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School Choice & Charters Opinion

Wash. State Supreme Court’s Puzzling Rationale for Outlawing Charter Schools

By Rick Hess — September 10, 2015 4 min read
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Last week the Washington state Supreme Court chose the Friday afternoon before Labor Day to declare the state’s charter law unconstitutional. The 6-3 opinion turned on the Washington high court’s bizarre ruling that charter schools do not qualify as “common” schools. The court waited nearly a year— until shortly after schools had opened and the school year was underway— to tell more than 1,000 families at nine charter schools that their schools were no longer legal.

In finding charter schools unconstitutional, the Washington Supreme Court broke with the courts in California, Colorado, Michigan, New Jersey, Ohio, and Utah— all of which had rejected similar attacks under their own state constitutions. The Washington high court majority claimed that it had no choice, that its hand was forced by Article IX, section 2 of the state’s constitution because charter schools are “not common schools.” So, let’s take a look at Washington’s supposedly restrictive definition of “common schools.” Article IX, section 2 provides:

The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.

It turns out that the language is actually quite accommodating. In order to reach the astonishing determination that this loose language somehow prohibits charter schooling, the Washington court reached back to a 1909 case, School District No. 20 v. Bryan and quoted:

["Common schools" are] common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.

There are multiple problems with this as a justification for outlawing charter schools. For one thing, school boards are not the only way for citizens and voters to control of their schools; the Court simply dismissed the relevance of the democratic control exercised through parental choice and charter school boards. Second, there’s substantial evidence that district governance does less to empower qualified voters than school district employees who dominate school board elections. That’s no reason for courts to question the value of such elections, but it certainly argues against throwing out a constitutionally adopted charter school statute as a threat to some romanticized notion of electoral control. Third, the notion that Washington’s school districts are sacrosanct because they allow the public to carefully select teachers and discharge incompetent teachers reads like a twisted joke. The court’s rationale serves as an open-ended, extra-constitutional rejection of all challenges to the education monopoly.

There’s also a larger issue here. As I wrote in Phi Delta Kappan more than a decade ago:

The phrase "public schooling" has become more a rhetorical device than a useful guide to policy. As our world evolves, so too must our conception of what "public" [or, here, "common"] means. . . Nonetheless, rather than receiving the requisite consideration, "public schooling" has served as a flag around which critics . . . can rally. It is because the phrase resonates so powerfully that critics of proposals like charter schooling, voucher programs, and rethinking teacher licensure have at times abandoned substantive debate in order to attack such measures as "anti-public schooling."

Now, if the Washington constitution offered a definition of “common” which clearly ruled out charters, that’d be one thing. I might disagree, but such is life. The issue here, however, is that the constitutional language is actually quite broad. What the court has done is take some ad hoc editorializing from a 1909 decision as a permanent guide as to what constitutes permissible school governance. This isn’t even the rule of stare decisis, since there were no charter schools or school choice plans in 1909 upon which to render a verdict. This is simply the court taking broad constitutional language and reading new restrictions into it in order to overturn a democratic decision.

The goofiness of Washington high court’s decision suggests that a bit of a refresher on charter schooling may be in order. After all, charter schools are, by definition, public schools. They are creations of the state, authorized by state-approved entities, subject to state regulation, and funded with state funds. In legal terms, the only real difference between public charter schools and traditional district schools is that district schools are created and overseen by a state-recognized local monopoly while charter schools are created and overseen by a state-recognized authorizer. Charter schools must abide by the same rules governing religion in public schools, cannot select their students, cannot charge tuition, and must provide mandated services.

In practical terms, none of the key distinctions between district schools and charter schools make charters obviously less “common.” States can choose to free charter schools from some regulations (of course, they can do the same for all schools— except that efforts to do so are typically politicked to death). Charter schools have performance agreements, meaning they get shuttered if they fail to perform acceptably. Charter schools are funded based on the number of students who enroll; if families don’t choose a particular charter school, it doesn’t get funded.

In short, charter schools are very much public schools— except with some added autonomy and accountability. One can reasonably debate the desirability of charter schools and could craft constitutional language that would make them illegal— but a slight majority of Washington voters chose to adopt charter legislation, and it seems clear to me that the law is consistent with a fair reading of the Washington constitution.

Note: A version of this post previously ran in National Review.

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