Portside Date: September 13, 2015

Author: Jen Graves

Date of source: September 10, 2015

The Stranger

There was a small detail you could easily have missed in my post Tuesday on the context of the Seattle school employees' union strike.

It was something I noticed in a Slate story from earlier this summer about our situation here in Washington, and it bears repeating: "When, in 1976, New Jersey was in a similar situation [to Washington], the Supreme Court shut down the schools for eight days. The fruits of that conflict remain with New Jerseyites to this day, for the need to fund schools more fairly is what led New Jersey in 1976 to adopt a state income tax for the first time."

It made me wonder the following things.

1. Does the Washington State Supreme Court have the authority to shut down schools across the state right now?

2. Is that story about New Jersey really true? Did New Jersey pass the state's first-ever (and enduring) income tax because it had no other way to get its schools up and running after its Supreme Court put its foot down?

3. Has the income tax solved the problem of chronic school underfunding in New Jersey?

4. If the answer to all those questions is yes, then why isn't the Washington State Supreme Court shutting down our schools to force the hand of the Governor and Legislature right now?

I made a few calls, and guess what? The answer to those first three questions is pretty much yes.

Let me tell you what I found, because it could provide hope or at least insight as you're wondering just how long this teachers' strike is going to last, and what all of us can accomplish.

Michael Rebell is not an advocate or activist. He is a scholar. He's co-authored books including Courts and Kids: Pursuing Educational Equity Through the State Courts, and he teaches law and serves as executive director of the Campaign for Educational Equity at Teachers College, Columbia University. But he's spending this year as a fellow at the Edmond J. Safra Center for Ethics at Harvard, so I called him there.

Rebell took me back to 1976 New Jersey.

It was a major political issue of the time that New Jersey didn't have a state income tax, he said. (Today, only seven states don't have state income tax, including Washington, and here, it's the chief reason our government can reasonably claim it has no money for, say, education.)

In the early 1970s, politicians in New Jersey got elected by promising they'd never approve a state income tax. New Jerseyans took pride in not having an income tax.

But in a display of our basic American system of checks and balances between the three branches of government, the New Jersey Supreme Court did not particularly care about the priorities of the elected officials in the State Legislature.

The New Jersey Supreme Court had already ruled the state was out of compliance with the state constitution—any state's ultimate guiding legal document—in the way it funded education. The court had also demanded a plan and a way to pay for it. Sounding familiar?

Then, New Jersey's State Legislature provided a plan... but no funding. Sounding very familiar?

A year after the plans-but-no-funding debacle, the Supreme Court used what is referred to in certain education law circles as "the atomic option."

On July 1, 1976, the court shut down every school in the state of New Jersey.

Wait, July?

"They said, 'So long as the school system is unconstitutional and you're not fixing it, we're going to shut it down, and say it's unconstitutional to spend any money on a school system that's illegal,'" Rebell told me. "They were very savvy. They did this in the summer. The message was, there aren't that many kids in summer schools, but if we can close the schools in July, we can keep them closed in September. So the legislature met in August, and once the parents saw the schools might not open, they put a lot of pressure on the legislature, and that's how it happened."

To recap the levers pulled here: Court rules State unconstitutional, then orders action from Legislature, the only branch that can dole out the State's money. Legislature stalls. Governor—that third branch, the executive—does nothing. Court closes school—in summer, providing only a threat, really, but a tangible threat, and enough of one to freak out parents and provoke the Governor to call a special session of the Legislature, which then decided, well, there's simply no way to get that kind of money without an income tax.

Hence, New Jersey had a new source for funding its schools.

But could it be that simple? Did that solve everything?

Getting New Jersey schools equitably funded hasn't been fast, Rebell said.

But the court has been steadfast, and the results are better than in most states. So pretty much, yes, it worked.

"New Jersey’s had a long history of litigation in this area—plaintiffs have been back and forth to the court two dozen times or something," Rebell said. "But each time, they’ve gotten much more money for the poor urban areas that were the subject of their case, and right now Newark and these other 28 or so urban districts are probably the highest-spending school districts in the state.

"In other words, the poor urban districts [in New Jersey] spend more per capita than most of the affluent districts in New Jersey, which is the opposite of how it works in most states. And that’s all because of the court pressure, and the court being resolute. At one point, they decided they needed preschool, so they ordered totally free, at-state-expense preschool for all low-income kids. Those are in place. Those are not cheap. Those are high-quality programs."

