Vance Commentary Tees Up the Real Issues in McCleary

This morning, Crosscut posted Chris Vance’s commentary on the end of the legislative session and the next steps in the separation of powers fight between the Legislature and the Supreme Court in the ongoing McCleary case.

Commentary: Court will have a big say on Legislature’s school shortcomings

Vance sets up the coming storm:

Despite all the momentous and commendable policy decisions they made this year, legislators, by their own admission, failed to comply with the state Supreme Court’s order that they adopt a plan showing how they will achieve full state funding of basic education by 2018. And they adopted a budget that actually increases the unconstitutional reliance on local levies. So now all eyes turn to the Court. Will they take action to force lawmakers back to Olympia to deal with education funding?

He spends much of the op-ed crediting Republicans in the Legislature for the reforms and budget solutions, and then returns to McCleary.  Vance correctly points out what I’ve been preaching for some time, that very few, including those in the Legislature, appreciate the profound nature of the constitutional issues involved in this case:

As I wrote earlier this year, despite the fact that this issue has been percolating for decades very few people seem to really grasp what the McCleary decision is all about. This was a common observation among education lobbyists throughout the 2015 session.

Vance gives us a nice, concise review of the details of the case:

So let’s review McCleary:

The Washington State Constitution says it is the state’s “paramount duty” to “amply fund” a “uniform” system of public schools.

Our per-pupil expenditures are among the lowest in the nation. That’s not ample. And school districts rely on local levies for up to one-third of their funding. Given the disparities in local wealth and levy funds among districts, that’s not uniform.

The original, 2012 McCleary decision directed the state to fund a new “prototypical school model” by 2018 without the use of levies. The Court didn’t pull this order out of thin air; they were simply directing the Legislature to actually fund the education model, and meet the timelines legislators themselves established when they passed House Bill 2261 in 2009.

Then, Vance captures the real issues in the case better than any other story I’ve seen to date:

Little progress was made during the 2012 and 2013 sessions so the court justices ordered the Legislature to show them a specific, detailed, “complete” plan in 2014 for achieving full funding by 2018. The 2014 Legislature failed to adopt such a plan. The court found the state in contempt but withheld sanctions until after the 2015 session. But the Legislature, once again, did not pass a McCleary plan this year.

Why is this so difficult? Because actually meeting the court’s order will require billions of new dollars over and above what the Legislature has already spent. And doing away with levies for basic education will impact local bargaining, potentially changing dramatically how we govern our schools.

Yes, the Legislature has put roughly $2 billion more into our schools in the past two budgets. Lawmakers have reduced class sizes in grades K-3, and put money into all-day kindergarten and school transportation, materials and operating costs. But that is just the beginning of the state’s obligation.

There are still thousands of teachers and other educational staff who derive some or all of their compensation from local levies. That’s unconstitutional. The state must pay 100 percent of the compensation for basic education. In addition, the prototypical school model referred to by the court includes lower class sizes in grades 4-12, and the hiring of thousands more paraeducators, administrators, counselors and support staff. The total additional cost to fully implement the model without local levies is over $5 billion per year.

So the Legislature has to find a funding source to replace levies and increase overall education spending by billions of dollars. Ideas have been floated and bills introduced, but to this point there has been no political will to engage in serious bipartisan, bicameral negotiations on this huge issue.

Similarly, there is no consensus on how to limit the use of levies and change education governance. The powerful Washington Education Association, which represents teachers, is adamantly opposed to a law undermining local bargaining, but if you can’t use levies to fund basic compensation, what is there to bargain over locally?

Folks, the Court’s expectation is not simply that the Legislature appropriate a certain amount of new money to K-12, whether in 2015 or by 2018.  The Supreme Court expects, in addition to those funding targets, a dedicated revenue source for K-12 and a solution to the levy issue.  The Legislature might not ever be able to deliver on this expectation, not in 2015 nor by 2018.

Vance wraps up his op-ed:

The 2015 Legislature put more money into K-12, but it made no progress on these daunting structural issues and the legislators have no plan to show the court. In fact, four years after the original McCleary decision, the State of Washington still has no plan for how to create a constitutional educational funding system.

