Petition For Declaratory Judgement

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 vs. STATE OF WASHINGTON, Respondent.
INTRODUCTION The highest Court in the State of Washington recently affirmed what every parent knows-- that there is no more vital duty of state government than the education of our children. The founders of our State embedded this priority in the State Constitution: It is the
PETITION FOR DECLARATORY JUDGMENT - 1
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING BERNARD and SANDRA DUPLESSIS, on their own behalf and on behalf of their son, BERNARD DUPLESSIS, JR.; TOM and LINDA STAFFENHAGEN on their behalf and on behalf of their son, ANTHONY STEFFENHAGEN; LEAMON and DEBORAH WOODLEY, on their behalf and on behalf of their son, LEAMON WOODLEY, III; BRIAN and LINDA RAMBERG on their behalf and on behalf of their daughter, REBECCA RAMBERG; B. ERIC and STEPHANIE STARK, on their behalf and on behalf of their children, CONNER STARK and MADALYNN STARK, and WASHINGTON FAMILIES FOR ONLINE LEARNING, a Washington nonprofit corporation; Petitioners,
NO. PETITION FOR DECLARATORY JUDGMENT ENFORCING WASHINGTON STATE CONSTITUTION, ART. IX, SEC. 1
ELLIS, LI & MCKINSTRY PLLC

