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McCleary et al. v. State of Washington serves as a landmark case for education policy in Washington State. In McCleary, the Washington State Supreme Court found that the Washington State Legislature had failed to fully fund basic education as constitutionally required. In the ruling, the Court imposed sanctions upon the Legislature until it increased funding far enough to bring the state into compliance. McCleary remains pertinent to Washington because of its direct impact on education funding. For those outside the state, it also serves as a case study of positive constitutional rights, defined as rights requiring government intervention rather than government noninterference, which are common in state constitutions throughout the country. This article discusses the history leading to the McCleary decision and its immediate aftermath and uses the case as a lens to examine the broader issue of positive constitutional rights and what they mean for separation of powers within state governments.
The McCleary ruling was based upon Article IX of the Washington State Constitution, which focuses solely upon education. The preamble of Article IX states that “[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders.” Establishing education as the state’s “paramount duty” creates a constitutional mandate for the state to support education. However, the State Constitution provides little specific instruction on what “ample provision” looks like beyond Section 2 of Article IX requiring that the government “provide for a general and uniform system of public schools.” The results of this ambiguity were multiple pieces of litigation, eventually leading to McCleary. One of those cases was Seattle School Dist. v. State, a case concerning the overuse of local levies to fund education in the state and whether that overuse meant Washington State had failed in its obligation to provide for basic education. The finding of Seattle School District was that the state had failed to provide enough funding for basic education to avoid localities relying on levies to fund it. While the Court’s opinion allowed levies for funding enrichment beyond basic education, it required regular and dependable revenue sources be used for funding basic education. Seattle School District served as a key precedent for McCleary because it established that the preamble of Article IX and Sections 1 and 2 create an enforceable duty of the state. To define that duty, the Legislature passed the Basic Education Act of 1977. The Act defined basic education through establishing minimum amounts of time for students to spend in school per year and minimum ratios of staff to students. It also created rules for establishing a specific formula for determining whether basic education is properly funded in each of Washington’s school districts. The Basic Education Act and subsequent legislation on basic education served as the basis for determining the details of fully funding basic education for McCleary.
McCleary itself is based upon the enforceable duty of Article IX and concerns the overall funding adequacy of K-12 education in Washington rather than any specific element of it. The petition for declaratory judgment that led to the McCleary decision asked four questions that outline the central components of the case. The first two concerned the correct interpretation of the words “paramount,” “ample,” “all,” and “education” in Article IX of the State Constitution. The second two concerned whether Washington State was currently complying with Article IX, and if not, what the Court should do to compel the State to uphold its constitutional duty. In the Court’s process of answering the first two questions, “paramount” and “all” were interpreted in ways analogous to their colloquial definitions and “ample” was interpreted to mean “considerably more than just adequate.” Most importantly, the interpretation of “education” was based on previous legislation and jurisprudence. The answers to the first two questions were necessary to determine what compliance with Article IX of the State Constitution looked like. The answers to the second two questions caused McCleary to find that the state was failing in its paramount duty to provide basic education under the guidelines set by the Legislature. As a penalty for the Legislature’s failure to meet the education funding requirements of McCleary it was fined $100,000 a day with the money redirected to an account that could only be spent on basic education. The Court also set a September 1, 2018 deadline for the state to comply with the McCleary decision. During the 2018 Legislative Session, the Legislature passed sufficient education funding for the Washington State Supreme Court to find that the state had met its minimal obligation to public education.
The Court’s opinion in McCleary is based upon the positive constitutional right to an amply funded education. Examining the issue of positive constitutional rights requires first defining what a positive constitutional right, and positive rights in general, are. Rather than requiring that the government simply not interfere with an action that individuals are already engaging in (an example of which would be freedom of speech or the rest of the federal Bill of Rights), positive rights require proactive government action in order to be fulfilled. In this example, McCleary, the Legislature is responsible for determining the amount of money dedicated by the State to education. In general, the judiciary is responsible for ensuring that the other branches of government uphold their constitutional duty. However, doing so overzealously would create a crisis of separation of powers in which the judiciary interferes with the other branches’ abilities to make their own decisions about the state’s funding priorities. This dilemma creates a narrow line for judicial branches to walk. Positive constitutional rights create a unique issue for separation of powers because they allow the judicial branch to commandeer the legislative process in the process of enforcing those rights. In other words, positive constitutional rights can be problematic because they move key aspects of setting policy that are entrusted to one branch of the government to another as seen for Washington’s education policy in McCleary.
This concern is not new to the history of Washington State’s positive right to basic education. The Court’s opinion in Seattle School District explicitly addressed this issue of separation of powers when the judiciary is enforcing a positive constitutional right. As would be expected in a case where the court chose to intervene to require education funding, the Seattle School District Court found that there was no separation of powers issue. To summarize the argument used in the case, judicial branches in the United States have had the duty to interpret and enforce Constitutions from Marbury v. Madison to the present. Therefore, the Seattle School District Court and the McCleary Court are simply following their duty to uphold the Constitution of the State of Washington, specifically Article IX, rather than choosing to legislate from the bench. However, that is not a completely satisfactory explanation. The judiciary is still required to decide whether the legislature has met the criteria it laid out. As a consequence of courts making that decision, the judiciary is wading into budgetary policy. That is a field it is not typically involved in and is poorly equipped to handle. Without sufficient judicial restraint the consequences of enforcing positive rights for both public policy and separation of powers would be severe. However, this issue is avoided in the McCleary Decision. The McCleary Court based its definition of basic education upon definitions provided by the Legislature, which resolves the issue of separation of powers because the Legislature made the decision about what fully funding education means. The Court is simply compelling the Legislature to fully fund its own definition of education, calling balls and strikes rather than rewriting the rules of the game. Washington’s Judicial Branch did require that Washington State meet fiscal obligations in the neighborhood of ten billion dollars annually. However, in this specific case, the Court did so in accordance with the Legislature’s own work defining basic education and therefore its exact level of fiscal obligation. All the Court did was to enforce the Legislature’s existing rules under the terms of the state constitution. Moving beyond the specific issue of public education in Washington State, McCleary illustrates the potential risks of positive constitutional rights even though it is not an example of a well-intentioned positive right setting off a crisis. For an example of what such a crisis might look like, imagine an alternate reality where the specifics of Washington’s “paramount duty” were written into the constitution rather than by the Legislature in a venue that can easily be amended by it. In such a world, the other branches would be completely beholden to the Judiciary’s interpretation of that section of the Constitution, creating a scenario in which the Legislature has little policy autonomy despite its intended policymaking role. However, that crisis only arises when the Constitution of a state allows for it, which can be avoided through care in the process of drafting and amending constitutions. In the words of the Seattle School District Court, “it is a proper function of the judiciary to interpret, construe and enforce the constitution of the State of Washington.” As the Judicial Branch has unilateral power over constitutional interpretation, public policy entrenched within State Constitutions exists outside the normal system of separation of powers and checks and balances. Rather than hoping for judicial restraint in the future, it is best that anyone in Washington or elsewhere drafting or amending a constitution keep that in mind when deciding which positive rights, if any, to include.