What will the state Supreme Court do? No one knows. But a common belief in Olympia is that the court must now take some sort of action, and that action will most likely result in lawmakers returning to work for a fourth special session sometime this year. A decision from the court seems likely before Labor Day.

So will the 2015 Legislature be remembered for achieving remarkable bipartisan progress on transportation and higher education, or for failing to avoid a messy constitutional showdown over education funding? Stay tuned. We’re not done yet.

Excellent analysis by Vance.  But the real issue here, and one that no one seems eager to focus on . . . yet, is whether the Supreme Court is stepping beyond the constitutional limits on its authority.  That’s a bigger question that I’ll take up in a later post.

President’s Immigration Actions Heard by 5th Circuit Court of Appeals

Obama Plan for Immigration Action Gets a Cold Reception at Appeals Court

New York Times

by Julia Preston

NEW ORLEANS — Government lawyers labored on Friday to persuade federal appeals court judges here to allow President Obama to move ahead with sweeping initiatives to protect immigrants in the country illegally. But the judges’ questions seemed to make it ever more unlikely that the president’s programs, which he has hoped would be a central piece of his legacy, would start any time before the last months of his term, if at all.

A panel of three judges of the United States Court of Appeals for the Fifth Circuit heard arguments in a lawsuit by Texas and 25 other states challenging executive actions Mr. Obama announced in November that would give temporary reprieves from deportation to as many as four million immigrants and also permit them to work.

In February, a federal district judge in Texas blocked the programs. On May 26, a panel of the Fifth Circuit denied the administration’s emergency request to cancel that injunction, with two judges supporting the denial and one dissenting. This time, the judges heard a broader appeal by the government on the challenge to the executive actions.

Police officers arrested protesters after hundreds of people staged a sit-in at an intersection to bring attention to immigration reform. Credit Edmund D. Fountain for The New York Times

But even though the judges issued no decision on Friday, it seemed highly probable that the administration would lose. By a stroke of bad luck for Mr. Obama and good fortune for the states bringing the lawsuit, two judges on Friday’s panel — Judge Jerry E. Smith and Judge Jennifer Elrod — are the same conservatives who ruled against the administration in May. Court officials said both panels had been randomly selected, well before the administration even brought its case to the Fifth Circuit.

A setback now would be decisively damaging to the president’s argument that he has full authority to carry out the vast programs nationwide and would leave the administration little choice but to take the case to the high-stakes and slow-moving deliberations of the Supreme Court and to hope for a favorable ruling before the end of its term in June of next year.

Mr. Obama has run into far deeper legal trouble than officials anticipated when they decided last year to create a program by executive action, without approval by Congress, extending deportation deferrals and work permits to millions of undocumented immigrants who are parents of American citizens or legal residents.

Judges Smith and Elrod peppered the government’s lawyer, Benjamin C. Mizer, a principal deputy assistant attorney general, with skeptical questions about his contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States.

Referring to Homeland Security Secretary Jeh Johnson, Judge Elrod asked, with a note of incredulity, “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”

The administration’s arguments about the president’s powers have faltered over Texas driver’s licenses. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Judge Smith, in his 42-page opinion in May, agreed.

But Scott Keller, the solicitor general of Texas who argued for the states, drew concern from all three judges when he said Mr. Obama’s programs were not only a “sweeping assertion of executive power” but were breaking the law. His arguments raised complex new issues for the judges to consider this time around, probably extending the time before they rule.

The judge who sided with the administration in May, Stephen A. Higginson, was not on the panel on Friday. The third member was Carolyn D. King, nominated in 1979 by President Carter, and formerly chief judge of the Fifth Circuit. She sharply questioned Mr. Keller, the Texas lawyer.

Jurists and legal experts familiar with procedures in the Fifth Circuit court said it was coincidence — and very unusual — that the two panels hearing different phases of the immigration lawsuit included two of the same judges. Judge Smith is an outspoken conservative who has wrangled publicly with Mr. Obama over the extent of the president’s powers.

