June 9, 2011
Governor Christine Gregoire
Office of the Governor
PO Box 40002
Olympia, Washington 98504-0002
We represent the Washington Families for Online Learning, a non-profit organization of parents, teachers, and other supporters of Alternative Learning Experiences ("ALE") through online learning. We urge you to veto Section 9 of ESHB 2065, which would unconstitutionally reduce basic education funding between 10% to 20% in the 2011-13 Biennial Operating Budget for students enrolled in every ALE program. The cut in ALE funding violates the constitutional mandate to provide education to all children. It also unconstitutionally shifts the duty to fund education to the school districts that offer ALE programs and fails to reduce State expenditures. ALE programs serve children who are "at risk" of dropping out of school but can often be saved through unique student-centered programs. ALEs include state-approved, online public school programs for students who learn best from technology-based instructional methods and non-traditional learning environments. The projected savings of approximately $41 million from the cut to ALEs could be achieved by other reductions, discussed below, that would preserve basic education for students in traditional at-risk and innovative online public school programs throughout the state.
"It is the paramount duty of the state to make ample provision for the education of all children residing within its borders." Const. art. IX, 1 (emphasis added). The Supreme Court interprets this constitutional mandate to impose a paramount duty upon the State to substantively establish a basic education system and to provide ample funding to support that system. Seattle School District No. 1 v. State, 90 Wash.2d 476 (1978). At least two cases have addressed this issue in the context of state funding allocations and in both cases the Court found that the State's underfunding of education was unconstitutional. Seattle School District No.1 and McCleary v. State, No. 07-2-02323-2 SEA, February 4, 2010.
In 1978, the Seattle School District, parents and others brought suit against the State seeking a declaratory judgment that public education was underfunded in violation of the State Constitution. Seattle School District No. 1, 90 Wash. 2d 476 (1978). State funding was inadequate to such a degree that school districts relied on special excess levies to supplement their budgets. Id. The levies were repeatedly rejected by voters. Id.
The case went to the State Supreme Court where the constitutional provision was recognized as a mandate of the highest level that not only imposes a strict duty on the State to provide education, but creates a "correlative right on behalf of all children residing within...the State."
Seattle School District No. 1 v. State, 90 Wash.2d 476, 510-12 (1978). The Court held that compliance with this duty requires the Legislature to both "defin[e] and giv[e] substantive content to...a basic program of education" and to provide sufficient funding to support these programs. Id. at 519-520. These requirements are achieved through a "general and uniform system of public schools," that "goes beyond mere reading, writing and arithmetic" to "embrace[] broad educational opportunities needed...to equip our children for their role as citizens and as potential competitors in today's market as well as the market place of ideas." Id. at 517. The Court concluded, "Consequently, all children residing within the State's borders have the 'right' to be amply provided with an education." Id. at 513. (emphasis added).
This ample-funding issue was raised again in a recent King County Superior Court decision. Judge John Erlick issued a lengthy opinion holding current state-funding for public education constitutionally insufficient. McCleary, p. 73. Like the Supreme Court, Judge Erlick emphasized the State's constitutional duty to provide education to all Washington students. Judge Erlick noted that the constitution requires the State to, "amply provide[d] for the education of every child residing in our State - not just those children who enjoy the advantage of being born into one of the subsets of our State's children who are more privileged, more politically popular, or more easy to teach." McCleary, p, 37. (emphasis added). These students must be equipped with the "basic knowledge and skills needed to compete in today's economy and meaningfully participate in this State's democracy." McCleary, p. 51. This is the measure of compliance with the constitutional mandate. Id.
Importantly, Judge Erlick reaffirmed the holding of Seattle School District No. 1 that it is the duty of the State, not school districts, to fund basic education. McCleary, pg. 64-65. The State does not fulfill its obligation by delegating its duty to school districts. Id.
II. Alternative Learning Experiences have Become a Vital Component of Basic Education in Washington State.
The State Legislature implemented ALEs to address educational deficiencies in the general and uniform system of public schools. ALEs are "proven to be effective in providing for the educational needs" of "at risk" and other students who are unable to receive a basic education in a traditional learning environment. RCW 28A.415.330, 28A.150.305.
