CONSTITUTIONALITY OF PUBLIC SCHOOL FUNDING SYSTEM

SCHOOLS ‑- DISTRICTS ‑- FUNDING ‑- CONSTITUTIONALITY OF PUBLIC SCHOOL FUNDING SYSTEM

Description of public school financing system in existence at the time of commencement of Northshore School District No. 417 v. Kinnear, 84 Wn.2d 685 (1974); resume of supreme court's decision regarding constitutionality of said system; identification of subsequent legislative changes; evaluation of probable thrust of any future litigation; listing of constitutionally valid alternative approaches to school financing.

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                                                                    April 9, 1975

Honorable Daniel J. Evans
Governor, State of Washington
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 39

RE:  Northshore School District No. 417v. Kinnear, 84 Wn.2d 685 (1974).

Dear Governor Evans:

            This is written in response to your recent request for our analysis and explanation of the above‑entitled case and for an outline of the likely thrust of any future court challenges to this state's present school financing system.  With regard to the latter, you have also asked for an indication of the kinds of legislative action that might be taken in order to lessen the possibility of such a challenge or to strengthen the state's defenses against it.

                                                                     ANALYSIS

            I. Introduction:

            Northshore School District No. 417 v. Kinnear, supra, was an action by that school district and others to test the constitutionality of the method of financing public education at the kindergarten through twelfth grade levels (K-12) which existed in this state when the lawsuit was commenced in early 1972.  Although filed as an original action in the state supreme court, the case was first referred to the Thurston county superior court for a determination of the relevant facts ‑ following which it was argued to the supreme court, sittingenbanc, in June of 1973.  The court's decision itself was not then handed down until December 16, 1974, after which a petition for rehearing was requested, but denied on March 20, 1975.

            In a narrow and strictly legal sense the court's decision, in the form of 6-3 plurality set of rulings finding the system of school financing which was before the court not to be unconstitutional, means that the legislature is not now under any court mandate to develop a new school financing plan.  However, it is to be noted  [[Orig. Op. Page 2]] that one of the members of the majority was aprotempore justice who will not necessarily be involved if the question should come before the court again in the future, and another, the then chief justice who authored the main opinion, has since retired.  Moreover, two other members of the "majority" actually declined to sign that opinion and, instead, apparently voted as they did solely because of what they regarded as a failure by the plaintiffs to sustain their "burden of proof" as to the unconstitutionality or inadequacy of the financing system which they had challenged.  Therefore, it is readily to be seen that the decision which the court has reached is not one which stands on particularly solid ground ‑ as already evidenced by the fact that the petition for rehearing above noted was denied by only a five to four vote.

            But beyond this, and the resultant possibility of a reversal in principle if the questions involved should be relitigated in the future,1/ there is the obvious fact that a finding ofconstitutionality of a particular system of school financing is not necessarily to be equated with a finding of its desirability.  Witness, for example, the numerous recent newspaper editorials in which this precise message has been delivered in one form or another.

            To some extent, the legislature has already reacted positively to these demands for reform in the area of school financing.  By its passage of chapter 195, Laws of 1973, 1st Ex. Sess., while the Northshore case was still pending, it took the significant step of eliminating regular property tax levies by local school districts and substituting a single annual state‑wide property tax levy by the state itself for the support of the public schools.  Thus, as we will note further, the only property taxes now levied at the local level by school districts are voter approved special levies imposed pursuant to the one percent (formerly 40 mill) limit provision of our state constitution, Article VII, § 2.  Nevertheless, as long as most school districts continue to find it necessary to rely on those special levies on a regular basis in order to fund a significant part of their annual maintenance and operation costs, the inequities and related problems upon which the plaintiffs in Northshore based their case will continue,  [[Orig. Op. Page 3]] to some degree, to exist.  And even if those factors do not cause the system to be found unconstitutional, they still merit the serious attention of the legislature in an attempt to find a "better way."  After all, the mere fact that the legislature may not be compelled by the constitution to improve upon the existing situation does not mean that its members have no responsibility, as policy makers, to attempt to do so.

            With this observation, we would propose now to take you, step by step, through an analysis of theNorthshore case itself.  Following that, we will indicate the changes in law which have already occurred since the case was commenced ‑ and then conclude with a description of the likely thrust of any future litigation followed by a discussion of the kinds of additional legislative action that, if taken, would further reduce both the legal and political vulnerability of the school financing system as it now exists.  It is hoped that this presentation will be of some assistance both to you and to the legislature during the remainder of its current deliberations on this most important subject.

