Sch. Dists.' Alliance for Adequate Funding of Special Educ. v. State (concurring)
Annotate this Case
Download PDF
School Districts Alliance for Adequate Funding of Special Education v. State, et al. No. 82961-6 Stephens, J. (concurring) I concur in the result reached by the majority. Properly understood and considered as a whole, the State funding mechanism for special education satisfies the mandate of article IX, section 1 of the Washington Constitution. Given the majority s analysis of the statutory scheme and the limited evidence offered by the petitioners, the entire discussion of the beyond a reasonable doubt standard is unnecessary and distracting. The majority holds: Beyond a reasonable doubt in this context merely means that based on our respect for the legislature, we will not strike a duly enacted statute unless we are fully convinced, after a searching legal analysis, that the statute violates the constitution. Majority at 8 (quoting Island County v. State, 135 Wn.2d 141, 147, 955 P.2d 377 (1998)). I take the majority at its word. To the extent the concurrence and dissent criticize use of the beyond a reasonable doubt standard as a constitutional burden or level of scrutiny, such criticism overstates the majority s holding. Recognizing the Sch. Dists. Alliance for Adequate Funding of Special Educ. v. State, et al., 82961-6 (Stephens, J. Concurrence) importance of deference to the legislature in this context no more defines the level of scrutiny than, for example, when we recognize deference to a statute affecting speech rights, yet apply a level of exacting scrutiny that requires a compelling justification to uphold the statute. See State ex rel. Wash. State Pub. Disclosure Comm n v. Wash. Educ. Ass n, 156 Wn.2d 543, 130 P.3d 352 (2006), abrogated by Davenport v. Wash. Educ. Ass n, 551 U.S. 177, 127 S. Ct. 2372, 168 L. Ed. 2d 71 (2007). The debate between the majority and the dissent and concurrence nonetheless highlights what has been described as the elephant in the room. See generally Scott R. Bauries, Is There an Elephant in the Room?: Judicial Review of Educational Adequacy and the Separation of Powers in State Constitutions, 61 Ala. L. Rev. 701 (2010). There is an inherent tension between the court s duty to construe our state constitution, on the one hand, and appropriate deference to legislative policy-making, on the other. This tension is especially palpable in the education context because article IX expresses an affirmative obligation of the State that we have recognized corresponds to a positive right held by school children. Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 510-14, 585 P.2d 71 (1978). We observed in Seattle School District that [b]y imposing upon the State a paramount duty to make ample provision for the education of all children residing within the State s borders, the constitution has created a duty that is supreme, preeminent or dominant. Flowing from this constitutionally imposed duty is its jural correlative, a correspondent right permitting control of another s -2- Sch. Dists. Alliance for Adequate Funding of Special Educ. v. State, et al., 82961-6 (Stephens, J. Concurrence) conduct. Id. at 511-12 (footnotes omitted). The unique stature of the positive right under article IX should cause us to look carefully before repeating general precepts of constitutional interpretation from other contexts. In the typical case in which legislation is challenged on constitutional grounds, the question is whether the legislature has overstepped the bounds of its authority or impermissibly encroached on a recognized individual liberty. See, e.g., Island County, 135 Wn.2d 141 (holding statute authorizing creation of community councils in certain counties was unconstitutional special law ). In contrast, protection of a positive or true right, Seattle Sch. Dist., 90 Wn.2d at 513 n.13, may require judicial enforcement of an affirmative obligation of the State, with a view toward whether a challenged law achieves, or is at least likely to achieve, the constitutionally prescribed end . . . . Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1137 (1999). This follows from the recognition that state constitutions are more than a set of negative restraints on governmental power. Provisions such as article IX declare and serve important normative goals. I offer these observations to emphasize that we make no decision today about the proper constitutional lens through which to examine positive rights, generally, or the mandate of article IX in particular. The fundamental difference between such rights and other, negative rights or liberties is something we touched upon in Seattle -3- Sch. Dists. Alliance for Adequate Funding of Special Educ. v. State, et al., 82961-6 (Stephens, J. Concurrence) School District and have not returned to since. It raises important questions that must be considered, but that consideration awaits another day. AUTHOR: Justice Debra L. Stephens WE CONCUR: Justice Mary E. Fairhurst -4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