ALE programs were formally recognized by the Legislature in 2005 when it enacted the Digital Program Law ("2005 Act"). RCW 28A.150.262. The Legislature specifically found that these courses "provide students with opportunities to study subjects that may not otherwise be available" and that they "meet the instructional needs of students who have scheduling conflicts, students who learn best from technology-based instruction methods, ...students who have a need to enroll in schools on a part-time basis...[and] students and families seeking nontraditional learning environments." RCW 28A.150.262. For the students that rely on ALE programs, they are not an "enrichment" or other special or additional program. They are the only "proven" method by which they have any hope of receiving a basic education.
Thus, the Legislature concluded that ALEs are a required and essential element to providing basic education to some students of the State, and therefore must be a part of an amply funded basic program of education.
ALE programs are implemented through school districts. The students enrolled in ALEs are statutorily defined as "full-time equivalent students" and their districts receive their general appropriation funds as they do for students attending traditional education programs. RCW 28A.150.262. As part of the established substantive educational program, students in ALEs have the same correlative right to "ample funding" to equip them with the skills and knowledge mandated by the State Constitution. To treat them otherwise is patently unconstitutional.
III. The Substantial Cut in Funding Undeniably Threatens Basic Education for ALE Students and Unconstitutionally Shifts Funding Duties to Local School Districts.
ESHB 2065, Sec. 9, targets students in ALE programs, and only ALE students, for a reduction of up to 20%. The Superintendent of Public Instruction is directed to achieve a stunningly large reduction of 15% in ALEs by reducing programming by no less than a 10% reduction and no more than a 20% reduction. A budget cut of this magnitude will all but decimate most ALE programs. School districts offering ALE programs employ additional credentialed teachers and administrative staff solely for their ALE programs. Because the most significant cost of an ALE program, as with "brick and mortar" schools, is labor, the proposed cuts will require a substantial reduction in educators. Neither an ALE nor any traditional educational program could withstand an immediate, 15% budget cut without decimating the quality of its education.
The ALE funding adjustment in the budget's "Agency Detail" from the House states that the cut "reflects the elimination of school-level secretaries, janitors, buildings and grounds staff, security guards, and other staff from the ALE per student allocation rate." These are faulty assumptions. Some ALE programs serve adjudicated youth and gang members requiring enhanced school security for student safety, many ALE programs across the state are housed in school buildings requiring the same maintenance and grounds staff and all ALE programs hire additional clerical support to meet the significantly increased reporting requirements from the State. Further, even if the assumptions were not faulty, there is absolutely no analysis linking the magnitude of the proposed cut to the costs associated with these specific items. Finally, ALE programs also incur many additional costs not incurred by other traditional programs.
The proposed cut targeting ALE students lacks any serious analysis of its relation to the costs of providing an ample basic education. Without any such showing, it should be obvious that a reduction on this scale will lay waste to the basic education of students that rely on ALE programs to meet their basic educational needs.
It is no answer that school districts will be expected to fund ALEs from the funding it receives from students in the brick and mortar programs. The Legislature may not delegate its express legislative duties. Such delegation does not fulfill its constitutional duties. In both Seattle School District No. 1 and McCleary, the Legislature delegated funding responsibilities to school districts and both times this delegation was unconstitutional. The Legislature now seeks to make a substantially similar unconstitutional delegation of funding responsibilities for the basic educational program of students who rely upon the ALE programs.
IV. Section 9 of ESHB 2065 Magnifies the Problems.
Closures or significant reductions in enrollment of ALE programs would force some students into already overcrowded brick and mortar programs. It would also trigger 100% funding of the general apportionment for students who would re-enter a traditional school program.
The fiscal note of June 7, 2011 makes it clear ALE students are funded from the "per student basic education allocation" at the same rate and on the same basis as all other public school students. The drastic cut of ESHB 2065 obviously cuts basic education.
A 15% reduction targeted solely at students who rely upon the ALE to meet their basic education needs is almost certain to bring about a serious challenge to its validity. The lack of any specific cost analysis or evidence supporting the concept that an immediate 15% cut in this one basic education program, relied upon by some students to meet their basic educational needs, renders the proposal constitutionally indefensible.
V. Budget Savings Can be Achieved through ALE Policy Changes that Will Not Cut Basic Education.
Budget writers assume the substantial cut to ALEs will save the State about $41 million in the 2011-13 biennium.# But that savings has already partially been achieved by a recent rule change and the balance could be realized by a rule change restoring pre-2005, face-to-face, in-person instructional contact with a certificated teacher one hour per week for all ALE programs not covered by 28A.150.262 (online accountability statutes).