            II.  Main Sources of School District Funds at Time the Northshore School District Case was Commenced:

            At the time of commencement of the Northshore School District case in 1972, the sources of school district funds were:

            (1) Local school district "regular" property taxes; i.e., taxes authorized to be imposed within constitutional limitations not requiring voter approval.

            (2) Local school district special levies.

            (3) Revenues from the real estate excise tax under chapter 28A.45 RCW.

            (4)  Other local income (e.g., lunchroom revenues).

            (5) State apportionment funds distributable under RCW 28A.41.130, et seq., and

            (6) Federal funds.

             [[Orig. Op. Page 4]]   By reason of this system of financing, the reported proportions of school funding, in terms of sources, for the most recent school year (1970-71) completed prior to the commencement of the suit were as follows:2/

            Federal funds............................  7.3%
            State funds.............................. 49.0%
            Local property funds, including special levies.......................... 36.1%
            County real estate excise tax............ 2.5%
            Other local funds........................ 5.1%

            III.Arguments Made Against the Constitutionality of This System of School Financing:

            The basic arguments made against the constitutionality of the above outlined system of school financing by the petitioners in the Northshore School case were:

            (1) That to the extent the system involved a substantial dependency upon local property taxes, it unconstitutionally discriminated against students residing in school districts with low assessed valuations, in violation of the equal protection clauses of the state and federal constitutions, because a given rate of taxation produced fewer dollars in those districts than it did in districts with higher assessed valuations.

            (2) Likewise, that such dependency upon local property taxes discriminated against taxpayers in school districts with lower assessed valuations because those low valuations compelled such taxpayers to pay a higher rate of taxes to raise the same amount of money than did taxpayers in districts with higher assessed valuations.

            (3) That overall, the then existing system, being overly dependent upon local property taxes, represented a failure upon the part of the state to make ample provision for the education of all children within its borders as required by Article IX, § 1 of the Washington constitution.3/

             [[Orig. Op. Page 5]]   (4) That for the same reason, the state had failed to provide a general and uniform system of public schools as prescribed by Article IX, § 2.

            IV.Supreme Court's Response to the Above Arguments:

            A total of five separate opinions were written by various members of the supreme court in responding to these contentions.

                        *

            The basic response of the main "majority" opinion written by then Chief Justice Hale, and signed by Justices Hunter and Hamilton, was as follows:

            (1) Petitioners failed to prove that assessed valuation of property in a school district affects or is determinative of the quality of education which that district provides.

            (2) Petitioners' equal protection arguments are foreclosed by the United States Supreme Court's decision inSan Antonio School District v. Rodriguez, 411 U.S. 1, 36 L. ed [[L.Ed.]]2d 16, 93 S.Ct. 1278 (1973), in which that court (during the pendency of the instant case) upheld a school financing system from the state of Texas which, in most respects, was the same as Washington's.

            (3) What constitutes "ample provision" for education, within the meaning of Article IX, § 1 of the Washington constitution, is to be decided by the legislature and the state superintendent of public instruction, not by the courts.

            (4) Article IX, § 2 of the Washington constitution does not require exact equality of funding per child as between school districts.

                        **

            In a concurring opinion by Justice Rosellini, signed by Justice Wright, agreement was expressed with the result reached in the Chief Justice's opinion because of the lack of any showing by the petitioners of ". . . any constitutional ground for invalidating the system of financing public education in this state . . ."  However, this concurring opinion then went on, briefly, to indicate that in the judgment of its writer, the state's contribution under the system in effect in 1973 was inadequate, although that inadequacy was not clearly disclosed by the record which was actually before the court.

             [[Orig. Op. Page 6]]               ***

            Likewise, in a separate concurring opinion Justice pro tem Weaver indicated agreement with the result reached by the Chief Justice's opinion, stating that "petitioners have not established their case" that the system of school financing under review was unconstitutional.

                        ****

            Disagreeing with this total of six judges who voted to reject the petitioners' complaint against the school financing system in question were Justices Stafford, Finley and Utter.  The principal thrust of the main dissenting opinion, written by Justice Stafford and signed by the other two, was as follows:

            (1) Although theRodriguez case, relied upon by the majority, is determinative of whether or not the equal protection clause of the 14th Amendment to the United States Constitution was violated by Washington's system of financing public schools, it is not determinative with respect to Article I, § 12 or Article IX, § 1 of the state constitution.