Attorneys at Law Market Place Tower 2025 First Avenue, Penthouse A Seattle, WA 98121-3125 2066820565 Fax: 2066251052
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paramount duty of the state to make ample provision for the education of all children Art. IX, Sec. 1. The Washington Supreme Court also affirmed what everyone knowsthat state officials are failing our children. In McCleary v. State of Washington, the Supreme Court ruled that for years the Legislatures spending per pupil woefully underfunds the basic education guaranteed to every student. But the States failure to meet its constitutional mandate is more egregious than even the McCleary Court identified. In the 2011-2013 biennium budget, the State actually cut the already inadequate funding per pupil by an average of 15% for students receiving their basic education through online public schools. Online public schools serve over 13,000 Washington State students each year. Online public schools are district-run, state approved programs under Washingtons Alternative Learning Experience (ALE) law intended to meet the instructional needs of students who learn best from technology-based instructional methods or meet the needs of students at risk of not succeeding in the traditional school setting. Students receive a highly accountable, individualized and mastery-based education taught by state-certified teachers. School districts providing these programs received the Full Time Equivalent (FTE) funding for each student until 2011. The 2011 cuts were made for purely cost saving purposes, have no basis in fact, and cannot be supported by sound educational policy. As such, the cuts violate McCleary which concluded that any reduction of programs or offerings from the basic education program must be accompanied by an educational policy rationale. The cuts have devastated the quality of online education and jeopardize the viability of these indispensable programs. And, ironically, if online public schools are forced to close, as many will if these cuts are not restored, online students will be driven back into traditional public schools and any savings to the State will be lost.
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Petitioners are the parents of students enrolled in online public schools. Many of their children were once in traditional public schools and struggled or dropped out because of medical issues, significant developmental challenges, difficulties in traditional classroom settings and other barriers to receiving a basic education. One child struggles with Aspergers and faced ridicule by fellow students, another must avoid the traditional learning environment because of hemophilia. Another student was a third grader reading at a kindergarten level and did not receive the individualized attention she needed to overcome her dyslexia. Other parents select online public school programs because their children excel in certain subjects and can proceed at their own pace. All attend an online public school and all are currently achieving at or above grade levels. Whatever the reason, an online school is the best way for these children to receive the basic education guaranteed by the State Constitution through an amply funded education. The Legislature must restore the full FTE funding for students in these vital programs. The State Constitution demands it. PARTIES 1. The following parent-petitioners file this action on their own behalf and on
behalf of their minor children. 1.1 Bernard and Sandra Duplessis are the parents of Bernard
Duplessis, Jr. Bernard is in the fifth grade and lives with his parents and sister, Dallas, in Tulalip, WA. Bernard attends an online public school for several reasons. He has hemophilia, which means if he is cut or bruised he bleeds continuously. His health condition at his age requires constant adult monitoring. A scrape on the playground or a scissors cut on the finger can instantly became a traumatic health care incident and even threaten his life. Online learning makes it possible for Sandra, who works in the home, to react instantly if Bernard is
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injured. Bernard is also dyslexic. In the online program, Bernard can go at his own pace with support from a trained online instructor. Even if Bernards medical condition permitted him to attend the local school serving the Tulalip Tribes, of which his father is a member, the school has one of the lowest reading scores in the country and resources are spread very thin. Online public education is ideal for Bernard. It was also ideal for his sister, Dallas, who attended a public online school until a year ago. She was recently honored by President Obama at the White House as a Champion of Change. The President called attention to Dallas and other Native American Youth leaders who are champions in their tribes and communities as they work to improve the lives of others. 1.2 Tom and Linda Staffenhagen are the parents of Anthony
Steffenhagen. Anthony was in a special program in elementary school that focused on meeting the needs of autistic students. When he was ready for middle school, his parents were told to prepare him for the real possibility that because of Anthonys seizure disorder and Aspergers Syndrome, he would likely get beat up and fall through the cracks. Rather than send him back to the school where his siblings had been educated, they opted for an online public school where Anthony is receiving individualized instruction by a certified teacher, assisted by specialists and the school district staff. Anthony is getting the education he deserves and his parents are comforted knowing there is an entire school "watching their back." 1.3 Leamon and Deborah Woodley are the parents of Leamon
Woodley, III. Leamon has excelled in learning and other activities after enrolling in an online public school five years ago. Five years ago, Leamon struggled academically because of ADHD; it was extremely challenging for him to sit still in a traditional setting. He was easily
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distracted but could not take medication to help him concentrate because of a heart condition. His teachers said that he should repeat a grade. Deborah could not sleep at night worrying about her son being left behind. Online public education was one of the best things that has happened to Leamon. He reads at grade level and performs well on state testing and the daily assessments. He masters each lesson prior to moving on. Had Leamon remained in a traditional school, he would have fallen more and more behind. Leamons parents are both retired military and he competes in the Joint Base Lewis and McCord Youth Bowling League, takes piano, and is only two ranks short from becoming an Eagle Scout. 1.4 Brian and Linda Ramberg are the parents of Rebecca Ramberg.
After five years of education in a traditional school, Rebecca was falling seriously behind. Diagnosed with severe dyslexia and ADHD, Rebecca could only read at a kindergarten level in the third grade. Her parents enrolled her in a special school for reading and math disabilities, burning through Rebecca's college savings and part of their retirement. She continued her downhill slide. Four years ago, Rebeccas parents enrolled her in an online public school. And in four years, Rebecca has gone from three or more years behind her grade level, to a grade level or above in every subject. The individualized attention, the expertise from the special education department, and the outstanding competency-based curriculum have made the difference. 1.5 B. Eric and Stephanie Stark are the parents of Conner Stark and
Madalynn Stark. When Eric worked on a college campus, Conner amazed professors with his knowledge and abilities. He began to read and could name many of the presidents along with a quote from many of them at age 3. Because he seemed to have an uncanny gift for reading and learning, his parents worried he would not be challenged in a traditional school
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environment. Their fears were well-founded. In kindergarten Conner often sat in the coat closet reading while his classmates learned the sounds of the alphabet. When the family moved it was much the same, until they discovered online public schools. Conner, and his sister, Madalynn, are able to take advanced placement courses that keep them busy, challenged and interested. And despite frequent moves, they can keep up with AP courses. 2. Petitioner Washington Families for Online Learning. Washington Families
is a Washington nonprofit corporation representing the interests of thousands of parents, students, teachers and other supporters of online learning throughout the State of Washington. 3. Respondent is the State of Washington. The State provides the public school
districts of our State with funds for basic education. JURISDICTION 4. This Court has jurisdiction over this action pursuant to, inter alia, chapter 7.24
RCW because this action presents a justiciable controversy between the petitioners and the respondent regarding the parties' rights and obligations under Article IX of the Washington Constitution. 5. This is an actual and existing dispute within the meaning of chapter 7.24 RCW,
between parties with genuine and opposing interests which are direct and substantial, a judicial determination of which will be final and conclusive. This Court also has jurisdiction by virtue of RCW 2.08.0lO, chapter 4.12 RCW, and RCW 7.40.010. 6. 4.92.010. FACTUAL BACKGROUND A. McCleary v. State of Washington ELLIS, LI & MCKINSTRY PLLC
Venue for this action properly lies in this Court pursuant to, inter alia, RCW

