WA Governor Inslee’s Order Cancelling Remaining School Year Possibly Unconstitutional

By Darren Smith, Weekend Contributor

It is my analysis and view that Washington Governor Inslee’s declaration cancelling the entirety of the remaining school year under the rubric of the COVID-19 situation possibly violates the Washington State Constitution.

The state’s Supreme Court held in McCleary v. Washington that “The word “ample” in article IX, section 1 provides a broad constitutional guideline meaning fully, sufficient, and considerably more than just adequate.

The Washington Constitution provides in Article IX, Section 1 (Preamble) that “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.”

I believe a strong argument can be made that the rather arbitrary determination of Governor Inslee to cancel a third of a year of public school instruction statewide, under penalty of a criminal offense inferred presumably by educators unilaterally offering in-class instruction, without a “make up” period prior to the succeeding school year, not only usurps the legislature’s role in facilitating the constitutionally mandated paramount duty to provide ample education but denies individual students the opportunity to compete in the economy and democracy on an equal footing with those in other states.

While McCleary primarily addressed the then-current deficiency of primary school funding, the court did reiterate the paramount importance and constitutional right of students to receive the opportunity for education:

“The word “education” under article IX, section 1 means the basic
knowledge and skills needed to compete in today’s economy and
meaningfully participate in this state’s democracy

Furthermore, the Court in McCleary deferred to the state legislature the power and obligation to provide for the method and scope of a system of education. As defined in RCW 28A.150.220 (2) a set of minimum hours is codified as follows:

(a) For students enrolled in grades one through twelve, at least a district-wide annual average of one thousand hours, which shall be increased beginning in the 2015-16 school year to at least one thousand eighty instructional hours for students enrolled in grades nine through twelve and at least one thousand instructional hours for students in grades one through eight, all of which may be calculated by a school district using a district-wide annual average of instructional hours over grades one through twelve; and

(b) For students enrolled in kindergarten, at least four hundred fifty instructional hours, which shall be increased to at least one thousand instructional hours according to the implementation schedule under RCW 28A.150.315.

The governor’s series of proclamations prohibiting participation of students in their education by attending school began with that of February 29th, 2020 and was extended to the remainder of the school year on April 6th. In his most recent proclamation, the governor justifies the denial of education based nearly solely upon prior declarations of emergency and a general provision of emergency power to act unilaterally during states of emergency. (Chapter 43.06 RCW) , (General Powers) and (Emergency Management) The proclamation made no reference to a legal foundation to specifically nullify the minimally mandated school academic year, and certainly did so without the consent of the state legislature.

The most recent proclamation does purport to offer a method for local school districts to facilitate an in-classroom education environment for students, but this again bypasses the legislature and defers to the state department of health. Yet as you will see there remains a strong element of inherent coerciveness by the governor’s mandate:

FURTHERMORE, if a public school or private school determines that the provision of in-person educational services on the premises of a school facility is essential and necessary under state or federal law, nothing in this order precludes the school from providing the services on site. However, schools are prohibited from providing these essential and necessary services unless state Department of Health guidelines for social distancing and proper hygiene practices are followed at all times.

Pragmatically speaking, what administrator would yield to local pressure to open a school facility for in-person education when the same proclamation makes mention of caveats such as these? …

I continue to order into active state service the organized militia of Washington State to include the National Guard and the State Guard, or such part thereof as may be necessary in the opinion of The Adjutant General to address the circumstances described above, to perform such duties as directed by competent authority of the Washington State Military Department in addressing the outbreak. Additionally, I continue to direct the Department of Health, the Washington State Military Department Emergency Management Division, and other agencies to identify and provide appropriate personnel for conducting necessary and ongoing incident related assessments.

Violators of this order may be subject to criminal penalties pursuant to RCW 43.06.220(5).

The power of any state governor acting under state of emergency is not absolute. Washington’s governor unilaterally declared a disenfranchisement of the state’s entire K-12 student body. This is not a narrowly tailored measure dictated by local circumstance or need. I believe the governor exceeded his authority in bypassing the legislative mandate for school year duration without any formal attempt to mitigate the negative effect through providing a substantive substitute (such as the state providing an online learning experience as is offered at the university level) nor the ability to make up for the missed education opportunity later in the summer. There is strong indication that the COVID-19 situation is improving in the state, as evidenced by, among other measures, the removal from the state of federally provided mobile hospital facilities to act as treatment centers and that the state dropped twelve points in ranking the number of new cases. And, the inevitable improvement of the public health concern with the outbreak undermines the governor’s position that the abandonment of the remaining school year is reasonable.

I might also add that if one were to accept that any distance learning opportunity was acceptable at the university level that it might be suitable for high school age students, but for primary school environments for grades Kindergarten through perhaps Second Grade, the nurturing element for in-person instruction for those of such youth is lacking in a greater degree with distance learning. Additionally, shop and vocational instruction will be inherently lacking when solely provided on line, as there is little ability to learn hands on vocational skill without the benefit of practice or use of tools. Thus, students wanting to enter the trades would be at a disadvantage to those having the full vocational experience upon graduation. There is also the matter of broadband access not being available in some areas, primarily for those residing in rural or otherwise disconnected homes.

It certainly is rather convenient to simply throw students under the bus and capriciously declare an end to formal primary education in Washington State by one public official. This is not what the legislature nor the Supreme Court, if they are honest with their own precedent, define as an education that is more than adequate. On the contrary it is woefully inadequate and detrimental to our children’s welfare.

By Darren Smith

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.