            (2) The system of financing, as it existed in 1972, failed to fulfill the "paramount duty" of the state, under Article IX, § 1, to make provision for an ample system of education which, under Article IX, § 2, is to be uniformly available throughout the state.

                        *****

            In a separate concurring opinion, Justice Utter also took exception to Justice Rosellini's concern with the adequacy of the record.  Justice Utter indicated that, in his judgment, the record did disclose the fact that the state funded portion of the school financing system was inadequate, by itself, for the operation of an ample program of public education.

            V.Changes in Law Since Commencement of Northshore School District Case:

            Although not noted or discussed by the court in its decision, the system of financing public schools which was at issue in the Northshore case was somewhat modified by the legislature after the case was commenced but before it was finally decided.

            RCW 84.52.043, as amended by § 134, chapter 195, Laws of 1973, 1st Ex. Sess., and RCW 82.52.065, as amended by § 106 of the same act, now provide that the state (and not each local school district) is to levy all "regular" property taxes for  [[Orig. Op. Page 7]] school support.  This change is first effective with respect to 1974 levies for collection in 1975.  Thus, a current listing of the principal sources of school district funds (to be contrasted with that set forth above with respect to 1970-71) is as follows:

            (1) State apportionment funds distributable under RCW 28A.41.130, et seq., including all proceeds of a "regular" state property tax for the support of schools;

            (2) Local school district special levies;

            (3)  Revenues from the real estate excise tax under chapter 28A.45 RCW;

            (4) Other local revenues; and

            (5) Federal funds.

            In terms of sources, it is projected that the approximate proportions of school funding for the first complete school year (1975-76) following full implementation of this change will be:

            Federal funds ................................  8%
            State funds (including property tax revenues). 60%
            Local property taxes (special levies only).... 28%
            County real estate excise tax.................  3%
            Other local revenues..........................  1%

            VI.Likely Thrust of Future Court Challenge:

            One apparent reason for the problems which the court had with the factual record in theNorthshore case is that this record was compiled in the trial court prior to the United States Supreme Court's decision in Rodriguez.  Accordingly, it was keyed to a considerably greater degree to the federal and state "equal protection" clauses than it was to the "ample provision" clause of Article IX, § 1, of the state constitution,supra.

            With the equal protection issues now having been largely laid to rest by theRodriguez decision, it seems probable that any future lawsuits challenging the current funding system, as modified by chapter 195, Laws of 1973, Ex. Sess.,supra, will  [[Orig. Op. Page 8]] be aimed more squarely at the single question of whether the system as it now exists is "ample."

            It appears doubtful to us that even the dissenters in the Northshore case would require the state to assume responsibility for the funding ofall local school district expenditures ‑ to the exclusion of any local funding through excess levies for any portion of the operational or capital outlay costs of a local school district.  On the other hand, if special levies were repeatedly proven to be necessary year in and year out, in order for a school district to defray the costs of an "ample" education for all of its pupils, we would expect the dissenters ‑ and even, probable, concurring Justices Rosellini and Wright ‑ to hold such a system to be unconstitutional under Article IX, § 1.  The only problem would be that of establishing a universally acceptable criteria as to what constitutes an "ample" education ‑ as opposed to something greater.

            VII.Conclusions and Recommendations:

            These general observations regarding the thrust of future litigation lead us into the final segment of this letter by which we will attempt to outline the various avenues for action that are now open to the legislature.  Our discussion will be divided into two parts, the first dealing with the lingering but now considerably less significant problem, legally speaking, of "equal protection" and the second with the question of how to insure some form of defensible compliance with the "ample provision" requirement of Article IX, § 1,supra, which, here repeated for ease of reference, states that:

            "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."

            A.Equal Protection.

            To the extent that any form of local property taxation is retained as a part of the school financing system, the possibility of an equal protection objection will continue to exist, at least in theory, so long as average values of taxable property differ as between school districts.  While theRodriguez case is probably now a sufficient legal answer to any such challenge, there is one area of possible legislative action also worth noting as a means of further bolstering the state's defenses against it.  We have reference to a concept relating,  [[Orig. Op. Page 9]] particularly, to excess levies which has come to be referred to as "power equalization".

            In its purest and most absolute form, this approach would probably require a state constitutional amendment for it would involve a transfer of locally generated property taxes from the so-called "rich" school districts (i.e., those with high assessed valuations)4/ to the "poorer" ones.  The idea would be to guarantee that a given levy rate would produce the same number of dollars per student in all school districts; and this would be achieved by requiring all districts in which an excess levy at that rate producesmore than this number of dollars per pupil to pay the additional amounts thus realized to the state.  Then the moneys thus received would be used to fund the state's guarantee to those districts in which that same levy rate produces a dollar per pupil amount less than the norm.