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1 7. 2 duty of the state to make ample provision for the education of all children residing within its 3 borders .... " 4 8. 5 all children at least from kindergarten through the twelfth grade. Article IX requires the State 6 to develop and fully fund a program of basic education which provides all children residing in 7 our State with the tools that allow them to succeed in the work force, in society and as 8 informed participants in a representative democracy. 9 9. 10 violation of the Constitution. McCleary v. State, ___P.3d___, 2012 WL 19676 (2012) *38. 11 The Court concluded that the State only satisfies its paramount duty when it amply 12 provide[s] for the education of all Washington children as the States first and highest priority 13 before any other State programs or operations. Id., *22-23 (emphasis added). This duty 14 extends to each and every child in the State so [n]o child is excluded. Id. (emphasis 15 added). The State must provide liberal, unrestrained, without parsimony, fully, and 16 sufficient funding for basic education from stable and dependable sources at the state 17 level. Id. at *26-27. Local and federal funds do not discharge the States duty to provide basic 18 education. Id. 19 10. 20 interpreting Art. IX, Sec. 1 to give it meaning and legal effect. The Legislature has the 21 responsibility to augment the broad educational concepts under Art. IX, Sec. 1 by providing 22 the specific details of the constitutionally required education. 23
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Article IX of the Washington State Constitution states: "It is the paramount
The Constitution imposes on the State the duty to provide a basic education for
In January of this year, the State Supreme Court ruled that the State is in
The Court stated that the judiciary has the primary responsibility for

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11.
Art. IX, Sec. 1 confers on children in Washington a positive constitutional
right to an amply funded education. 12. The Court concluded that the word education under Art. IX, Sec. 1 means
the basic knowledge and skills needed to compete in today's economy and meaningfully participate in this state's democracy. The current substantive content of the requisite knowledge and skills for education comes from three sources: the broad educational concepts outlined in Seattle School District, the four learning goals in Engrossed Substitute House Bill (ESHB) 1209, 53d Leg., Reg. Sess. (Wash.1993), and the State's essential academic learning requirements (EALRs). 13. The Court stated that the word ample in Art. IX, Sec. 1 provides a broad
constitutional guideline meaning fully, sufficient, and considerably more than just adequate. Ample funding for basic education must be accomplished by means of dependable and regular tax sources. 14. The State has not complied with its Art. IX, Sec. 1 duty to make ample
provision for the education of all children in Washington. 15. The Court voiced particular concern about three major areas of underfunding:
basic operational costs; student to/from transportation; and staff salaries and benefits. Id. at *29. The Court retained jurisdiction over the case to help facilitate progress in the State's plan to fully implement the reforms. 16. To give the Legislature guidance, the Court ruled that any reduction of
programs or offerings from the basic education program must be accompanied by an educational policy rationale. Id. at *26. The legislature may not eliminate an offering from

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the basic education program for reasons unrelated to educational policy, such as fiscal crisis or mere expediency. Id. 17. This Constitutional duty applies equally to online public schools authorized
under the Alternative Learning Experiences (ALEs) law, which is a vital component to the delivery of basic education for some children. B. 18. Online Public Schools are an Indispensable Component of Basic Education in Washington State and yet the State Dramatically Cut Funding. The State Legislature implemented ALEs to address educational deficiencies in
8 the general and uniform system of public schools. 9 19. 10 enacted the Digital Program Law. RCW 28A.150.262. The Legislature specifically found 11 that online learning courses, a form of ALEs, provide students with opportunities to study 12 subjects that may not otherwise be available and that they meet the instructional needs of 13 students who learn best from technology-based instruction methods, [and] students and 14 families seeking nontraditional learning environments. Id. For the students that rely on 15 online public school programs, they are not in any manner an enrichment but are an 16 essential alternative to the traditional public school that provide a basic education to some 17 students of the State. 18 20. 19 opportunities for students to access curriculum, courses, and a unique learning environment 20 that might not otherwise be available. The legislature supports and encourages online learning 21 opportunities. RCW 28A.250.005(1). 22 23
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ALE programs were formally recognized by the Legislature in 2005 when it
In 2011, the Legislature found that online learning, provides tremendous

