

The State failed to submit by April 30, 2014 a complete plan for fully implementing its program of basic education for each school year between now and the 2017-18 school year. Sanctions and other remedial measures are held in abeyance to allow the State the opportunity to comply with the court’s order during the 2015 legislative session. If by adjournment of the 2015 legislative session the State has not purged the contempt by complying with the court’s order, the court will reconvene to impose sanctions and other remedial measures as necessary. On the date following adjournment of the 2015 session, if the State has not complied with the court’s order, the State shall file in the court a memorandum explaining why sanctions or other remedial measures should not be imposed.

In describing the program of basic education requirements in previous decisions and orders, the court references two landmark pieces of legislation (ESHB 2261 and SHB 2776) as well as the recommendations of the Joint Task Force on Education Funding (JTFEF). In January 2013, the State Board of Education reviewed the final report. The question becomes, then, what items must be in this plan for it to comply and effectively purge the contempt?

It seems clear that the four core commitments of HB 2776 need to be included in the plan: pupil transportation, full-day kindergarten, K-3 class size, and maintenance, supplies, and operating costs (MSOC). The House and Senate budget proposals address these in different ways. On this basis, legislators have declared these budgets to be responsive to the Court’s requirement for a plan, but a few questions remain.

There are other elements of the program of basic education that previous orders emphasize, but neither budget proposal fully addresses. These are educator salaries, facilities funding, and local levy reform.

The House budget provides salary increases for state-funded K-12 employees beyond cost of living adjustments (COLAs). Are these increases sufficient to satisfy the requirements of a basic education? To quote from the Jan. 9, 2014 order (pg 5):

Another area in which the State’s Report falls short concerns personnel costs.… it skims over the fact that state funding of educator and administrative staff salaries remains constitutionally inadequate…. nothing could be more basic than adequate pay… it is deeply troubling that the State’s report does not address this component of ESHB 2261 or offer any plan for meeting its goals.

While HB 2261 did not commit to specific salary levels, it did express an intent to “enhance the current salary allocation model” (pg 56, line 35). It continued, “The legislature also understands that continuing to attract and retain the highest quality educators will require increased investments.” While the Legislature has some latitude in how to achieve this goal, providing a uniform cost-of-living adjustment in this year’s budget may not fulfill the requirement and purge the contempt.

From the same order: “…the current level of funding falls short of the JTFEF plan in every category except full day kindergarten, and, as noted, the funding for that category does not account for the additional capital investment needed to implement…” So, again, while it’s clear that the Legislature has some latitude in how to achieve the outcome, the court seems to be saying that the facilities costs associated with implementing full day kindergarten and class size reduction are an implicit commitment of ESHB 2261. The Senate, through SB 6080, provides funding for additional classrooms for class-size reductions in kindergarten through third grade. Both the Senate and House capital budgets also provide bonds and funding increases for school facilities, and the House funding includes grants for facilities needed to implement full-day Kindergarten. It would seem to be important that the final budget deal respond in some way to this aspect of the order.

And finally, local levy reform. The original language of ESHB 2261 contains even-handed language about the role of local excess levies (see pg 38). The bill emphasized that “the opportunity for local communities to invest… promotes support for public schools.” In concludes that “local levy authority remains an important component of the overall finance system… even though it is outside the state’s obligation for basic education.”

The court’s focus on local levies has been stronger, focusing on the degree to which districts have relied on them to fund basic education programs. The court has clearly determined this aspect of the system to be unconstitutional. From the original decision:

The fact that local levy funds have been at least in part supporting the basic education program is inescapable. As of 2010, all school districts have a levy lid of 28 percent, and 90 grandfathered districts maintain levy lids as high as 38 percent. Laws of 2010, ch. 237. The trial evidence does not show that increases in local funding went strictly to providing “enhancements” to “basic education.” Instead, the increase in school districts’ levy capacity over the years reflects the growing need to fill the gap between state allocations and the actual cost of providing the program of basic education. Reliance on levy funding to finance basic education was unconstitutional 30 years ago in Seattle School District, and it is unconstitutional now.

