What are the Criteria for Contempt?

Getting ready for the April 30 McCleary Report from the Legislature on Ample School Funding.

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This past January, the Washington State Supreme Court essentially put the Legislature on notice. “It is clear that the pace of progress must quicken,” it said, and ordered the Legislature to produce, by April 30, a “complete plan for fully implementing … basic education … between now and the 2017-18 school year.” The court also required “a phase-in schedule for fully funding each of the components of basic education.”

If you feel like you have read this before, you’re right. This is similar language to the first order issued in December of 2012. But, that one really didn’t produce a credible plan. Will this one?

It could. One reason is that the Supreme Court has upped the ante a bit. “We have no wish to be forced into… holding the legislature in contempt of Court,” the ruling says, but stopped there. But, we will if we have to… is probably how most readers would fill in the rest.

But what constitutes contempt? One wonders what criteria the court will use in making this determination.

In terms of the actions of the Legislature in the 2014 session, what’s done is done (and that was very little). At this point, all that’s left is developing the funding plan the court has asked for. Somewhere, some legislative staff person is scribbling away, and legislators are (hopefully) reviewing it carefully to make sure it reflects their values, and most importantly, reflects the oath each of them took to uphold the state constitution.

So, what should this plan have in it? What does a good plan look like?

As an advocate for students, and the system of educators that serve them, I think about this question in two ways: things I definitely want to see in the April 30 report, and things I definitely don’t want to see. Let’s start with the latter.

Pitfalls the April 30 McCleary Report should avoid:

  • “Supreme Court, mind your own business” – Any report that leaves an impression that the Legislature is more concerned with laying stake to its legislative branch powers, and less concerned with actually solving the problem of how to make ample provision for it schools, is a bad sign. To this point, it’s difficult to see how the Supreme Court has trampled on legislative branch powers. For the most part, it has simply ordered the Legislature to implement and fund legislation it has already passed (HB 2261 in 2009 and HB 2776 in 2010). With a few exceptions, the message has been: follow your own law, on the timelines you yourselves established. Courts in other states (New Jersey and New York come to mind) have been far more aggressive and prescriptive, but so far, the Washington Supreme Court is probably not anyone’s textbook example of judicial overreach.
  • “The Court wants a single plan from us, but that’s not really how this place works” – Any plan that fails to make progress in forging a common vision among leadership from the House and the Senate is not much of a plan at all. The Legislature might be quick with excuses on this point: either technical (‘we cannot bind ourselves beyond a two-year budget cycle’) or political (‘we really can’t realistically pre-negotiate a major budget plan before a major election cycle), but the fact is we’re always right before an election cycle, and major social change requires a budget lens of longer than two years. Bottom line: if the Senate is going to issue a plan, and the House theirs, and never the twain shall meet, then they might as well not go through the exercise. A plan restating the current political stalemate is not a plan, but a restatement of the problem for which a plan is needed.
  • “Our definition of ‘ample’ is… a little more than we’re doing now?” – The hard truth is that the framers of our constitution created a very high – indeed, inconveniently high — standard for school funding in this state. Experts agree that use of the term “ample provision” constitutes the strongest such standard in the nation. Meeting such a high standard will require very difficult choices. So any plan that implies the opposite — that McCleary compliance can be achieved on the margins, by one-time fund transfers, natural growth in tax collections from newly legal marijuana sales, or elimination of the non-existent hundreds of millions in “waste, fraud, and abuse” that is often alleged to be infesting our state government operations, is a plan invalid on its face. There is no way around it: this is going to be hard, and the plan should reflect that assumption.

And now for the opposite – here are some things to consider as part of the plan:

  • Speak to the people you serve – It is easy for legislators and their staff to get caught in the bureaucratic atmosphere of government administration and inter-agency reporting. For a report of such significance, addressing an issue of paramount importance to our state, it’s appropriate for the plan to address not only the court, but the citizens of our state. Say something to teachers, parents, and students in the system about what you hope to achieve through the major financial investment you plan to make. What vision do you have for public schools? What aspirations do you have for the young people of our state? And, how will your plan help us get there?
  • Consider setting a goal for funding and for student outcomes – The Legislature should consider grounding its funding plan in a vision for outcomes for students. By 2020, what percentage of third graders do you believe can be reading at grade level? By how much can we increase our graduation rate? By how much can we close our opportunity and achievement gaps? Focusing on students should both ground legislators in the realities of implementation, and help legislators focus on what truly is important in this work.
  • If you need help, ask for it – If House and Senate leadership do not think they can overcome their differences in fulfilling the requirements of the Washington State Constitution, they might consider asking for help. Major policy issues of this sort are often dealt with by identifying elder statesmen – sometimes one representing a respected leader with cross party appeal, or sometimes two such individuals representing each political party or different sides of the ideological spectrum (not necessarily the same thing). A former governor or a civic leader with undeniable gravitas could be tapped to help formulate a path forward. Incorporating a mechanism for cross-chamber communications, negotiations, and brokering could be an important part of a serious plan to implement McCleary.

There might be a tendency for legislative leadership to think of the current McCleary situation as a predicament, or a liability. In fact, the opposite is true. It is a relatively rare opportunity for one generation of leaders to leave a legacy for the leaders of the next generation. The current political leadership in the House and the Senate could make a real name for itself here. How appropriate (and incredible) would it be for this group of individuals to hold a joint press conference and express, in one voice (despite their policy differences) their commitment to providing for the current and future generations of children in this state? That is both a realistic outcome – and, arguably, a necessary outcome – of the McCleary plan the Legislature will need to produce by April 30.

I often think about what frame of mind the original writers of the constitution were in when they inserted the term “ample provision”. Did they understand what a high standard they were creating for school funding, and the subsequent turmoil it would create? I suspect they did. They probably understood that the impacts wouldn’t be felt for many decades, but they also probably understood the bold legacy they left for future generations of children. The question is: will current legislators honor that legacy, or, will they show contempt for it?

~ Ben Rarick,
Executive Director

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