School district seeks supreme court review of capital funding suit
November 3, 2022
During the last half hour of the October Wahkiakum School District Board of Directors meeting, the directors discussed the district’s lawsuit against the State of Washington and strategized strengthening support for it, including financially, at a coming Washington State School Director’s Association conference in November.
Wahkiakum’s lawsuit against the State of Washington claims that the state is failing to meet the standard set by the constitution when it excludes facilities from Article 9 Section 1, which says “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,” when it does not amply fund capital costs that would allow the district to upgrade aging facilities in order to keep students safe and ensure they can compete with their peers in a changing, modern world.”
The district and their lawyer, Thomas Ahearne of Foster Garvey, have asked for a direct review from the Washington State Supreme Court after the lawsuit was initially dismissed with prejudice in Wahkiakum Superior Court by Judge Donald Richter on June 24.
Why would other districts support Wahkiakum’s lawsuit? Because a win could benefit other districts around the state who rely on local bonds to provide adequate and safe facilities for their students.
Wahkiakum has raised $50,000 so far, Freeman said. The money will be used to pay legal fees.
He also told the board that it was safe to say that half the school districts in the immediate vicinity were supportive.
“It is something that is being talked at,” he said. “Capital facility funding has been a top five WSSDA agenda item for decades. There is just a lot of interest in this.”
Director Shawn Merz, who attended a recent Longview school board meeting with Freeman, praised him for his efforts to persuade that board to support the lawsuit.
“You did a good job,” Merz said. “It was interesting to see the few in the audience, and their response. I thought one lady was going to jump up. ‘Yeah, we should get that at our school!’”
“The fact that no one has done this before, it’s shocking to me that little Wahkiakum is the one that is standing up against the state on this issue,” Freeman said. “Again, hats off to the five of you for having the vision, and being willing to take the risk here. And it’s shocking to me how many schools have known about this but have never even thought about what the pathway could look like.
“What we’ve come up with is just a masterful legal document. It’s beautifully written. That opening brief, the 73 pages that Tom [Ahearne] really crafted together, I don’t know why it had to wait till 2020 and Wahkiakum for lightning to strike.”
“It had to be a perfect storm. I think all those things had to come together. Tom had to be on board. All of our avenues were exhausted. I think that’s why,” said one of the directors.
Director Paula Culbertson asked if Ahearne, the winning litigator in the landmark McCleary case, had been approached in the past.
“For 20 years,” Freeman said. “Jim Kowalkowski, one of the best five or 10 superintendents in the state, in the hundreds of guys who have come before. He’d been trying to do it for years out of Davenport, and he’s a superstar. He tried it, he’s highly intelligent, he’s highly articulate, and he’s highly passionate. He’s been doing this for 40 years. He knows Tom really, really well, but Tom wouldn’t.”
“There have been several articles nationally about the infrastructure on a national basis for schools. It’s not just here, but we lucked out with the way the constitution was written. A lot of states don’t have that ability,” Director Bobbi Stefan said.
Freeman pointed out that many states don’t have a constitution that calls ample funding for education “paramount,” but still solve this issue.
“Colorado did this two decades ago,” he said. “Montana and Wyoming have invested in these schools. We’re not necessarily leading the nation in this; other places have made these investments.”
“I can’t see how anybody could say your facilities don’t determine outcomes,” he added.
School superintendents meet with legislators once a year, at the end of November.
“This is already on legislator’s minds. If there is no interest, then I’m going to tell people there’s no interest, but if there is a lot of interest I want to be able to go back to the legislators specifically when we meet them in southwest Washington and say half of the school districts in our area are on this, that are vested in this,” he said.
And he wants to tell them that some of their proposals to remedy the situation are “bad bandaids.”
“All you have done is created a bigger bandaid,” he said. “It’s going to fall short by two or threefold. This year in the Small Rural Modernization Grant there were $300 million worth of requests that went against an $18 million pot. I had $30 million in packages, but I was capped at $5 million.”
“That $300 million is artificially low,” Freeman said. “How many other districts were like me. I wrote all six grants because, by God, I was going to put all six in there to send them a message, but they weren’t going to let me.”
He added that an emergency grant that legislators are proposing to increase funding for falls short as well.
“The legislators are saying they are going to put more money in the emergency repair grant, Freeman said. “That’s awesome. I had an emergency. I had an HVAC unit that went down and I applied for it. I have to wait two years before I can get that emergency money.”
As for messaging, Freeman encouraged the board to consider two words when they talk with other school directors at the conference: paramount and excludes.
“When people say I don’t like what you are doing for taxes,” Freeman said. “It has nothing to do with the tax base. Paramount duty means it’s the first thing they do is fund education. Operational cost, and the facility cost. They’ve got plenty of money to do that. It’s everything else they want to do on the back of the budget they’ve got to figure out. That’s not our problem.”
“The other word is excludes,” he continued. “Our entire lawsuit really hangs on that word. Does or does not the constitution exclude capital facilities in the paramount duty of the state to provide an ample funding for every child in the state?”
“Ironically the state tells us the precise way buildings have to be built,” Culbertson said. “They tell us that, and make prevailing wage, and all of this on top of that.”
“And then you have to fund it,” Anderson said.
“We’re a county that for decades talked about how the big state has depleted our resources at the expense of our residents, and this is the first time that anyone has a chance in being successful poking back, saying look you aren’t doing your obligation,” Freeman said. “We know we win the moral war here. It’s grounded law.”