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21.
School districts may claim funding for their students enrolled in online
programs only if they are offered by an online provider approved under RCW 28A.250.020 by the Office of the Superintendent of Public Instruction (OSPI), which approval is conditioned on a provider demonstrating that the programs meet the State's essential academic learning requirements. 22. Online public school programs are implemented through school districts. The
students enrolled in online schools are statutorily defined as full-time equivalent students and their districts receive their general appropriation funds as they do for students attending brick and mortar schools. RCW 28A.150.262. As part of the established substantive educational program, students in online public schools have the same correlative right to ample funding to equip them with the skills and knowledge mandated by the State Constitution. 23. Online courses and programs are now a widespread feature of the education
landscape in Washington State. According to a review conducted by OSPI in 2009, over 13,000 students received their basic education through online public schools. 24. According to OSPIs 2009 review, the top ten online programs expended about
$239,000 more to deliver basic education than they received in FTE funding. All but two operated at a financial loss. 25. Despite these already financially challenging conditions, in 2011 the
Legislature approved a 15% budget cut that targeted ALEs, including online public school programs. 26. This draconian budget cut to online programing is over and above the already
unconstitutional underfunding of basic education identified by the Supreme Court in

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McCleary. For example, the 2011 Legislature approved massive cuts to teacher and staff salaries of 1.9% and administrator salaries of 3%. McCleary, 2012 WL 19676, *17. Thus, the targeted cuts to online programming of 15%, in addition to these across-the-board salary cuts, hit online staff salaries particularly hard. School districts offering online programs employ additional credentialed teachers and administrative staff dedicated solely to their online programs. Because the most significant cost of an online program, as with traditional schools, is labor, the cuts resulted in a significant reduction in educators, thereby increasing the teacher-student ratio and severely diminishing the basic education offered to online public school students. 27. The Legislature justified the targeted cuts on the unsupported basis that online
public schools cost school districts less to administer. But there is no basis in fact for this conclusion. Further, because the rationale for the cuts were purely financial in nature, and unrelated to any educational policy, the cuts violate the Courts express mandate that reductions in spending be clearly justified on educational grounds. McCleary, 2012 WL 19676, *26 28. To the extent that the school districts offset the cuts from the funding they
receive for students in the traditional schools or from local levies, the cuts violate the Constitution in an additional way. The Legislature may not delegate its express legislative duties to school districts. Id. at *3. Furthermore, the McCleary Court held that the FTE for basic education in traditional schools is already unconstitutionally inadequate. Forcing school districts to rob Peter to pay Paul compounds the unconstitutional funding of basic education for all students in the public schools.