Neither chamber has proposed any local levy reform in their budgets or other legislation this session. Furthermore, increasing K-12 funding this year, absent some plan for local levies, may in fact exacerbate the extent to which they contribute to base educator salaries. For example, if the final budget effectively buys out the costs that local levies have borne in supporting basic education programs in the past – for example, costs for full day kindergarten, maintenance and supplies, or lower K-3 class size – that newly freed up levy funding may in fact contribute to new salary increases in unpredictable and inequitable ways across the state. For this reason, what you do for levy reform might be equally important to when you do it, because the longer you wait, the harder it becomes to address.

There is much hard work still ahead to get to a state budget for the next two years. Parents, teachers, employers – indeed, every citizen of Washington – should look closely at the result of the negotiations going on now to see if it gets us on track for full constitutional compliance with the state’s paramount duty by 2018. Because all of us, whether or not we’re directly involved with the state’s education system, have a great stake in realizing the promise of McCleary.

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McCleary Timeline

January 5, 2012

What happened? Why?
State K-12 Funding Ruled Unconstitutional. Plaintiffs brought suit.
Network for Excellence in Schools, and Mathew and Stephanie McCleary et al.
Takeaway: K-12 funding violates the Constitutional provision for ample funding.
Language: The fact that local levy funds have been at least in part supporting the basic education program is inescapable. As of 2010, all school districts have a levy lid of 28 percent, and 90 grandfathered districts maintain levy lids as high as 38 percent. Laws of 2010, ch. 237. The trial evidence does not show that increases in local funding went strictly to providing “enhancements” to “basic education.” Instead, the increase in school districts’ levy capacity over the years reflects the growing need to fill the gap between state allocations and the actual cost of providing the program of basic education. Reliance on levy funding to finance basic education was unconstitutional 30 years ago in Seattle School District, and it is unconstitutional now.”“The legislature must develop a basic education program geared toward delivering the constitutionally required education, and it must fully fund that program through regular and dependable tax sources.”

“The State has failed to meet its duty under article IX, section 1 by consistently providing school districts with a level of resources that falls short of the actual costs of the basic education program.”

“This court intends to remain vigilant…”

July 18, 2012

What happened? Why?
Court Order to Legislature. Court responds to briefs on preferred method of “retaining jurisdiction.”
Takeaway: Show “real and measurable progress” toward ESHB 2261.
Language: “The state shall file periodic reports… summarizing its actions… The first report shall be filed no later than 60 days following… this order.”“In deference to ESHB 2261… the court’s review will focus on whether the actions taken by the legislature show real and measurable progress toward achieving full compliance… by 2018.”

September 12, 2012

What happened? Why?
Legislature responds – submits Article IX Joint Committee report. Responding to Court order.
Joint Select Committee on Article IX Litigation created to respond.
Takeaway: It’s the Legislature’s job to make laws, not the Court’s.
Language: “The complex process of legislative policy-making … takes time. HB 2824 assigned the Joint Task Force on Education Funding the duty of making recommendations on a permanent and reliable fund source for implementing ESHB 2261…”“…in the law-making process that is … uniquely assigned to the legislative branch, the Legislature will enact legislation… and appropriations to satisfy Article IX by demonstrating real and measurable progress toward these reforms.”

December 20, 2012

What happened? Why?
Court Order to Legislature. Responding to Court order.
Joint Select Committee on Article IX Litigation created to respond.
Takeaway: Legislature’s first report is unacceptable. Come up with a new plan at conclusion of 2013 session.
Language: “The state’s first report falls short…. The report does not sufficiently indicate how full compliance with article IX… will be achieved.”“Steady progress requires forward movement. Slowing the pace of funding cuts is necessary, but it does not equate to forward progress; constitutional compliance will never be achieved by making modest funding restorations… The year 2018 remains a firm deadline for full constitutional compliance.”

