Article IX, Section 1 of the Washington State Constitution provides:

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.

“Paramount” means “more important than anything else; supreme.”

Citizens sued the state, claiming that the state’s school finance methods did not meet the requirements of Article IX, Section 1.  In the McCleary decision, the state Supreme Court held that the state had failed to meet its constitutional obligation.  It directed the legislature to devote more funding to education.  When the legislature failed at first to hand over the money, the court held the legislature in contempt and imposed a fine on legislators for each day that went by until the state House and Senate had voted the funds.

There are two ways for a court to interpret a law.  The first method requires the judge to read the applicable texts, examine precedent, and interpret historical context in an effort to find out what the law is.  We might call this the “discovery” method.  A judge using the second method determines in advance how a case should be decided.  The judge then searches for the particular form of words found in a statute, a constitution, or a precedent that can be used to support the desired result.  We can call this the “purpose-driven” method.

The purpose-driven method is disreputable.  It’s rare that a judge would acknowledge using it.  The problem is that judges who use the purpose-driven method have become adept at couching their opinions in language that makes it appear that they are using the discovery method.

Because judges can be so clever, we have to look beyond the texts of their opinions to determine if a decision was purpose-driven or discovered.  Which was it in McCleary?

The court directed the legislature to enact law, to legislate.  To do that, they had to overlook the first words of Article II of the state constitution:

The legislative authority of the state of Washington shall be vested in the legislature . . . .

By telling the legislature what to do, the court used authority that it did not have.  Taxing and spending are legislative functions, entrusted to members of the state House and Senate.  When a few brave legislators pointed this out, they were shouted down.  They should have been heeded.

The court relied on the word “paramount” when it was useful and then abandoned it.  If the responsibility to provide for public education is paramount, then no other function of government should have been funded until education had been properly taken care of.  Here, the court could have acted within its constitutional authority.

If education is paramount – and the state constitution says it is – then no other function of government can do better than second place.  Instead of directing the legislature to find new funding for education, the court could have enjoined the state from spending money on any other function of government – law enforcement, roads, child welfare, prisons, any of it – until the constitutional obligation to meet the state’s paramount responsibility had been met.

Had they followed the logic of their own analysis – had they been using the discovery method – they would have been attacked by everyone who benefits from the funding of those other functions of government.  That money goes directly to state employees and contractors and in-kind to the recipients of state services.  Had state money been diverted to the paramount obligation of providing education, all of those employees, contractors, and recipients would have been bidding up the price of pitchforks.  The elegant solution adopted by the court was to require the legislature to find new money, which hurts no one except taxpayers.

We are at the time of year when school districts and teachers’ unions negotiate over contracts for the coming school year.  This year, McCleary has produced a lot of new money to lubricate bargaining.

What happens if a union and a district cannot come to terms?  The teachers withhold their services.  They go on strike.

Isn’t that a violation of the constitutional requirement that the state make “ample provision” for the education of all children within its borders?  Money is one part of “ample provision”.  So are the services of teachers.

The state has no power to compel any individual teacher to supply his or her services.  But should the state enable teachers to withhold their services as a group?  How can the state allow a voluntary association of private persons to prevent the state from meeting its paramount constitutional obligation?

A cynic might note that the justices of the state supreme court are elected.  Their campaigns are funded by voluntary contributions from persons and organizations that have an interest in the outcome of cases that come before the court.  Purpose-driven?  Could be.