Lawmakers in Washington state have passed a bill to resuscitate the state’s fledgling charter school sector six months after the state’s supreme court ruled the original law was unconstitutional.
It was the first time that a state’s high court has ruled wholesale against a charter law.
While charter school advocates celebrated the hard-fought victory they squeezed out of the legislature in the twilight of the regular session, several lawmakers in both chambers raised the specter of a second legal challenge, saying they’re not sure the revised law would pass constitutional muster.
But before the new measure even meets that test, it must first get past Democratic Gov. Jay Inslee.
Charter advocates said they are optimistic the governor will not veto a bill that won bipartisan approval, even though he has not been a strong charter supporter. If the measure becomes law, the state’s nine charters—which have stayed open as specialized district programs and home-schooling centers—will be able to reopen again as charter schools in time for the 2016-17 school year.
Washington state’s charter school law has had a short and tumultuous history.
First passed by voter referendum in 2012, the charter law was struck down by the state’s supreme court last fall. The court ruled that charters did not qualify as “common” schools—basically, public schools—because they are not overseen by locally elected school boards and, therefore, were not eligible to draw money from the state’s general fund.
A bill championed by advocates to revive the charter law by creating a new funding source for charters, the Opportunity Pathways Account, was passed by the Republican-controlled Senate in January. But it stalled in the House education committee until a Democratic lawmaker used a procedural maneuver to resuscitate it and bring it to the House floor before the end of the session.
The bill cleared the House on a bipartisan vote, 58-39, and then passed the Senate on a vote of 26-23 on the last day of the session.
Passing Legal Muster
However, while voting, several Democratic lawmakers said that without addressing the fact that charter schools are overseen by non-elected boards, the measure to retool the law wouldn’t likely withstand the scrutiny of the state Supreme Court.
“It tries to pretend that the only thing that was going on here was that the money was coming out of the wrong account and that’s all we need to do to fix it,” Jamie Pedersen, a Democrat, said during the Senate vote. “I ... expect we will be seeing it again when it comes back from the Supreme Court.”
In its decision in League of Women Voters v. Washington, the state high court ruled that charters are not common schools because they are overseen by appointed boards, much like a nonprofit organization, which is one of the major differences between charter and regular district schools nationally.
Under Washington’s original law, charter schools could be authorized by school districts, as well as by a specially created statewide authorizing board which was made up of appointed members from the state’s business, academic, and nonprofit communities.
The measure to revamp the law would reinstate the statewide authorizing commission and add new members: the chair of the state board of education, and the state superintendent, who is elected.
“It helps to shore up the sector against any potential legal action down the road, that there are now these elected officials that are also on that charter commission and are overseeing the performance of the charter sector,” said Thomas Franta, the chief executive officer of the Washington State Charter School Association.
The new measure would also bar charter schools from accessing local levy funding and district schools from converting into charters, provisions unpopular with charter advocates.
Despite those concessions, lawmakers and other groups that oppose charter schools argued that the effort to restore the law has been a distraction from more pressing issues—namely, funding for the rest of the public education system.
The same year voters passed the ballot initiative to create charters, the state’s supreme court ruled in a case called McCleary v. Washington that lawmakers were failing to adequately fund public education. Last August, it declared the legislature in contempt of court, and levied a daily $100,000 fine on the state.
Bigger Funding Challenges
Although Gov. Inslee signed a bill last month committing lawmakers to design and approve a plan for satisfying the court next year, many, including Randy Dorn, the state’s superintendent, have accused lawmakers of punting on the issue.
“There’s quite a bit of disappointment with the legislature’s decision to continue to delay complying with the McCleary decision and to instead spend time on this charter school law,” said Richard Wood, a spokesman for the Washington Education Association.
Wood said the coalition of organizations that brought the original lawsuit against the charter school law, including the WEA, has not decided whether to challenge the retooled measure if it becomes law.
If they do, they might prevail a second time, said Hugh Spitzer, a law professor at the University of Washington.
“It’s possible that the opponents of this revised charter school system will be able to successfully argue that these charter schools are still not compliant with the general and uniform requirement” of the constitution, which was an argument the supreme court didn’t fully address the first time around, Spitzer said.
Many state constitutions compel the state to provide a single and uniform system of public schools, a requirement that is often used to bring legal challenges to school choice programs.