“The report submitted… must set out the State’s plan in sufficient detail to allow progress to be measured according to periodic benchmarks between now and 2018. The phase-in plan should address all areas of K-12 education identified in ESHB 2261)…”

“We cannot wait until ‘graduation’ in 2018 to determine if the state has met minimum constitutional standards.”

August 29, 2013

What happened? Why?
Legislature reports to Court as required. Legislature responds to requirement for post-2013 session progress report on McCleary compliance.
Takeaway: The Legislature invested $982 million, in K-12 basic education last session. Also, SHB 2776 already contains timelines and benchmarks for the Court to measure against. The Legislature has shown forward progress and can manage its own policy-making process.
Language: “The Court should find that the State is making progress toward implementing the reforms initiated in ESHB 2261 and achieving full compliance with article IX…”

January 9, 2014

What happened? Why?
Court responds to Legislature’s August Filing, issues order. Court responds in the first days of session to Legislature’s claim that it is making progress toward McCleary compliance.
Takeaway: The Legislature has made some progress, but not enough progress. It is not realistically on pace to implement the recommendations of the Joint Task Force on Education Funding (JTFEF) by 2018. The pace of progress must quicken.
Also, the Court is skeptical about the claim to have fully funded pupil transportation, and is also concerned about salaries, and capital costs.
Language: “Overall, the State’s Report demonstrates that it understands what progress looks like…. But, it cannot realistically claim to have made significant progress when its own analysis shows that it is not on target to implement ESHB 2261 and SHB 2776 by 2017-18 school year.… the current level of funding falls short of the JTFEF plan in every category except full day kindergarten, and, as noted, the funding for that category does not account for the additional capital investment needed to implement…”“OSPI estimates that additional capital expenditures are required of approximately $105 million for full-day kindergarten and $599 million for K-3 class-size reduction by 2017-18. Make no mistake, enhanced funding for full-day kindergarten and class-size reduction is essential, but the State must account for the actual cost to schools of providing these components of basic education.”

“Another area in which the State’s Report falls short concerns personnel costs. …it skims over the fact that state funding of educator and administrative staff salaries remains constitutionally inadequate…. nothing could be more basic than adequate pay… it is deeply troubling that the State’s report does not address this component of ESHB 2261 or offer any plan for meeting its goals.”

“We have no wish to be forced into entering specific funding directives to the State, or, as some state high courts have done, holding the legislature in contempt of court. But it is incumbent on the state to demonstrate… real and measurable progress.”

“The state shall submit, no later than April 30, 2014, a complete plan for fully implementing its program of basic education for each school year between now and the 2017-18 school year. This plan must address each of the areas of… ESHB 2261, as well as… SHB 2776. We recognize that the April 30, 2014 deadline shortens the time for the State’s report, but it is clear that the pace of progress must quicken.”

April 29, 2014

What happened? Why?
Legislature responds to Court’s January Order. Legislature responds to Court Order direction that the Legislature is not making adequate progress.
Takeaway: The Legislature refutes the Court’s claim that transportation is not fully funded and reminds the Court that MSOC is not required to be implemented linearly. The Legislature also acknowledges that it did not set timelines as directed by the Court.
Makes case that they are “on track” because they haven’t violated the timeline requirements of HB 2776.
Language: …The implementation of the general education K-12 MSOC is not statutorily required to be on a linear basis… The Legislature reiterates its position that the transportation investments made in the 2013-15 biennial budget brought the state up to full funding in this basic education category.”“With the enactment of E2SSB 6552, the Legislature thus implemented two key elements of the revised definition of basic education under ESHB 2261. It is significant that E2SSB 6552 was developed through a collaborative, bipartisan negotiating process that began in the Senate and that led to passage by overwhelming margins in both chambers.”

