Previewing tomorrow’s court hearing on McCleary school funding lawsuit: What are the options?

As we mentioned in today’s newsletter, the state Supreme Court will hear oral arguments tomorrow morning on the McCleary school funding lawsuit. The court wants a detailed response from the state on its plans to comply with the court’s mandate to fund fully basic education. 

The News Tribune reports on what’s at stake. Melissa Santos breaks it down clearly.

The plaintiffs are asking the court to ensure the Legislature keeps its word by promising to dramatically increase sanctions in the future if lawmakers don’t follow through.

That could mean issuing an order that will shut down the state’s school system next fall if lawmakers fail to act by then, or striking down all state-approved tax breaks as unconstitutional on the first day of the 2017-18 school year. Those options are advocated by the plaintiffs’ lead attorney, Thomas Ahearne, in the most recent brief he filed with the court.

The threat of delayed sanctions — as opposed to ones that would take effect immediately — would avoid an urgent crisis that Gov. Jay Inslee might have to call a special session of the Legislature to address.

Or, she writes, there’s the “nuclear option.”

Alternatively, the court could ramp up sanctions even sooner than the McCleary plaintiffs suggest.

That could mean issuing an order in the coming months that immediately shuts down schools, or invalidates billions of dollars in corporate tax breaks — a step that could prompt an emergency session of the Legislature, or at a minimum force lawmakers to come up with a solution much sooner in 2017 than they had planned.

Taking this step would enrage many lawmakers who already think the state Supreme Court has overstepped its bounds by demanding a funding plan and monitoring the Legislature’s progress in the McCleary case.

Santos says other options include doing nothing – leave sanctions in place and continue to monitor – or lift the sanctions and the contempt order (unlikely, she says) as the state is urging. 

The Seattle Times also has a good Q&A on the case, presenting the plaintiffs’ and state’s answers to the court’s questions. (The two parties don’t agree on much.)

The editorial board of the Columbian has a suggestion, though it’s not one likely to factor in the court’s timeline.

The simple solution, of course, would be for lawmakers to do their jobs, a task that largely has been ignored since the 2012 ruling…

Regardless of the arguments made in court this week, it is essential for the Supreme Court and the state to focus upon their paramount duty: Providing an adequate education for all Washington students.

The Seattle Times editorial board also offers some thoughts

WASHINGTON’S Supreme Court justices should ratchet up the pressure on lawmakers to finish their work to fully fund basic education. That includes reforming the way the state pays for public schools and ensuring better outcomes for students.

…First, the court should not give lawmakers any additional time to finish their work….

Second, the court should set out concrete penalties that maximize the pressure on the Legislature and governor while causing the least disruption for the state’s students, who are already in a system that leaves too many behind.

Among the penalties the editorial cites are the plaintiffs’ suggested alternatives, including repealing tax exemptions, closing the schools, and rewriting the state budget. They also add a new one:

Another possibility is for the court to appoint a special master who will engage directly with lawmakers and the governor to goad them to quicker action — and report to the court directly with more intimate insights into the obstacles to resolution.

Many observers expect a lively hearing and a swift decision from the court. Possibly, though it’s still unclear how the separation-of-powers impasse will be resolved. If this were something that could have been resolved easily, it would have been. We suspect everyone would have preferred to avoid this moment.