The NEWS trial: Summary and perspectives

The trial that sought to change education funding once and for all started on the final day of August, a week before most of the 1 million public school students in Washington headed back to class. Nearly eight weeks later, the trial ended on a typical autumn afternoon in Seattle, though the change in seasons hardly seemed noticeable inside Courtroom 1060 in King County Superior Court. For 25 trial days, attorneys for the Network for Excellence in Washington Schools and the State of Washington matched legal skills over a fundamental question:

Is the State fulfilling its constitutional duty to amply provide for the education of all Washington students?

“This was quite an experience to witness – history in the making,” former Washington State PTA President Linda Hanson said after the first major trial over K-12 school financing in Washington in more than 30 years. “Regardless of the outcome of the trial, this suit has brought a focus to the issues in education in our state.”

The opposing counsel spent 111 hours – Judge John Erlick allowed each side 55.5 hours, including closing arguments – making their cases in the non-jury trial. The difference in strategies appeared remarkable. NEWS attorneys, led by Tom Ahearne, focused on real people on the front lines: moms worried about their children’s educations, superintendents struggling to stretch school finances and meet State academic standards, current and former State officials aware of long-standing shortfalls in funding.

The State, led by Senior Assistant Attorney General Bill Clark, countered with a string of out-of-state expert witnesses – and a Missouri lawyer to question them – who said their research indicated that more money would not guarantee improvements in student performance and that Washington schools were doing just fine. Several of the State’s witnesses had extensive experience testifying in school finance suits in other states. At least two were paid up to $80,000 each by the State.

“I was continually struck by the fact that it wasn’t until closing arguments that the State talked about kids at all,” said Aimee Iverson, general counsel for the Washington Education Association. “The contrast with NEWS’ approach was quite stark – for NEWS, it is all about the kids and what this means to those in the system right now.”

Co-lead plaintiffs Stephanie McCleary and Patty Venema testified that families in their districts – Chimacum and Snohomish – needed to spend too much time raising money for programs and supplies that the State failed to fund. Both moms described crowded, ill-equipped school facilities and shed tears on the stand as they talked about their children.

McCleary was 13 when the Washington Supreme Court ruled in 1978 that the State had failed its constitutional duty to amply provide for the education of all Washington children. When NEWS filed a similar suit in January 2007, her daughter, Kelsey, also was 13. “A whole generation has gone by” without the State complying with its mandated duty, testified McCleary, who also has a son, Carter.

Minutes after McCleary finished testifying on the second day of the trial, a television reporter interviewed Kelsey. Looking into the camera, Kelsey said she was proud of her mom because she knew how hard it was for her mom to testify. In that moment, “I realized that maybe my kids did understand how big this really was, and what it can do for the future of education,” McCleary said. “Kelsey and Carter are my reason for signing on to this lawsuit.”

McCleary and other key witnesses told “the real stories behind the numbers and statistics, putting a face to the issues – a child’s face,” said Hanson, who has served as a NEWS consultant for community and government relations. “It is so easy to focus on the stats and forget we are talking about kids’ lives – lives as adults we are supposed to protect and nurture. This trial did that in a very unforgettable way.”

Four school district superintendents – Mike Blair of Chimacum (who is president of NEWS), Ken Emmil of Colville, Ben Soria of Yakima and Nick Brossoit of Edmonds – testified about on-the-ground conditions, each saying their districts could not operate without local levy funding.

The fact that Colville could maintain a comparatively low dropout rate despite tight funding “just means our house is burning down slower than someone else’s house,” Emmil testified. He also told the court that without sufficient funding, “I perform triage. I pick and choose which program lives and which program dies. We can’t afford all of them.” His description of struggling teens, including eight who stayed in school one year only because of the opportunity to play football, seemed to touch Judge Erlick. “You brought a slice of real life into my courtroom,” he told Emmil.

Brossoit riveted the courtroom with anecdotes about neglected and low-income students who did not speak English as their native language. While some use an old expression – “You can lead a horse to water, but you can’t make it drink” – to justify beliefs that all children can’t or won’t learn, Brossoit testified that the horse can’t drink when its “jaw is wired shut.” That wire is poverty and lack of English proficiency, he said, expressing frustration that the State fails to provide resources to replicate proven strategies that would help children succeed. At another point in his testimony, Ahearne asked Brossoit if he could accept his district’s current graduation rate. Brossoit’s memorable response: “If you take 100 kids on a field trip and bring back 80, is that acceptable?”