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29.
The budget cuts in online public schools force parents to make a deplorable
choice. Keep their children in the underfunded, deteriorating online programs, or return them to the brick and mortar school where most of Petitioners children once struggled academically, emotionally and developmentally. 30. Not only would this force these students out of the basic education program
suited to them, but it would also trigger 100% funding of the general apportionment for these students. Thus, the cuts negate any cost-savings. Not only has this unprecedented funding cut degraded online public schools, but if it is continued, online public schools will close and the cost-savings will be entirely lost. DECLARATORY JUDGMENT CLAIM 31. Petitioners incorporate the allegations contained in paragraphs 1 through 30 as
if fully set forth herein. 32. The Washington legislature has recognized that Article IX requires the State to
ensure that each child residing in our State receives a basic education described by our State Supreme Court in paragraph 12 of this Petition. 33. In January 2012, the Supreme Court ruled that the State has consistently
violated its Constitutional duty to amply provide a basic education and retains jurisdiction to monitor the 2012 Legislature and determine whether it complies with its paramount duty. Id. at *37. 34. The State's process for funding education is incompatible with its paramount
duty to amply fund basic education for all children. It does not first determine the amount of money it actually costs to provide the constitutionally required basic education to every child and then fully fund that amount. Instead, the State's process for funding education is to first
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consider how much of the State budget will be allocated for education as opposed to other State operations, and then funds that allocated education amount. 35. In 2011, the Legislature did not first determine the amount of money it actually
costs to provide the constitutionally required basic education to every child in online public schools and then fully fund that amount. In fact, the Legislature had before it OSPIs 2009 review of online programs that showed the States full allocation per pupil was insufficient to amply fund basic education, and could have only reasonably concluded it was severely underfunding online programs by cutting funding an additional 15%. 36. The State has chosen online public school programs as a means of delivering
basic education to children, many of whom cannot receive a basic education in a traditional school. The Constitution prevents the State from underfunding the basic education for these children every bit as much as children educated through a traditional program. 37. This Court should, accordingly, enter the following declaratory judgments to
prevent the State's ongoing violation of its paramount duty under our State Constitution: (a) The States paramount duty to amply fund the basic education of each and every student within its borders, includes students receiving that education in an online public school, which the Legislature formally approved in 2005 and encouraged students to attend as recently as 2011. RCW 28A.150.262, RCW 28A.250.005. (b) The State must fully fund the basic education of children enrolled in online public schools.

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(c) The State must restore the funding for students enrolled in online public schools to 100% of the current amount of the FTE, or as hereafter determined by the Legislature, or by the Supreme Court in McCleary. RELIEF REQUESTED Petitioners request the following relief from this Court: 1. 2. The declaratory judgment requested in paragraph 37 of this Petition; An Order requiring the State to fully fund the basic education of children
enrolled in online public schools; 3. An Order requiring the State to restore the funding for students enrolled in
online public schools to 100% of the current amount of the FTE, or as thereafter determined by the Legislature, or by the Supreme Court in McCleary; 4. An award reimbursing Petitioners attorney fees, expenses, and costs to the
fullest extent permitted by law or equity; and 5. Such other relief as the Court deems just and equitable.
DATED this 13th day of February, 2012 16 ELLIS, LI & McKINSTRY PLLC 17 18 19 20 21 22 23
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By: s/ Steven T. OBan Steven T. O'Ban WSBA No. 17265 Ellis, Li & McKinstry PLLC 2025 First Avenue, Penthouse A Seattle, WA 98121-3125 Telephone: (206) 682-0565 Fax: (206) 625-1052 Email: soban@elmlaw.com Attorneys for Petitioners ELLIS, LI & MCKINSTRY PLLC

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 vs. STATE OF WASHINGTON, Respondent.

ELLIS, LI & MCKINSTRY PLLC

ELLIS, LI & MCKINSTRY PLLC

ELLIS, LI & MCKINSTRY PLLC

ELLIS, LI & MCKINSTRY PLLC

ELLIS, LI & MCKINSTRY PLLC

PETITION FOR DECLARATORY JUDGMENT - 6

Article IX of the Washington State Constitution states: "It is the paramount

ELLIS, LI & MCKINSTRY PLLC

Art. IX, Sec. 1 confers on children in Washington a positive constitutional

PETITION FOR DECLARATORY JUDGMENT - 8

ELLIS, LI & MCKINSTRY PLLC

ALE programs were formally recognized by the Legislature in 2005 when it

In 2011, the Legislature found that online learning, provides tremendous

ELLIS, LI & MCKINSTRY PLLC

unconstitutional underfunding of basic education identified by the Supreme Court in

ELLIS, LI & MCKINSTRY PLLC

PETITION FOR DECLARATORY JUDGMENT - 11

ELLIS, LI & MCKINSTRY PLLC

ELLIS, LI & MCKINSTRY PLLC

PETITION FOR DECLARATORY JUDGMENT - 13

ELLIS, LI & MCKINSTRY PLLC

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