Will the Wahkiakum lawsuit over capital funding for school construction be McClearly redux?

The Wahkiakum School District has filed a lawsuit charging that the state is failing to meet its paramount duty to amply fund basic education by the way school districts must handle school construction. (Lawsuit and FAQ at the link.) We noticed the story at the end of the year, but paid it little attention. That may have been a mistake. 

From the Wahkiakum County Eagle, which makes its first appearance on the blog:

In October, the Wahkiakum School District hired attorney Thomas Ahearne of Foster Garvey, the lead litigator in the McCleary case, in which the state was sued for failing to fund basic education sufficiently.

On Tuesday, the school district filed a lawsuit against the State of Washington in Wahkiakum Superior Court asserting that the state is failing Wahkiakum School District students and not upholding the state’s constitution, which describes the “duty of the state to make ample provision for the education of all children residing within it’s borders” in Article IX, Section 1 as “paramount,” and requires that it be done “without distinction or preference on account of race, color, caste, or sex.”

The district argues that this ample provision should include construction costs.


To illustrate their point, they compare Wahkiakum School District to Mercer Island School District, if each were to seek a $30 million dollar bond from property owners in their districts.

Wahkiakum, where approximately 57 percent of the students are low income and the per capita income is $29,000, the lawsuit says, would be asking property owners for nearly $4.00 per $1,000 assessed property value, while Mercer Island, where four percent of the district’s students are low income and residents have a per capita income of $90,000, would be asking property owners for $0.12/$1,000 assessed property value.

“Public education is supposed to be the great equalizer in our democracy. Our state government’s failure to amply fund the Wahkiakum School District’s capital needs, however, does the opposite. It makes our public schools a perpetuator of caste inequality,” the lawsuit reads. “The harsh reality is that an upper income district has the wealth to better mitigate the harm to its students caused by the state’s unconstitutional underfunding of school facilities than does a lower income district like Wahkiakum.”

The McCleary dragged on for about a decade, you’ll recall, and resulted in major changes in how the state funds basic education. The Seattle Times reports

A decade ago, the Washington Supreme Court ruled in the landmark McCleary case that the state was failing to uphold its state constitutional duty by amply funding basic education for all students. But that case, which upended many school districts’ reliance on property taxes, stopped short of changing the funding system for building construction and improvements.

The lead attorney acknowledges the heavy lift implied by the lawsuit.

He acknowledged, though, that the court might also take into account the tremendous amount of money the state has had to come up with because of the McCleary case — about $6 billion a year — and say “I don’t know if we want to give them another big bill.”

The Washington Research Council offers some good initial observations on what’s likely to be a long-running case. We recommend reading the blog post, but will excerpt a few thoughts. WRC senior analysts comments on an quote from the ST story.

The Seattle Times reports that Wahkiakum’s attorney is Tom Ahearne, the plaintiff’s attorney in the McCleary case.

Ahearne said he expects the case to go the state Supreme Court and could potentially have a significant statewide impact, especially in small and rural districts. He speculates there’s a good chance the court will extend its reasoning in McCleary to capital funding and side with the Wahkiakum district.

I’m not so sure. In a Nov. 2017 order in the McCleary case, the state Supreme Court wrote, “the State is correct that full state funding of school capital costs is not part of the program of basic education constitutionally required by article IX, section 1.” Further, the order noted,

Though classroom space is obviously needed to maintain all-day kindergarten and reduced class sizes, capital costs have never been part of the prototypical school allocation model, and it is not solely a state obligation under the constitution. For example, article VII, subsections 2(a) and (b) of the Washington Constitution permit school districts to levy additional local property taxes for up to six years to support the construction, remodeling, or modernization of school facilities, and permit levies to exceed the limit of one percent of the value of property for the purpose of making required payments of principal and interest on general obligation bonds issued for capital purposes. Further, article IX, section 3 of the state constitution establishes the common school construction fund, which includes timber revenue, rental and other revenues, and interest on the permanent school construction fund as sources of revenue. And in chapter 28A.525 RCW, the legislature established the state school construction assistance program, the express purpose of which is “establishing and providing for the operation of a program of state assistance to school districts in providing school plant facilities.”

There’s more. This is definitely an issue to watch.