AG warns high court of “slippery slope” on public education

OLYMPIA — The Washington Supreme Court should not go down a “slippery slope” and punish the Legislature because it didn’t come up with a complete plan to improve public schools, the state attorney general’s office said.

Although public education is the state’s “paramount” duty, it is not the only duty, and the Legislature still has to pay for programs for public health, safety and welfare, Attorney General Bob Ferguson and a group of senior assistants said this week in their last written argument before all sides in the case appear before the state’s highest court next Wednesday.

“It is not appropriate for the court to hold the state in contempt because the Legislature did not pass a bill or resolution,” they argued. “Holding the state in contempt for failing to legislate is a slippery slope.”

The attorneys filed a final argument for the Legislature in the case commonly referred to as McCleary, the name of one set of parents who sued the state for failing to provide adequate money for public schools. In a landmark decision in 2012, the state’s highest court agreed and ordered the Legislature come up with a plan to meet its “paramount” constitutional duty by the 2017-18 school year, something that by some estimates could cost more than $4 billion.

After two special sessions in 2013, the Legislature did add about $1 billion to education for the two-year-budget that started that fall. This January, the court said it wanted a plan on how the Legislature would handle the rest of the job. But with Democrats firmly in control of the House and a predominantly Republican coalition in charge of the Senate, legislators couldn’t agree to the next round of changes, and essentially told the court that in April.

The coalition of families, community groups and education organizations who won the earlier ruling asked the court to find the Legislature in contempt and impose some sanctions that were threatened when the orders first came down — which could include the justices taking over the budget process. The court ordered all sides to show up Sept. 3 to make their best case on why sanctions should or should not be handed out to the Legislature.

The prospect of the court sanctioning the Legislature or dictating terms on how much the state should budget for education has legislators and legal scholars warning about a separation of powers conflict, which state attorneys highlighted in their brief.

The Legislature, they said, “is a coequal branch of government … and it possesses some powers beyond the court’s authority to command.” Among those are the power to levy taxes and decide how that money is spent, decisions which the court is “not equipped” to make, they said.

Even though the Legislature didn’t come up with a plan, the January order did set the stage for the next big chance to make real progress next year, attorneys argued: “The true measure of progress will be the actions the Legislature takes in the 2015 session.”