Court officials said the chief judge, Carl E. Stewart, was so concerned it might appear that the court had acted improperly to influence the immigration case that he ordered a clerk to flip a coin in the presence of witnesses to decide which of two panels scheduled to hear cases this week would handle the Texas lawsuit.

The debate in the hushed, elegant courtroom was overwhelmed several times by the sounds of drums and horns from about 600 protesters from immigrant rights groups in the street outside, including people who traveled from California, Arizona, Texas and Alabama.

A smaller group sat down in the street in front of the offices nearby of the federal Immigration and Customs Enforcement agency. A spokesman for the protesters said 14 people were arrested, but were quickly released.

“People are still getting deported every day,” said Saket Soni, the executive director of the New Orleans Workers’ Center for Racial Justice. He said the demonstrations were intended to “supply hope to the movement and signal to ICE there is much more of this coming.”

The administration has faced even more serious legal trouble with the federal district judge in the case, Andrew S. Hanen. He has chastised officials for failing to inform him that more than 100,000 deferrals with extended three-year terms had been issued under the president’s programs to young immigrants before he imposed the injunction. He ordered the government to cancel the deferrals and collect about 2,000 work cards that were also granted.

Infuriated that the administration had not collected every card, on Tuesday, Judge Hanen issued an unusually harsh rebuke, calling the officials’ conduct “unacceptable and completely unprofessional.” In an action federal judges rarely take, he ordered the secretary of Homeland Security, Mr. Johnson, to appear in person in his Brownsville court on Aug. 19 to explain why the judge should not find him in contempt.

According to McCleary Attorney, Legislature’s Budget Not Enough

McCleary attorney says new budget doesn’t comply

KING 5 News

Natalie Brand, KING 5 Political Reporter

After eight years of legal briefs and battles with the state over education funding and reform, attorney Tom Ahearne is gearing up for his next fight, taking aim at Washington’s new budget.

“This is just groundhog day all over again,” said Ahearne.

The attorney won the landmark McCleary case in 2012 when the State Supreme Court ruled that the legislature is failing to fully fund education. Justices ordered lawmakers to come up with a plan to fully fund basic education and find a stable way to pay for it, beyond relying on local levies.

“The state has not complied with the court’s order,” said Ahearne of the new budget. “The state is in contempt right now because their annual reports haven’t been doing what the state promised. This budget doesn’t do it either.”

Governor Jay Inslee and lawmakers defended the budget passed Tuesday before midnight. It includes an additional $1.3 billion for K-12 education, class size reduction for grades K-3, and a cost of living increase for teachers.

“Is there a lot more work to do? Hell yes,” said Senator Kevin Ranker (D-Orcas Island)

“While there’s a lot of people running around here claiming that we got out of here without raising taxes, guess what? We didn’t do what we had to do,” said Ranker.

Rep. Chad Magnedanz (R-Issaquah), who sits on the committee on Article IX Litigation, admitted not all requirements had been met, specifically a measure to address dependence on local levies. However, he said good progress has been made in showing the legislature’s capability to meet requirements by the 2017-2018 deadline set by the case.

According to court order, both the state and the Ahearne will file progress reports by the end of July.

The Supreme Court will then convene to consider the “adequacy of the State’s compliance and, if necessary, the imposition of contempt sanctions or other remedial measures,” according to a June court order.

If the state is found not to be in compliance, sanctions could be imposed. Although, what those sanctions could be is “the million dollar question,” according to a spokeswoman for the court.

Former Supreme Court Justice Phil Talmadge said possible sanctions could range from fine to an order that additional money be expended. However, Talmadge describes this situation as “unchartered territory.” What will happen is anyone’s guess, he said.

As the legal fight continues, Tom Ahearne said the two families at the center of the case are still waiting for change. Three of their four children have already graduated from school. Only Carter McCleary remains in high school.

“What does Stephanie McCleary think of this? They’ve filed this suit; they’ve won, but their kid isn’t getting help or funding as the constitution requires,” said Ahearne.