“The Legislature did not enact additional timelines in 2014 to implement the program of basic education as directed by the Court in its January 2014 Order. As noted above, this Committee previously reached a consensus on the broad funding levels required under SHB 2776. Nonetheless, there was no political agreement reached either among the political caucuses or between the legislative chambers on what the full implementation plan should look like…”

“The Court confirmed… that there is not a single viable plan to constitutional compliance. Within the bounds of the constitution, the Legislature retains authority for selecting the means of Article IX implementation. And within the bounds of the constitution, the Legislature may change these means.”

 June 12, 2014

What happened? Why?
Court orders show cause order.

Amicus Briefs, including one representing all living governors.

Legislature acknowledged it didn’t fulfill Court order, so Court considers contempt finding in hearing.
Takeaway: Orders Legislature to a show cause hearing. Asks Legislature why the Court shouldn’t find the Legislature in contempt, and why it shouldn’t use different intervention tools that have been tried in other states to enforce compliance.
Language: “ORDERED, that the state is hereby summoned to appear before the Supreme Court to address why the State should not be held in contempt for violation of this Court’s order… to submit… a complete plan for fully implementing its program of basic education… 

The state should address why, if it is found in contempt, any of the following forms of relief requested should not be granted:

  • Imposing monetary or other contempt sanctions
  • Prohibiting expenditures on certain other matters until the Court’s constitutional ruling is complied with;
  • Ordering the legislature to pass legislation to fund specific amounts or remedies
  • Ordering the sale of State property to fund constitutional compliance
  • Invalidating education funding cuts to the budget
  • Prohibiting any funding of an unconstitutional education system; and
  • Any other appropriate relief.”

September 11, 2014

What happened? Why?
Supreme Court order finds legislature in contempt. Court responds to filings in show cause hearing.
Takeaway: The Court finds the Legislature in contempt. The Legislature has until “the adjournment of the 2015 session” to “purge the contempt,” or else risk imposition of sanctions (including those discussed in June show cause hearing).
Language: “…The court has no doubt that it already has the legislature’s ‘attention,’ but that is not the purpose of a contempt order. Rather, contempt is the means by which a court enforces compliance with its lawful orders when they are not followed…. The court has repeatedly said, it does not wish to dictate the means by which the legislature carries out its constitutional responsibility or otherwise directly involves itself in the choices and trade-offs that are uniquely within the legislature’s purview…. These orders are not advisory… the court expects them to be obeyed even though they are directed to a coordinate branch of government.

ORDERED, That the state is in contempt of court for violating the court’s order dated January 9, 2014. Sanctions and other remedial measures are held in abeyance to allow the State the opportunity to comply with the court’s order during the 2015 legislative session. If by adjournment of the 2015 legislative session, the state has not purged the contempt by complying with the court’s order, the court will reconvene to impose sanctions and other remedial measures as necessary. On the date following adjournment of the 2015 session, if the state has not complied with the court’s order, the state shall file in the court a memorandum explaining why sanctions or other remedial ensures should not be imposed.” 

McCleary History Chart also available as a printable PDF.

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Letter to Legislature about the biology end-of-course exam

The State Board of Education supports legislation de-linking the biology end-of-course exam from graduation requirements. The letter below explains the Board’s position; it was sent to all Washington state legislators by email today.

Dear Legislators,
The Washington State Board of Education supports HB 1950, de-linking the high school Biology End of Course assessment from graduation requirements. On March 24, 2015, the results of the Biology Collection of Evidence (COE) were released. The results were discouraging and require your urgent response. Unless legislators act quickly to pass SBE priority legislation de-linking the biology end of course exam from graduation, over 2000 students in Washington State will not graduate in June 2015 due to this one assessment.

The 33 percent pass rate of the January Biology COE submission demonstrates that the Biology End of Course (EOC) doesn’t work in the current graduation assessment landscape. In July 2014, when similar results (34 percent) were returned for the 2014 COE pilot, the Board articulated a legislative priority to end the Biology EOC as a graduation requirement in favor of developing acomprehensive science exam that aligns with Next Generation Science Standards.

