Under the state Constitution, the Legislature cannot give higher education short shrift in order to fully fund K-12, write guest columnists Stan Barer and Hugh Spitzer.
WASHINGTON’S Office of Financial Management recently warned the state’s public universities to expect severe budget cuts in the next fiscal year — possibly up to 15 percent. Much of the impetus for this threat comes from the state Supreme Court’s requirement that the Legislature live up to the Constitution’s declaration that the “paramount duty” of state government is “to make ample provision for the education of all children residing within its borders.”
Many assume that the state’s constitutional funding obligation is solely to K-12 education. But that assumption is wrong. A careful review of two intertwined state constitutional provisions, Articles 9 and 13, reveals that the state has a companion financial obligation to its universities. What this means, from a practical standpoint, is that the Legislature cannot lawfully throw our public universities under the bus in meeting its duty to finance K-12 education.
In today’s dollars, the 1909-1911 state budget included expenditures equivalent to $3,964 per student at Washington’s five higher-education institutions, according to an analysis in a recent Washington Law Review article. And in 1910, in-state tuition was free. By the 1959-1961 biennium, Washington state’s support for universities had increased to an average of $11,574 per student for essentially the same programs — this was a period when postsecondary education was an extremely high national and state priority.
But since the 1980s, we have witnessed a massive reduction in state per-student funding for higher education. For example, in the 2009-2011 biennium, state per-student funding for the same programs dropped to $7,122, and by the 2011-2013 biennium, state per-student funding dropped to $5,000. Many students are forced to incur huge personal debts to finish their degrees. Other institutional and state analyses show slightly different figures, but the scale of the reductions is clear. This collapse in state funding is inconsistent with our Constitution’s design.
When Washington’s Constitution was drafted in 1889, it included two articles relating to education: first, the well-known Article 9, which includes the provision on the state’s “paramount duty” to amply provide for the common schools (understood at the time to be grades 1 through 8). Section 2 of Article 9 requires the Legislature to “provide for a general and uniform system of public schools” that must “include common schools, and such high schools, normal schools, and technical schools as may hereafter be established.”
In the 19th century, “normal schools” meant teacher training colleges. Upon statehood, normal schools were established in Bellingham, Ellensburg and Cheney, all of which were tuition-free for state residents. Today those schools are Western, Central, and Eastern Washington universities. The Legislature also created a technical school in Pullman that focused on science and agriculture — today’s Washington State University.
Lawmakers in 1897 specified that the common schools, high schools, normal schools, the scientific college in Pullman and the University of Washington were all to be under a comprehensive “code of public instruction.” Under Article 9, common schools, high schools, teacher-training colleges and technical colleges were and are entitled to the state funding required to maintain them as part of the “general and uniform system” of public instruction.
While Article 9 establishes the state’s obligation to K-12, teacher-training schools and technical schools, Article 13 of our Constitution underscores the state’s obligation to a number of public institutions, including universities. It states: “Educational, reformatory, and penal institutions; those for the benefit of youth who are blind or deaf or otherwise disabled; for persons who are mentally ill or developmentally disabled … shall be fostered and supported by the state, subject to such regulations as may be provided by law.”
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Article 13 then provides that the “regents, trustees, or commissioners of all such institutions” must be appointed by the governor and confirmed by the state Senate. We emphasize the word “regents” because for years many regarded Washington’s Article 13 as involving only prisons and schools for the blind, deaf and disabled.
But the recent Washington Law Review article demonstrated that in every late-19th century state constitution that mentioned “regents,” that word exclusively meant university regents.
Article 13 requires that institutions of higher education be “fostered and supported by the state,” so there is a constitutional basis for an adequate level of funding for the state’s universities. Court cases have suggested that the Legislature has more flexibility in financing universities than it does in K-12 education. But Articles 9 and 13 contemplated an education funding system that included elementary, secondary and postsecondary as well. Consequently, there must be some level of higher education funding below which the state cannot go.
How much money is “enough” for our public universities? That is hard to say. But the Legislature should focus first on constitutionally mandated programs — including both K-12 and higher education, as well as institutions for the disabled — before funding activities not expressly required by Washington’s Constitution. Continuing to reduce college budgets certainly does not constitute “fostering and supporting” our universities.
The Washington Supreme Court is fully engaged in pushing legislators to honor the state’s obligation to amply fund K-12. But if the Legislature robs the universities in its quest to pay for pre-college programs, the court might, in an appropriate case, use the “foster and support” standard to define a minimum level of constitutional support for higher education and other Article 13 institutions. A continuation of the recent trend of legislative cuts to higher education might invite such a case.