The Washington State Supreme Court’s ruling earlier this month holding the state’s charter school law unconstitutional has sent shock waves through Washington’s educational establishment, handed charter critics a high-profile victory, and left the schools’ supporters scrambling to keep the state’s small, relatively young charter school sector alive.
In its, the court found that the law approved by voters through a 2012 ballot measure, Initiative 1240, improperly designated charters as “common schools,” and that the schools were not therefore entitled under the state constitution to certain state funds they presently draw on.
Despite the prominent setback for charters, it might be difficult for skeptics of the autonomous, publicly funded schools to create any momentum outside Washington from the decision. For example, in the majority opinion, the justices relied heavily on state precedent regarding the definition of common schools set down in a 1909 state high court ruling. In addition, translating a victory in one state into other states’ legal and political systems won’t necessarily be easy.
All the same, the court’s Sept. 4 ruling delivered a clear rebuke to the state’s charter law that might provide charter critics elsewhere some ammunition.
And it represents the first time that a state supreme court has invalidated an entire charter school law, according to the National Alliance for Public Charter Schools. In a narrower 2011 case, the Georgia Supreme Court ruled in Gwinnett County School District v. Cox that the state Charter School Commission improperly approved charters over the objections of local school boards. However, Georgia voters approved a constitutional amendment in 2012 subsequently permitting state-backed charters.
Charter supporters argue that there are potential avenues for Washington legislators to provide public funds to the state’s nine charter schools aside from the general fund budget, even as they vow to keep the schools open through other means such as private donations.
There are ways that the supreme court overlooked to constitutionally fund charter schools in Washington state, said Thomas Franta, the executive director of the Washington State Charter School Association. “These are public schools, and we believe they are absolutely entitled to public funding,” he said.
Meanwhile, critics such as the 85,000-member Washington Education Association, which was a party to the court case, said the victory protected taxpayers who pay for charters but lack the power to oversee them appropriately.
“Public schools should truly be public,” said Rich Wood, a WEA spokesman.
Gov. Jay Inslee, a Democrat who opposed the 2012 ballot initiative to permit charters, so far has resisted calls to convene a special session to work out what’s next for the state’s charters, which serve 1,200 students.
The charter ruling is part of a tumultuous political environment for education in the Evergreen State. It’s also the second time in recent years that the court has made big headlines with a ruling about schools. Last month, the court levied a daily $100,000 fine on the state for failing to adequately increase K-12 spending in response to its 2012 ruling in.
The majority opinion in the charter case, written by Chief Justice Barbara Madsen, stated that charters are intended to provide parents with “more options,” then added: “But the new schools came with a trade-off: the loss of local control and local accountability.”
Absent their designation as common schools, charters would lose their funding source from the state’s general budget and therefore no longer be “viable,” Madsen concluded.
“[B]ecause charter schools under 1-1240 are run by an appointed board or nonprofit organization and thus are not subject to local voter control, they cannot qualify as ‘common schools,’” Madsen wrote.
In a partially dissenting opinion, Justice Mary Fairhurst wrote that while she agreed that charter schools were not strictly common schools as set down in state legal precedent, they were still legally eligible to some sort of funding by the state, like other public schools. In addition, charters’ funding source was a separate legal question from the schools’ standing under the state constitution, she argued.
“Nowhere does the act identify a source of funding, it merely states that charter schools must ‘receive funding based on student enrollment just like existing public schools,’” Fairhurst wrote.
The justices returned the case to King County Superior Court to write an order enforcing their ruling by Sept. 26. As of this week, charter backers planned to ask the state supreme court to reconsider its ruling.
Winners and Losers
Those who warned three years ago that the 2012 charter law would distort public education in the state have been vindicated by the ruling, the WEA’s Wood said. Non-traditional public schools that aren’t charters receive public funding, yet are subject to appropriate oversight, he noted.
“The law requires them to be accountable to the voters and the taxpayers who fund them, not just to the small handful of parents who send their children to them,” Wood said.
Last week, the Washington State Charter School Commission decided to explore whether there is a legal remedy to allow charters to remain open for the rest of the school year.
Franta, of the state charter school association, criticized the justices for saying that since charters lacked traditional governance such as elected school boards they were free from meaningful oversight.
“There is more accountability in this public charter school sector than exists anywhere else in the state of Washington,” said Franta, adding that “there is no greater evidence of local control” than where parents choose to send their children to school.
Franta pledged that whether the legislature finds a new way to provide charters with public funds, or if his group has to raise the $14 million needed to operate the charters this school year from private donors, the schools will remain open.
In addition, he suggested that legislators could find avenues in the budget outside the general fund, such as a separate trust fund, to create a state revenue stream for charters that falls outside the court’s ruling.
The ruling’s unique status across the K-12 legal landscape has also raised questions about its implications beyond the state and for the charter sector in general.
The WEA’s Wood cautioned that other states simply don’t have the kind of constitutional language regarding education that would play a factor in Washington. For example, Article IX, Section 2 of the state’s constitution, which the high court says the 2012 law violates, specifies the requirement for common schools and their funding source.
Still, Wood said that to the extent the court’s ruling stressed the need for proper governance and oversight of state school spending, “I would think [charter opponents elsewhere] could draw inspiration from it.”
He added that the union would have no qualms if charter schools turned to private funds to stay open.
But the court’s blinkered insistence on a century-old model of elected local school boards as the key to proper governance actually makes the ruling narrow and unhelpful to charter foes generally, said Todd Ziebarth, the senior vice president for state advocacy at the National Alliance for Public Charter Schools.
“The circumstances are unique with its constitution and an elected court in a blue state,” Ziebarth said.
Asked for his views on enlisting private donations to keep charters open, Ziebarth said he supported it, but only as a short-term tactic.
A version of this article appeared in the September 16, 2015 edition of Education Week as Shock Waves From Ruling on Charters