“The trial exposed the woeful lack of funding to help our kids reach minimal standards, the heavy reliance on local dollars to cover basic ed costs, the continued delays of the State meeting their constitutional duties,” Blair said after the trial.

Beyond the anecdotal evidence, Ahearne and his legal team, including attorneys Chris Emch and Edmund Robb, backed the NEWS case with solid research. In questioning each of the four superintendents, Ahearne outlined district funding from various sources, creating a diagram that resembled a layer cake while apologizing for his barely decipherable handwriting. (An expert witness later provided the technical term for such a diagram: a “stacked bar chart.”) But Ahearne made his point, showing that local levies bore a significant portion of a district’s budget. By supplementing teacher salaries to keep them competitive and supplementing bus transportation costs, among other expenses, local levies were paying what ought to be the State’s full responsibility, Ahearne argued.

It is critical to “view all education funding in order to understand how underfunded Washington public schools really are,” said Christie Perkins, public policy chair for the Washington State Special Education Coalition. “When a person tries to parse things out, it becomes a useless accounting problem that easily confuses everyone and sounds fishy even when it is not. The simple point is that public schools are hugely underfunded and this must change – now, and not 10 or 15 years from now.”

The logistics in the case were remarkable. Nearly 65 people were on the witness list and 1,000-plus exhibits filling about 70 bulging three-ring binders were prepared for admission. Time constraints cut those numbers to 28 witnesses and more than 300 exhibits.

Many of the witnesses and exhibits referred to HB 2261, the new law that seeks to broaden the definition of basic education and provide new financing formulas and was crucial to the State’s case. The State said the law would address NEWS’ concerns about compensation, staffing ratios, non-employee related costs, special education, transportation and other costs. Because it calls for future legislators to tackle the issue over the next decade, and because the actions of one Legislature are not binding on another, Ahearne said reliance on HB 2261 amounted to the State saying “trust me.”

State Rep. Skip Priest, a Federal Way Republican and the ranking minority member on the House Education and Education Appropriation committees, testified that HB 2261 failed to provide dollars for all-day kindergarten, equitable salaries, transportation and other areas with shortfalls, making it “another unfunded mandate and unacceptable.” That decades-long failure to fully fund K-12 education is “the Achilles heel” in Washington’s school finance system, Priest said.

In two days of testimony, Jennifer Priddy, assistant superintendent for financial resources for the Office of the State Superintendent of Public Instruction, spoke about how basic education in Washington is “woefully underfunded” by the State. She said Washington’s funding problems were historic and systemic, marked by outdated salary data for teachers and administrators, and pay inequities between districts. Priddy estimated that more than $1 billion in additional State support would be needed to fund basic education as defined by the State. And that’s a “most conservative estimate,” she said.

Among other witnesses testifying for NEWS was James Kelly, who said State efforts to raise academic achievement of all students, especially African-Americans, have resulted in a “false promise” because of insufficient funding. Kelly is president and CEO of the Urban League of Metropolitan Seattle. He said that African-American students in particular would achieve at higher rates if the State were to increase and sustain K-12 funding, which in turn would result in fewer dropouts, less crime and less reliance on welfare.

“As I heard closing arguments (last Wednesday), I felt pride that I was part of something of this magnitude,” co-plaintiff McCleary said. “I am hopeful because the message was clear that schools are grossly underfunded. I felt strong emotion as Tom Ahearne personalized who this lawsuit directly impacts and what it is about: the children of our state.”

Many members of NEWS lauded the legal team led by Ahearne. Blair complimented both sides, echoing Judge Erlick’s comments at the close of the trial. Erlick, who called the case “one of the best, if not the best, I’ve tried in this court,” is expected to render his decision by mid-January.

The long-awaited trial “proved what I already knew – every school in this state has successes and challenges,” former State PTA President Hanson said. “And our schools are doing amazing work despite those challenges. Without those challenges, the possibilities for our kids are endless.”