Once again: New Jersey spends more on kids of all ages who have less and need more, and those same New Jersey kids go to preschool on New Jersey's dime.

And that's all thanks to the muscle of the New Jersey Supreme Court—starting with that first school shutdown.

Is Washington in the same situation? Yes.

Can the Washington Supreme Court shut down the schools? Yes.

Rebell: "So I would say it’s true that $100,000 a day"—the fine the Washington Supreme Court has been charging the State since August and until school funding is in compliance with the State Constitution—"doesn’t amount to much given the size of the Washington state education budget, and in fact, the way the court phrased it, that money is going to the school system anyway so ultimately the school system is getting a down payment on what’s to come. The plaintiffs did call for stronger action… If [the Legislature doesn't] get it done, I would expect the plaintiffs would go back and ask for stronger sanctions. You ought to talk to the plaintiffs’ attorney."

I definitely ought to.

That's Bainbridge Island lawyer Thomas A. Ahearne, who represented the plaintiffs—the McClearys—in the landmark "McCleary" case. This is the case that led to the Supreme Court ruling, in 2012, that our state funding system is so broken, it's unconstitutional.

I put the questions to Ahearne. What will the McCleary plaintiffs do next? And does the pressure point of the Seattle strike help motivate them at all?

"We don't have any plans right this second," Ahearne told me, explaining that you have to be summoned to the Supreme Court—you don't just show up and order them around.

Ahearne has two kids who attend/ed public schools, on Bainbridge. He has a habit of calling the Supreme Court "the Supremes."

Here's what Ahearne predicts will happen.

"I think the Supremes are going to give the Governor and the Legislature a couple months to do what they’re going to do," he said. "My guess is they’re not going to do anything, and the Supremes will ask both sides [the plaintiffs in McCleary and the State] to submit something to the court saying, 'So, how’s it going?' and our response will be that it’s going nowhere, and the court should impose the heavy sanctions like the ones you saw with the New Jersey Supreme Court."

Ahearne mentioned the case of Pasco, Washington, where the teachers have been on strike for nearly a week, and a court ordered them to stop striking—but declined to enforce penalties.

Ahearne is watching Pasco for developing precedent, and he'll also watch closely to see what happens with Seattle School Superintendent Larry Nyland's intention to file suit against the Seattle teachers' union despite formerly seeming to be united with the union against the State, as Ansel wrote here on Slog yesterday.

There are examples to look to in other states, too, both Rebell and Ahearne said.

In Arizona, Kansas, New Jersey, and Ohio, Ahearne explained, "I'm oversimplifying...but the Supremes said you've got to fully fund [education], Legislature said we'll get around to it, Supremes said we really mean it, Legislature said we're working on it"—in other words, exactly what's happening in Washington—and in Arizona, Kansas, and New Jersey, school closures or the mere threat of school closures motivated the Legislatures finally to act. In Ohio, a change in the bench, a stubborn Legislature, and a conservative governor meant that the Court backed down, Ahearne said.

But in the other three states where education did get funded, "when the Supremes put their foot down, there were years of the Supremes warning the Legislature first. My guess is at the end of this year or early next year, our Supremes are going to say we’ve been warning you for years and years and years. The next few months are going to determine whether the Supremes will put their foot down and be like Arizona, New Jersey, and Kansas, or wimp out and be like Ohio. And I don’t know which way it’s gonna go."

Washington does not have a conservative governor. Where ya at, Jay?

One thing working in schools' favor in Washington is the unusual strength of the Washington Constitution in spelling out that education is "the paramount duty"—the, not a paramount duty—of the state.

In other words, our state's constitution says that nothing else should be funded if schools are not.

"A lot of states have education clauses in their constitution; none is as strong as Washington’s," Ahearne said.

So what do we do now? Wait and see? What about the strikers? What about their students?

Ahearne's advice to fellow parents of public-school students:

1. Support the strike.

2. Take that support further, and appreciate and respect and thank teachers more. They deserve it.

3. "Goddamnit, get the legislators to start amply funding the schools."

Parents, get your freakout on. While supporting the strikers, don't support the idea that our kids should be out of school. This is a very good exercise in civic engagement education, and it's terrific that we're talking to our kids about this. But we need to talk, too, and angrily, to those who can make change happen: Elected politicians.

Even if all parents of public-school children voted in Washington, they'd still be a vast minority, Ahearne told me. But the right to an education is, as some have pointed out, a civil rights battle. The people whose rights you're fighting for in this case? The kids? Not one of them can vote, so this is going to be up to the rest of all of us.