The Board considered the following points to determine the biology EOC and alternatives don’t work as part of a meaningful diploma for Washington students:

  • The biology assessment is not based on current Washington standards. The state adopted Next Generation Science Standards in fall 2013; however, the biology end of course exam is written to the old standards.
  • Unlike comprehensive English/language arts and mathematics assessments, where struggling students continue taking math and English classes every year after failing to meet standard, students who do not meet standard on the biology EOC generally do not receive any additional formal instruction in biology before they can attempt a retake of the EOC. This means that struggling students only get further away in time from the original instruction provided.

Successful mitigation of either of the two points can only be accomplished by local districts
committing significantly more resources than the state contributes. I have seen it: in addition to being a member of the State Board of Education, I am also a biology teacher who just finished teaching a class of four COE students; all submitted successful COEs in January. They were successful, but with a student/ teacher ratio of 4:1. Twenty percent of my full-time teaching contract was encumbered to the biology COE. It cost my small, rural district $14,000 to remediate these four students sufficient to meeting standard on the biology COE. It also cost the capacity to staff an additional section of third year science, or the ability to continue to use my time as a TOSA to support our district’s transition to the new teacher evaluation model.

Struggling or at risk students (ELL, homeless, foster students, poverty, trauma) are also the most likely to not have extended learning opportunities to fill in the gap, making it essential to reteach the entire subject before attempting the COE. If the legislature fails to act quickly on this issue, Washington’s most vulnerable students will be the most affected. I hope you will read the attached copy of an email written by a student named Michelle. In 7th grade, due to a family emergency, Michelle was sent away from her family home in Korea to live with an aunt and uncle in Washington. The email was forwarded to me by a distraught biology COE teacher the day after the biology COE scores were released. I am attaching it, with Michelle’s permission because it represents an excellent voice-from-the-field example of why your attention to this matter is so crucial.

Please act quickly to de-link the biology EOC from graduation. More than 2000 students want to graduate with their class in June; teachers, science departments, and districts around the state need to focus instruction on current science standards and developing comprehensive STEM science programs.

Thank you for your time and all that you do for students.
Sincerely,
Holly Koon, NBCT AYA-Science
Member, Washington State Board of Education
Biology and CTE Teacher, Mt Baker HS

Student’s letter below:
Hi Mr. Pena I was just wondering what would happen if I didn’t pass. I thought I was going to pass COE test so I ordered cap and gown and everything. But I didn’t pass it.. My parent thinks that I’m gonna graduate for sure and they were helping me with college that I’m planning to go. Everything is stuck because the test I have failed. Am I really not able to graduate if I don’t pass Eoc? I know I put my efforts on that task but I wasn’t smart enough to answer it correct. I really want to graduate and just wanna focus on my future. But that test is over everything. I’m so stressed. It’s just miserable that I can’t graduate just because of that test. I have all my credit, and I have decided what college I’m going to go. But that test takes over everything about my future. I don’t know what to do. Do I have to stick in Mariner for one more year if I don’t pass it? Please answer me with a truth :(

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Data Spotlight: What is happening with the Black-White Performance Gap in Washington?

Staff member Andrew Parr made a presentation to the State Board of Education on January 8, 2015 on changes to the performance gap between White and Black students. The questions being considered here are:

  1. Is the performance gap between Black and White students in Washington narrowing or widening?
  2. How does the increasing or decreasing Black-White performance gap for Washington students compare to the other states?

Methodology

To answer the study questions, SBE analyzed NAEP 4th and 8th grade reading and math assessment data from 2003 and 2013. The NAEP State Comparison online tool computes the average scaled score differences for a NAEP assessment between two administrations for the groups being compared; in this case, Black and White students. The gap differences for each of the four NAEP assessments were computed separately, averaged, and collapsed into the table and chart shown below. In this analysis, a positive value means that the average scaled score difference was greater in 2013 than 2003, but a positive value is undesirable as we would hope to see gaps narrowing over time.

