McCleary, et ux., et al. v. State
MADSEN, C.J. (concurring/dissenting)—I agree with Justice Stephens’
articulation of the State’s duty to fund education under article IX, section 1 of the
Washington Constitution and the conclusion that the current system is not operating at its
constitutionally mandated levels. However, I disagree with the majority that the judiciary
should retain control over this case.
As we noted in resolving prior school funding challenges, our “traditional judicial
function” is to interpret article IX, section 1 of our state constitution and to determine
whether our state is meeting its constitutional responsibility. Seattle Sch. Dist. No. 1 v.
State, 90 Wn.2d 476, 508, 585 P.2d 71 (1978). In the current case, we have defined
“education,” “paramount,” “all,” and “ample” and ordered the State to carry out its
constitutional duty. We have done our job; now we must defer to the legislature for
Indeed, there is precedent for judicial deference to the legislature with regard to
the execution of article IX, section 1. In Seattle School District, we held that once the
constitutional ends have been defined by the courts, the means of compliance are firmly
within the realm of the legislative power. Id. at 520 (“[w]hile the Legislature must act
pursuant to the constitutional mandate to discharge its duty, the general authority to select
the means of discharging that duty should be left to the Legislature”). We described the
trial court’s decision to retain jurisdiction in that case as “inconsistent” with the
assumption that the legislature, as a sworn “constitutional body, would comply with the
constitutional mandate” under article IX, section 1. Id. at 538-39. Although the majority
is ostensibly “defer[ing] to the legislature’s chosen means of discharging its article IX,
section 1 duty[,]” it has taken the extraordinary step of “retain[ing] jurisdiction over [a]
case to help facilitate progress in the State’s plan to fully implement the reforms by
2018.” Majority at 4.
The majority claims that by retaining jurisdiction, the judiciary will “facilitate
progress” within the legislative branch, but it fails to discuss how it will fulfill such a
role. Generally, in cases where a court retains jurisdiction, the court sets forth clear
benchmarks and ascertainable standards against which to measure compliance. For
example, the federal courts’ supervision of school desegregation used identifiable factors
to determine if a school district had achieved its mandate. To aid the federal district
courts in implementing their desegregation order, the United States Supreme Court
identified six factors that “are a measure of the racial identifiability of schools in a system
that is not in compliance with Brown [v. Board of Education, 347 U.S. 483, 74 S. Ct. 686,
98 L. Ed. 873 (1954)].” Freeman v. Pitts, 503 U.S. 467, 486, 112 S. Ct. 1430, 118 L. Ed.
2d 108 (1992) (citing Green v. County Sch. Bd., 391 U.S. 430, 435, 88 S. Ct. 1689, 20 L.
Ed. 2d 716 (1968)). The factors constituting specific aspects of a school system are the
assignment of students by race, physical facilities, extracurricular activities, faculty and
staff assignments, transportation, and resource allocation. See Green, 391 U.S. at 436;
Freeman, 503 U.S. at 497-98. District courts then weighed the effectiveness of a school
district’s desegregation plans under these factors and directed action to remedy specific
areas of noncompliance. See Freeman, 503 U.S. at 485.
In contrast, the majority here fails to define the desired outcomes or to provide
criteria or benchmarks against which a court, special master, or other oversight entity can
measure the legislature’s compliance. In fact, as in Seattle School District, the majority
has declined to identify specific requirements or goals, such as required deployment of
staff, student to staff ratios, or minimum employee salaries, which would objectively
indicate whether the State has complied with its constitutional duties. See majority at 7277; Seattle Sch. Dist., 90 Wn.2d at 520-21. In addition, the majority vacated the trial
court’s order to the legislature to “establish the actual cost of amply providing all
Washington children with” the constitutionally mandated education and “establish how
the Respondent State will fully fund that actual cost.” Majority at 72. Without clear,
identified goals, judicial supervision will be unhelpful, can assure no compliance, and, at
worst, will be obstructive.
But, in any event, I do not believe this court should attempt to establish goals or
benchmarks for the legislature to meet. Rather, as we held in Seattle School District, it is
the legislature’s duty to define what constitutes basic education and how to adequately
fund education at that level. Adopting specific standards or guidelines for defining and
funding basic education is a legislative responsibility; it is not a judicial function.
The sentiment behind the majority’s decision is understandable. Thirty years after
our decision in Seattle School District the legislature has failed to adequately fund basic
education. Nevertheless, the majority correctly identifies ESHB 2261 as “promising
reform.” Majority at 74. This court should exercise judicial restraint and permit the
legislature to implement the statute without the burden to confer and report to the
judiciary at every step.
I believe the majority’s largely symbolic decision disturbs the comity enjoyed
between the judiciary and the legislative branch without providing any effective guidance
to the legislature. To decline to retain jurisdiction is not an “abdication” of our
responsibility, rather, it is recognition of the limits of our institution’s role and
competency. If the legislature fails to carry out its constitutional duty as directed, this
court has the appropriate tools to compel compliance, including recalling its mandate, see
RAP 12.9, or issuing a writ of mandamus to the legislature, see, e.g., Walker v. Munro,
124 Wn.2d 402, 408, 879 P.2d 920 (1994) (“Where there is a specific, existing duty
which a state officer has violated and continues to violate, mandamus is an appropriate
remedy to compel performance.”).
In deciding the issues presented, we have met our constitutional responsibility; we
should allow the legislature to do the same. With these concerns, I respectfully concur.
Chief Justice Barbara A. Madsen
Justice James M. Johnson