            A constitutional amendment would seemingly be required in order to provide for such a program for the reason that this approach to school financing, at the present time, would be in probable conflict with the provisions of Article VII, § 2 of our state constitution, as amended ‑ the "one percent" property tax limitation provision.  Under this constitutional provision, each taxing district imposing an excess levy is clearly entitled to retain all of the proceeds derived by that levy.

            On the other hand, there is a modified form of "power equalization" which, in our judgment, could be accomplished by the legislature through the mere passage of a statute.  In fact, we note that there are currently at least three bills pending before the legislature which, if enacted, would establish just such a program.  We have reference to House Bills 153 and 610 and Senate Bill 2409.  The latter two are identical, and read, in material part, as follows:

            "Notwithstanding any other provision of law, effective for any excess levies collectible for school district general fund purposes after January 1, 1977, each school district so authorized by the voters thereof to levy such excess levy for any given year pursuant to chapter 84.52 RCW shall be guaranteed from school funds appropriated for the purposes of  [[Orig. Op. Page 10]] this chapter for such year any additional amount necessary to assure the dollar per pupil yield per dollar levied per thousand dollars of assessed valuation from such excess levy and from such additional funds as in this section provided will equal the average dollar per pupil yield per dollar levied per thousand dollars of assessed valuation for all school districts within the state for such year:  PROVIDED, That nothing in this section shall guarantee additional funds because of any such excess levy greater than seven dollars per thousand dollars so levied."

            House Bill 153 is also identical to the above except that it does not contain the same proviso at the end of the proposed statute.  Under the approach of these bills, the "rich" districts would not be called upon to subsidize the operations of "poor" districts but, instead, the guaranteed dollar level of special assessment revenues would be funded by the state from its own revenues ‑ whatever they might be.

            B.Ample Provision.

            However, while this concept of "power equalization" may be said to possess a certain attraction insofar as any remaining equal protection problems are concerned, it is basically irrelevant to the now more pressing problem of insuring compliance with the "ample provision" clause of Article IX, § 1,supra.  It is one thing to say that school districts may continue to be allowed to use excess levies to fund "extras" ‑ programs or facilities above the level of a basic education.  It may be another, however, to require them to rely on this unstable revenue source in order to fund their essential educational programs ‑ programs which could not be eliminated without significantly impairing the quality of basic education afforded.  Therefore, so long as this situation continues to exist the possibility of a renewed, and this time successful, court challenge remains present.

            Two basic questions thus must be answered.  In simplest terms, they are:

            (1) What is "ample"?

            (2) How is such a system of education to be funded?

            From a legal standpoint the first of these two questions is the more difficult one.  The problem, as we said  [[Orig. Op. Page 11]] earlier, is that of establishing a universally acceptable criteria as to what constitutes an ample education ‑ as opposed to something greater.

            The Chief Justice's lead opinion in Northshore said that this is not a judicial question but rather one for the legislature and the state superintendent of public instruction.  However, the three dissenters disagreed, as did Justices Rosellini and Wright also ‑ although the latter two were of the opinion that the plaintiffs had failed to prove that the state's contribution under the then existing system of financing did not meet this standard.  Thus, a majority of the court are of the opinion that the court can adjudicate the state's compliance or noncompliance with Article IX, § 1,supra.  Nevertheless, until it has done so in a specific case and has thereby established meaningful guidelines for future reference, the question of whether or not a particular funding system meets this constitutional mandate will be most difficult to answer.

            Perhaps the only practical reference point we can suggest at this time is a quantitative one related to the level of funding necessary to maintain the kinds of educational programs now offered by those school districts which have, over the years, generally succeeded in obtaining voter approval of their annual special levies for maintenance and operations.  What we would suggest, simply, is that if a system of funding were to be established which would make that level of funding available to all districts without resort to special levies, the court would most likely find the system to be acceptable.

            The second question ‑ that of how to do this ‑ is less of a legal question than a practical, political, one to be answered by the legislature or, if necessary, the people through approval or disapproval of a referendum bill or, if it is desired to open up new sources of revenue not presently available under the existing constitution, a constitutional amendment.5/ The basic choice to be made is one between:

            (a) A realignment of state priorities, with no tax increase ‑ taking existing funds away from other programs and allocating them to schools; or

            (b) An increase in existing taxes or an addition of new state revenue sources in order to enable the state to support schools to the extent required by the constitution while, at the same time, continuing to fund all other existing state programs.