*Note: Gap is the average scaled score difference on the NAEP between Black and White student groups.

*Note: Gap is the average scaled score difference on the NAEP between Black and White student groups.

NAEPgraph

Findings

For each of the four NAEP assessments, the Black-White performance gap was larger in 2013 as compared to the performance gap in 2003. The average performance gap increase for Washington students was 4.1 scaled score points (the second largest in the United States), while the U.S. average was a 2.9 scaled score point decrease.

More about this Analysis

Even though the White-Black performance gap as measured by the NAEP assessments widened for the years analyzed, the average scaled scores for both groups increased on most measures. The data show that for each NAEP measure, the gain by the White student group is greater than the gain of the Black student group, and this causes the performance gap to widen for the years in question. For the White-Black performance gap to narrow, gains by the Black student group must exceed gains made by the White student group.

2013 NAEP data also show that the Black student group in Washington is among the highest performing of the states with reportable populations. On the 4th Grade NAEP, the Washington Black student group was ranked the 8th highest in reading and the 6th highest in math. On the 8th Grade NAEP, the Washington Black student group was ranked the 5th highest in reading and the 7th highest in math.

The NAEP assessment program provides an excellent database from which to monitor student progress, but the conclusions drawn from these data should be tempered for two important reasons:

  1. Data for 12 of the United States are not included in this analysis because the NAEP reporting standards were not met for one or both of the student groups on one or more of the NAEP assessments. The most common cause for this type of omission is an insufficient sample size from which to generalize to the population. It would be more accurate to characterize Washington’s gap widening as the second largest increase of states with reportable data.
  2. The disaggregation into additional student groups (including the Two or More student group) in 2011 has an impact on this gap analysis. The White and Black student groups are not formulated on the same criteria in 2003 as in 2013, which means that the Black student group formulated in 2003 is not perfectly comparable to the Black student group formulated in 2013. The same can be said of the White student groups for the same years.

Compared to other states, the Washington Black student group performs at a higher than average level and the student group is improving. However, even considering limitations of the data, the White-Black performance gap is unacceptably large and has not narrowed.

For more information, you can also watch the full presentation to the Board.

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ESEA Reauthorization

The State Board of Education continues to analyze the Elementary and Secondary Education Act reauthorization process. A key aspect of this work is to make understandable a very complicated bill by dividing it into major conceptual segments for the Board’s next discussion in March.

How can we simplify this big law? To start, thanks to Andy Smarick, for putting together a helpful policy continuum graph (below) on the major issues at play in the ESEA reauthorization.

ESEA.Smarick.Graph

Smarick’s graph gives a sense of where on the policy continuum these various issues could land. He identifies the two extreme positions, and then attempts to create potential pragmatic landing spots in the center. Smarick created this graph in response to another helpful graph by Mike Petrilli.

Petrilli’s graph can probably best be described as ESEA policy odds-making: among the issues in play, what is likely to survive, what is not likely to survive, and what could go either way.

Together, these graphs are an excellent introduction to the ESEA reauthorization discussion. Checker Finn notes that a lot of important policy is being overlooked as many focus on testing issues, ignoring existing policy in federal law on English language learners, impact aid policy, etc.

Why do we care so much about federal policy? Although the State Board of Education is a state policy agency, federal K-12 law frames state policy discussions in a way that can limit – or even eliminate – options before we even start.

The goal of aligning Washington’s system into one unified accountability picture has to start with understanding what we need to do for federal Title 1 schools. That’s something we started when we implemented the Achievement Index. For example, we establish policy for the lowest performing five percent of schools in the state. Of those, let’s say two-thirds are title schools. In order to establish a truly aligned system, we need to start with the requirements of Title 1 schools and build from there to craft a unified policy for all impacted schools. In this way, the ESEA law can affect policy decisions for all schools.

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