Recently, the Washington Supreme Court declared the state’s hard-won charter school law unconstitutional. The case threatens more than 1,200 kids and their families who don’t know what will happen to their schools. It is hard to understand why the court arrived at its decision at this point in the year.
Even more sobering, the court’s decision could pave the way for a lot of other important programs focused on needy children to end up on the chopping block. It could block subsidies for early-childhood education programs, postsecondary enrollment options, community colleges or social services. It could also be used to close tribal schools, vocational schools, or schools that require collaborations between two or more districts.
The people participating in or running all these other programs may want to review the recent decision and see where it may leave them.
The court decision had three parts. First, it decided charter schools are not “common schools,” i.e., public schools, and must be overseen by elected school boards. Second, no funding from state education coffers, even funds outside the common school fund, can be directed to anything other than a common school. Third, the entire charter law must be voided because, as the decision alleged, the state cannot separate the funding streams in the state budget sufficiently to ensure charters don’t benefit from money that should go to common schools.
Charter advocates anticipated the first two parts of this argument. They built into their law mechanisms and guidance for how charter schools could be funded fairly and adequately from sources outside the common school fund, if necessary. They always assumed that, if charter schools were found not to be common schools, parts of the charter law outlining how schools operate and are authorized could be separated from the funding portion of the law. This would allow the legislature to use any of the other mechanisms it already uses to fund other programs and services that do not fit neatly within the definition of common schools.
The court’s ruling was based on a 1909 decision, School District No. 20 vs. Bryan, which mandated that education money must go only to common schools, and elected school boards must directly oversee all of them. The Washington Supreme Court also argued that charters are not common schools because of the latitude they receive. That could undermine efforts to allow other public schools to operate under less regulation as well, especially schools seeking waivers.
I suspect the state’s more sober leaders won’t tolerate that much collateral damage just to block the will of the voters on charters. That is one of the reasons I remain optimistic for Washington’s charter schools in the long run.
There is some hope of legal remedy in the long run. Three members of the state’s Supreme Court did not agree with the decision, and the written dissent outlines the types of programs and funding streams that are put at risk if anyone applies this approach more broadly. Hopefully, that signals a chance for the court to reconsider the decision. If not, it likely indicates one of the directions in which charter advocates will have to refocus their future work.
In the meantime, charter advocates are securing philanthropic funding that can allow schools to continue operating as this plays out. They will also likely to file a motion to reconsider. Finally, charter school parents and their supporters are urging the governor to call a special session of the legislature to craft a solution, like those outlined in the dissenting justices’ opinion.
Today there are 1,200 children and their families that are going to insist the state fix this. I stand in solidarity with them all, and hope their schools are given the chance to succeed. Before too long, the list of people and groups standing with them is likely to grow, and not just because it is the right thing to do for the sake of these children.
Now that we are more than two decades into this fight, I’m sure the charter advocates will pursue every possible strategy to the end.