The trial that Judge John Erlick called “one of the best, if not the best” he’s ever tried culminated Wednesday with five hours of closing arguments, complete with charts, graphs and dollar figures. But each side’s presentations probably could be boiled down to two words: “pay up” by the Network for Excellence in Washington Schools and “trust us” by the State.
“People who work on the front lines of education see year after year after year a straightforward truth: the respondent is not making ample provision for the education of all children,” lead NEWS attorney Tom Ahearne said. Citing Article IX, section 1 of the Washington Constitution (“It is the paramount duty of the state to make ample provision for the education of all children residing within its borders…”), Ahearne asked the judge for a four-part remedy:
- Declare that three key words – “paramount,” “ample” and “all” – mean precisely what they say, and not merely “important,” “barely enough” and “most.”
- Declare that basic education should be defined by three things: the State Supreme Court’s 1978 ruling when the Seattle School District similarly sued the State; by the minimum knowledge and skills set forth in HB 1209; and by Washington’s nine Essential Academic Learning Requirements.
- Declare that the State is not currently complying with its constitutional mandate to amply provide for the education of all children.
- Order the State to establish both the actual cost of compliance and the means for how to fund that cost.
Senior Assistant Attorney General Bill Clark said that the request by NEWS was “bad law” based on “bad science” and “won’t work.” He said the State’s expert witnesses testified that more money for education won’t guarantee student achievement. He asked the judge to give HB 2261 – the law passed earlier this year that seeks to redefine basic education and change the school funding formula in Washington – time to resolve the funding issue.
“Not surprisingly, I won’t be ruling from the bench,” Judge Erlick said at the end of the non-jury trial’s 25th day, adding that he expected to use his allotted full 90 days to make a decision. Under that timeline, his ruling might not be until late January, during the first month of the 2010 Legislature.
For decades, the State has played “smoke and mirrors” by using a watered-down definition of basic education, funding it insufficiently and calling it good, Ahearne said. The shortfall forces school districts to try to pass local levies to help pay what the State should cover, he explained, adding that the State should be compelled to design a program of funding that amply provides for the education of all children. “Didn’t the court do that in 1978?” Judge Erlick asked, referring to the Seattle School District case. “We haven’t done it yet,” Ahearne replied. “It’s exactly our point, your honor.”
Judge Erlick said HB 2261 might provide what NEWS seeks by moving away from the current funding allocation method and looking at actual education costs. “Isn’t that what you’re looking for?” he asked.
Ahearne said the State has consistently failed to properly define education. He later said that HB 2261 provides no funding and “there’s no guarantee that (future legislatures) will want to do the dirty work of paying for it.” The State, Ahearne said, is essentially saying, “Trust me, Judge. We’ve got this new bill…We’ll finally get it right.” The problem with HB 2261 is that “we’ve had 30 years of studies and governors saying they intend” to fully fund education, Ahearne said, comparing the situation to a Kenny Chesney lyric (“Everybody want to go to heaven/But nobody want to go now”). “Everybody wants to fund education,” he said. “Problem is, nobody wants to right now.”
Bill Clark asked Judge Erlick to reject the remedies sought by NEWS so that HB 2261 could have “a chance.” The law’s timeline stretches from now through 2018. “It’s what’s the State of Washington is looking for,” Clark said. “You have to let that (process) continue.” While the State Constitution lays out the duty of funding education, “the Legislature has the right to determine the means,” he said later. “So, let them do so.”
Clark downplayed the testimony during the trial of superintendents from the Chimacum, Colville, Edmonds and Yakima school districts, all of whom said their efforts to help every student reach the State’s standards were hampered by lack of adequate State funding. He said they were “advocates,” not experts. He said the State’s expert witnesses, most of whom were from out of state, examined schools in the 13 representative districts in the case and thought “things seem to be operating just fine.” He said testimony that non-employee related costs, or NERCs, were underfunded by more than $500 million annually was based on a “wish list” of costs.
Ahearne said the superintendents were “on the ground” and daily experienced the shortfalls in State funding. He said the State performed a superfluous examination of the 13 representative districts and that the estimate on NERC underfunding was based on a survey by the Office of the Superintendent of Public Instruction of “what school districts are actually spending.”
Judge Erlick asked Ahearne if he thought the State should provide 100 percent funding of construction costs for districts; Ahearne responded that the State should pay what is essential for the education of all students. He gave a similar answer when the judge asked what technology, laboratories, shop classes and other areas should be funded by the State.
“At the end of the day, what we want is (for the) State to design a program that amply provides for the education of all children,” Ahearne said. “If they determine (a specified amount for technology, etc.), we can debate whether that’s enough. But right now, they’re not doing that at all.” A cost study is at “the heart of your case,” the judge replied, and the State and others have produced “dozens and dozens. You’re asking for another one.” Ahearne said that the studies “always allow the State to punt” on their funding responsibilities, excluding the full costs of transportation and construction.
Later, Judge Erlick said the issue might center on effective use of resources. “It may not be a question of funding,” he told Ahearne. “It may be a matter of what you do with the dollars at the local level.” At another point, the judge asked Clark what would happen if the court found evidence of local levy dollars being used to fund basic education. “Aren’t the petitioners entitled to some sort of relief?” he asked. Clark replied that the judge could “tell the Legislature to fix the problem…We have to have the chance to make things right.”
During a discussion of dropouts, Judge Erlick told Clark, “we need to look at statistics and realize these are individual students, and each student not graduating is a cost to society.” “I don’t want to lose sight that there are lives here,” replied Clark, even though it was NEWS, not the State, that emphasized real people throughout the trial. “This issue is probably the most significant domestic issue we face… It all costs money, and none of it is cheap.”
Ahearne said that Clark had misconstrued his comparison that illustrated the deep shortfall between what the State pays for basic education and what districts actually pay. In his closing remarks, he also said that the statewide dropout rate was “unacceptable” and that WASL scores were “nothing short of abysmal” because of lack of State support.
“The time has come for this court to act,” Ahearne concluded. “We’re not talking about numbers. We’re talking about real world kids.”
As the trial ended, Judge Erlick complimented both sides. “I have to say that your presentations are one of the best examples I’ve seen,” he said. “Passion and zealous advocacy don’t have to (trump) professionalism and common courtesy. It’s been a pleasure. Your superbly tried case is one of the best, if not the best, I’ve tried in this court.”