The Superintendent of Public Instruction recently adopted a rule change to WAC 392-121-182(6)(d) that would end an unintended consequence of the 2005 Act. # School districts currently can receive a up to 99% FTE for each student enrolled in a Parent Partnership Program (PPP) with the remaining 1% from the student's "Home-based" education having filed an intent to homeschool. Since 2006, districts began providing "services" such as reimbursing parents for a wide-range of expenses incurred educating their own children at home. Beginning this fall, this rule change will prohibit parent reimbursements - a frequent reason many parents participate in PPPs.
Significant additional savings would be achieved by restoring accountability in ALE programming that existed prior to the 2005 online learning legislation. The Superintendent could restore the pre-2005 requirement for one hour per week, face-to-face teacher contact for non-online, ALE programs. Prior to the 2005 Act, all ALE programs required five hours per week of teacher contact time. The Superintendent's May 20 fiscal note to ESHB 2065 reports there would be a decline of enrollment if the face-to-face teacher contact for students enrolled in non-online ALE programs were restored. When combined with the elimination of the parent reimbursements discussed in the previous paragraph, the May 20 fiscal note reports that the savings would be $44.9 million.#
To summarize, the undeniably superior approach would be to maintain basic education funding for all students enrolled in ALE programs, restore accountability, end unnecessary reimbursements and through an OSPI emergency rule restore one hour per week of teacher contact for students enrolled in non-online ALE programs. According to the May 20 fiscal note, the recent rule change and the proposed rule change would achieve over $41 million in budget savings.
Conclusion
For the above reasons, the discriminatory 15% cut disfavoring students in ALEs is unconstitutional, it will deny basic education to students that the Legislature has already concluded can best learn through ALE programs, and is likely to result in expensive litigation for the State. We trust you will restore full-funding to ALE students by vetoing Sec. 9 of ESHB 2065 and give OSPI the flexibility to make a rule change as reflected in the May 20 fiscal note to restore the in-person, face-to-face requirement for non-online ALEs.
Office of the Governor
PO Box 40002
Olympia, Washington 98504-0002
Re: Request for Veto of Unprecedented Reduction in the 2011-2013 Biennial Operating Budget to Basic Education Provided Through Alternative Learning Experiences
Dear Governor Gregoire:
We represent the Washington Families for Online Learning, a non-profit organization of parents, teachers, and other supporters of Alternative Learning Experiences ("ALE") through online learning. We urge you to veto Section 9 of ESHB 2065, which would unconstitutionally reduce basic education funding between 10% to 20% in the 2011-13 Biennial Operating Budget for students enrolled in every ALE program. The cut in ALE funding violates the constitutional mandate to provide education to all children. It also unconstitutionally shifts the duty to fund education to the school districts that offer ALE programs and fails to reduce State expenditures. ALE programs serve children who are "at risk" of dropping out of school but can often be saved through unique student-centered programs. ALEs include state-approved, online public school programs for students who learn best from technology-based instructional methods and non-traditional learning environments. The projected savings of approximately $41 million from the cut to ALEs could be achieved by other reductions, discussed below, that would preserve basic education for students in traditional at-risk and innovative online public school programs throughout the state.
- The Constitutional Mandate to Provide Education.
"It is the paramount duty of the state to make ample provision for the education of all children residing within its borders." Const. art. IX, 1 (emphasis added). The Supreme Court interprets this constitutional mandate to impose a paramount duty upon the State to substantively establish a basic education system and to provide ample funding to support that system. Seattle School District No. 1 v. State, 90 Wash.2d 476 (1978). At least two cases have addressed this issue in the context of state funding allocations and in both cases the Court found that the State's underfunding of education was unconstitutional. Seattle School District No.1 and McCleary v. State, No. 07-2-02323-2 SEA, February 4, 2010.
In 1978, the Seattle School District, parents and others brought suit against the State seeking a declaratory judgment that public education was underfunded in violation of the State Constitution. Seattle School District No. 1, 90 Wash. 2d 476 (1978). State funding was inadequate to such a degree that school districts relied on special excess levies to supplement their budgets. Id. The levies were repeatedly rejected by voters. Id.
The case went to the State Supreme Court where the constitutional provision was recognized as a mandate of the highest level that not only imposes a strict duty on the State to provide education, but creates a "correlative right on behalf of all children residing within...the State."