             [[Orig. Op. Page 12]] In addition, however, there is a third possibility also to be noted; namely, some form of increase in the discretionary taxing power of local school districts themselves.  For example, without a constitutional amendment school districts could be authorized to impose some form of sales tax or other excise tax on business activities occurring within their boundaries.  And with a constitutional amendment they could be granted the status presently occupied by port and public utility districts with respect to property taxes.  Under Article VII, § 2, of the constitution those districts are exempt from the present one percent limit on property taxes which may be imposed without a vote of the people6/ - and a similar exemption could be granted to school districts as well if the people were to approve a constitutional amendment so providing.

            The legal premise upon which this alternative approach is based involves a reading of Article IX, § 1,supra, in conjunction with § 2 of the same article of the constitution which provides that:

            "The legislature shall provide for a general and uniform system of public schools.  The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established.  But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools."

            The means by which this mandate has been carried out by the legislature is, of course, the establishment of a system of local school districts operating under the specific governance of local school boards and the general supervision of the state superintendent of public instruction.  See, RCW 28A.58.110 and Wash. Const., Article III, § 22.  As the court stated inNewman v. Schlarb, 184 Wash. 147, 153, 50 P.2d 36 (1935), after quoting both Article IX, §§ 1 and 2:

            "It is apparent that the legislature, acting in pursuance of the constitutional mandate, saw fit to establish a system which, because of its ramifications, was to be administered through the cooperation of state, county, and  [[Orig. Op. Page 13]] school district officers.  It needs no argument to prove that the system must of necessity be operated and conducted in that way.  The state, being engaged in the exercise of a paramount duty, could, of course, select any method that it saw fit in order to discharge that duty.  Consequently, it reserved to the proper state officers the general supervision of the system and entrusted to its various political subdivisions certain functions and details in which they were particularly interested and concerned."

            In other words it was not necessary for the state, in order to comply with Article IX, §§ 1 and 2, to itself become the owner and operator, so to speak, of all public schools.  What was, and is, required by the constitution is that the state, acting through the legislature, establish a system of public schools that is "ample" for the educational needs ". . . of all children residing within its borders. . ."  It is the "paramount duty" of the state to do this, but the means by which it does so are left to the legislature.

            Insofar as finances are concerned, one means, obviously, would be for the state itself to pay all of the necessary expenses of the school system from its own treasury ‑ regardless of whether the system was one operated exclusively by the state itself or one (as is actually the case) administered locally by local school boards.  But where local school districts are provided for in performance of the constitutional duty, it should logically follow that some form of local funding would also be constitutional ‑ so long as it is adequate, either alone or with supplementary state funds, to meet the total needs of the system on a uniform basis throughout the state.

            Simply put, the constitution does not require the state to establish, maintain and operate all of the public schools by itself.  Newman v. Schlarb,supra. What it does require is that the state establish a school system and ‑ whatever that system may be ‑ arm it with all of the tools necessary to provide all children in the state with an ample educational opportunity no matter where within the state they may live.  Among these tools are either the money to do the job, in the form of state funds, or the taxing power to raise that money locally without resort to "special" levies or the like ‑ revenue sources requiring voter approval by an exceptional majority because they are designed to cover exceptional or unusual expenses of the taxing district involved rather than its  [[Orig. Op. Page 14]] basic operational needs.  See,Gordan v. Lance, 403 U.S. 1, 29 L. ed. [[L.Ed.]]2d 273, 91 S.Ct. 1889 (1971); andThurston v. Greco, 78 Wn.2d 424, 474 P.2d 881 (1970).

            Perhaps, in the final analysis, some kind of combination of these approaches would be deemed by the legislature to be most appropriate; i.e., an expanded taxing power for the local school districts as would result from an exemption of such districts from the restrictions of Article VII, § 2,supra, coupled with a state funded "power equalization" system designed to aid those districts with lower than average per pupil assessed valuations.  Or, perhaps, there may be such political problems with any form of local taxation not requiring voter approval as to render that revenue source impractical notwithstanding its legality.  This, however, is something that the legislature will have to decide in addressing itself to the problem.  Our purpose in including this discussion of possible local financing in the concluding segment of this response to your request for our consideration of theNorthshore case and related matters has merely been to insure that, for better or worse, it is not simply overlooked in the face of pressure for total state funding of what is still a locally administered system of public schools.

            It is hoped, again, that this presentation will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General