The McCleary Era: Education Funding or Judicial Governance?

Few cases have shaped modern Washington government more than McCleary. Depending on who you ask, it was either one of the greatest victories for constitutional rights in our state's history — or one of the most significant expansions of judicial power ever seen in Washington. What's fascinating is that many people on both sides of the debate actually agree on the beginning of the story. The disagreement centers on how it ended.

Today, I want to explore a question that goes far beyond education funding. It's a question about constitutional structure. A question about separation of powers. And ultimately, a question about the proper role of judges in our constitutional republic.

The Constitutional Duty

The case began with a provision found in Article IX, Section 1 of the Washington Constitution. McCleary v. State, 173 Wn.2d 477 (2012). It states: "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders." Notice the language. Not important. Not significant. Not beneficial. Paramount. The Constitution elevates education above every other obligation of state government.

The plaintiffs in McCleary argued that Washington had failed to fulfill that constitutional duty. And in 2012, the Washington Supreme Court agreed. Many observers — including critics of what happened later — agree that the Court possessed the authority to reach that conclusion. After all, interpreting the Constitution is exactly what courts are supposed to do. If the Legislature fails to satisfy a constitutional obligation, courts have both the authority and the responsibility to say so. Had the story ended there, McCleary would likely be remembered as an important constitutional decision. Instead, it became one of the most significant separation-of-powers disputes in Washington history.

What Happened Next?

After finding a constitutional violation, the Court took an unusual step: it retained jurisdiction. In other words, the Court did not simply issue its decision and allow the political branches to respond. Instead, it continued overseeing the case. The Court required progress reports, reviewed legislative actions, evaluated funding proposals, and repeatedly assessed whether the Legislature's efforts were constitutionally sufficient.

Supporters viewed this as necessary enforcement of constitutional rights. After all, a constitutional right means little if courts cannot ensure compliance. Critics viewed it differently. They argued that the Court had moved beyond interpreting the Constitution and begun supervising legislative appropriations. That distinction is where the real constitutional debate begins.

The Funding Numbers

When McCleary was decided in 2012, state funding for K–12 education was approximately $13.4 billion per biennium. The Legislature responded. Funding increased. By 2015, state K–12 funding had grown to approximately $18.2 billion — an increase of nearly $5 billion in just a few years. The Court nevertheless concluded that the State remained out of compliance.

The Legislature continued appropriating additional funds. Education spending continued to rise. By the 2017–19 biennium, K–12 funding had reached approximately $22 billion. In the following biennium, funding exceeded $26 billion. In practical terms, state funding for public education nearly doubled during the McCleary era. Yet the constitutional question remained unchanged: how much funding is enough? How much funding is constitutionally ample? The Constitution does not provide a number. It does not say $13 billion. It does not say $18 billion. It does not say $22 billion. It does not say $26 billion. And that's what makes McCleary so fascinating.

The Separation-of-Powers Problem

Courts are uniquely suited to answer certain questions. What does the Constitution mean? Has government violated it? What remedy is legally required? Those are judicial questions. But other questions have traditionally belonged to elected officials. How much money should be spent? What programs deserve funding? Should additional taxes be imposed? Should transportation receive more money? Should corrections? Should mental health services? Should education? Those are policy questions, and policy questions have historically been assigned to the Legislature.

The concern raised by McCleary is not that the Court identified a constitutional violation. The concern is that the Court retained jurisdiction long enough that it began evaluating whether successive multi-billion-dollar appropriations were sufficient. At that point, the Court was no longer merely deciding whether the Legislature had acted. It was deciding whether the Legislature had done enough. That is a very different function.

The Power of the Purse

The Washington Constitution assigns taxation and appropriations to the Legislature. Legislators decide how money is raised. Legislators decide how money is spent. Legislators balance competing priorities. Judges do not. The Court never enacted a tax. The Court never passed a budget. The Court never appropriated a dollar. Yet by retaining jurisdiction, reviewing legislative responses, imposing sanctions, and repeatedly finding legislative efforts insufficient, the Court became deeply involved in one of the largest budgetary disputes in Washington history.

Supporters argue that this involvement was necessary to enforce a constitutional command. Critics argue that it transformed the Court into a supervisor of legislative appropriations. Reasonable minds can disagree. But the question itself is important. Because if courts may supervise education funding for years, what principle prevents similar supervision elsewhere? Housing? Mental health? Public defense? Corrections? Transportation? Every constitutional obligation imposed on government potentially raises the same question.

The Legacy of McCleary

For me, the most interesting aspect of McCleary is not education funding. It's institutional power. The case forces us to confront a difficult constitutional question: when a court identifies a constitutional violation, where does judicial review end? And where does legislative supervision begin? The answer is not obvious. Reasonable people can disagree. But every Washingtonian should care about the question.

Because the Constitution does more than protect rights. It also divides power. And preserving that balance may be just as important as protecting any single constitutional guarantee. McCleary reminds us that constitutional government is not simply about reaching the right result. It's also about ensuring that each branch of government remains within its proper role.

And that debate will likely continue long after the final chapter of McCleary has been written.