Seattle School District No. 1 v. State, 90 Wash.2d 476, 510-12 (1978). The Court held that compliance with this duty requires the Legislature to both "defin[e] and giv[e] substantive content to...a basic program of education" and to provide sufficient funding to support these programs. Id. at 519-520. These requirements are achieved through a "general and uniform system of public schools," that "goes beyond mere reading, writing and arithmetic" to "embrace[] broad educational opportunities needed...to equip our children for their role as citizens and as potential competitors in today's market as well as the market place of ideas." Id. at 517. The Court concluded, "Consequently, all children residing within the State's borders have the 'right' to be amply provided with an education." Id. at 513. (emphasis added).
This ample-funding issue was raised again in a recent King County Superior Court decision. Judge John Erlick issued a lengthy opinion holding current state-funding for public education constitutionally insufficient. McCleary, p. 73. Like the Supreme Court, Judge Erlick emphasized the State's constitutional duty to provide education to all Washington students. Judge Erlick noted that the constitution requires the State to, "amply provide[d] for the education of every child residing in our State - not just those children who enjoy the advantage of being born into one of the subsets of our State's children who are more privileged, more politically popular, or more easy to teach." McCleary, p, 37. (emphasis added). These students must be equipped with the "basic knowledge and skills needed to compete in today's economy and meaningfully participate in this State's democracy." McCleary, p. 51. This is the measure of compliance with the constitutional mandate. Id.
Importantly, Judge Erlick reaffirmed the holding of Seattle School District No. 1 that it is the duty of the State, not school districts, to fund basic education. McCleary, pg. 64-65. The State does not fulfill its obligation by delegating its duty to school districts. Id.
II. Alternative Learning Experiences have Become a Vital Component of Basic Education in Washington State.
The State Legislature implemented ALEs to address educational deficiencies in the general and uniform system of public schools. ALEs are "proven to be effective in providing for the educational needs" of "at risk" and other students who are unable to receive a basic education in a traditional learning environment. RCW 28A.415.330, 28A.150.305.
ALE programs were formally recognized by the Legislature in 2005 when it enacted the Digital Program Law ("2005 Act"). RCW 28A.150.262. The Legislature specifically found that these courses "provide students with opportunities to study subjects that may not otherwise be available" and that they "meet the instructional needs of students who have scheduling conflicts, students who learn best from technology-based instruction methods, ...students who have a need to enroll in schools on a part-time basis...[and] students and families seeking nontraditional learning environments." RCW 28A.150.262. For the students that rely on ALE programs, they are not an "enrichment" or other special or additional program. They are the only "proven" method by which they have any hope of receiving a basic education.
Thus, the Legislature concluded that ALEs are a required and essential element to providing basic education to some students of the State, and therefore must be a part of an amply funded basic program of education.
ALE programs are implemented through school districts. The students enrolled in ALEs are statutorily defined as "full-time equivalent students" and their districts receive their general appropriation funds as they do for students attending traditional education programs. RCW 28A.150.262. As part of the established substantive educational program, students in ALEs have the same correlative right to "ample funding" to equip them with the skills and knowledge mandated by the State Constitution. To treat them otherwise is patently unconstitutional.
III. The Substantial Cut in Funding Undeniably Threatens Basic Education for ALE Students and Unconstitutionally Shifts Funding Duties to Local School Districts.
ESHB 2065, Sec. 9, targets students in ALE programs, and only ALE students, for a reduction of up to 20%. The Superintendent of Public Instruction is directed to achieve a stunningly large reduction of 15% in ALEs by reducing programming by no less than a 10% reduction and no more than a 20% reduction. A budget cut of this magnitude will all but decimate most ALE programs. School districts offering ALE programs employ additional credentialed teachers and administrative staff solely for their ALE programs. Because the most significant cost of an ALE program, as with "brick and mortar" schools, is labor, the proposed cuts will require a substantial reduction in educators. Neither an ALE nor any traditional educational program could withstand an immediate, 15% budget cut without decimating the quality of its education.
The ALE funding adjustment in the budget's "Agency Detail" from the House states that the cut "reflects the elimination of school-level secretaries, janitors, buildings and grounds staff, security guards, and other staff from the ALE per student allocation rate." These are faulty assumptions. Some ALE programs serve adjudicated youth and gang members requiring enhanced school security for student safety, many ALE programs across the state are housed in school buildings requiring the same maintenance and grounds staff and all ALE programs hire additional clerical support to meet the significantly increased reporting requirements from the State. Further, even if the assumptions were not faulty, there is absolutely no analysis linking the magnitude of the proposed cut to the costs associated with these specific items. Finally, ALE programs also incur many additional costs not incurred by other traditional programs.
The proposed cut targeting ALE students lacks any serious analysis of its relation to the costs of providing an ample basic education. Without any such showing, it should be obvious that a reduction on this scale will lay waste to the basic education of students that rely on ALE programs to meet their basic educational needs.
It is no answer that school districts will be expected to fund ALEs from the funding it receives from students in the brick and mortar programs. The Legislature may not delegate its express legislative duties. Such delegation does not fulfill its constitutional duties. In both Seattle School District No. 1 and McCleary, the Legislature delegated funding responsibilities to school districts and both times this delegation was unconstitutional. The Legislature now seeks to make a substantially similar unconstitutional delegation of funding responsibilities for the basic educational program of students who rely upon the ALE programs.
IV. Section 9 of ESHB 2065 Magnifies the Problems.
Closures or significant reductions in enrollment of ALE programs would force some students into already overcrowded brick and mortar programs. It would also trigger 100% funding of the general apportionment for students who would re-enter a traditional school program.
The fiscal note of June 7, 2011 makes it clear ALE students are funded from the "per student basic education allocation" at the same rate and on the same basis as all other public school students. The drastic cut of ESHB 2065 obviously cuts basic education.
A 15% reduction targeted solely at students who rely upon the ALE to meet their basic education needs is almost certain to bring about a serious challenge to its validity. The lack of any specific cost analysis or evidence supporting the concept that an immediate 15% cut in this one basic education program, relied upon by some students to meet their basic educational needs, renders the proposal constitutionally indefensible.
V. Budget Savings Can be Achieved through ALE Policy Changes that Will Not Cut Basic Education.
Budget writers assume the substantial cut to ALEs will save the State about $41 million in the 2011-13 biennium.# But that savings has already partially been achieved by a recent rule change and the balance could be realized by a rule change restoring pre-2005, face-to-face, in-person instructional contact with a certificated teacher one hour per week for all ALE programs not covered by 28A.150.262 (online accountability statutes).
The Superintendent of Public Instruction recently adopted a rule change to WAC 392-121-182(6)(d) that would end an unintended consequence of the 2005 Act. # School districts currently can receive a up to 99% FTE for each student enrolled in a Parent Partnership Program (PPP) with the remaining 1% from the student's "Home-based" education having filed an intent to homeschool. Since 2006, districts began providing "services" such as reimbursing parents for a wide-range of expenses incurred educating their own children at home. Beginning this fall, this rule change will prohibit parent reimbursements - a frequent reason many parents participate in PPPs.
Significant additional savings would be achieved by restoring accountability in ALE programming that existed prior to the 2005 online learning legislation. The Superintendent could restore the pre-2005 requirement for one hour per week, face-to-face teacher contact for non-online, ALE programs. Prior to the 2005 Act, all ALE programs required five hours per week of teacher contact time. The Superintendent's May 20 fiscal note to ESHB 2065 reports there would be a decline of enrollment if the face-to-face teacher contact for students enrolled in non-online ALE programs were restored. When combined with the elimination of the parent reimbursements discussed in the previous paragraph, the May 20 fiscal note reports that the savings would be $44.9 million.#
To summarize, the undeniably superior approach would be to maintain basic education funding for all students enrolled in ALE programs, restore accountability, end unnecessary reimbursements and through an OSPI emergency rule restore one hour per week of teacher contact for students enrolled in non-online ALE programs. According to the May 20 fiscal note, the recent rule change and the proposed rule change would achieve over $41 million in budget savings.
Conclusion
For the above reasons, the discriminatory 15% cut disfavoring students in ALEs is unconstitutional, it will deny basic education to students that the Legislature has already concluded can best learn through ALE programs, and is likely to result in expensive litigation for the State. We trust you will restore full-funding to ALE students by vetoing Sec. 9 of ESHB 2065 and give OSPI the flexibility to make a rule change as reflected in the May 20 fiscal note to restore the in-person, face-to-face requirement for non-online ALEs.
Very truly yours,
ELLIS, LI & McKINSTRY PLLC
Steven T. O'Ban
