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Randy Dorn says I-1240 is unconstitutional; he may go to court to overturn the initiative

Washington Superintendent of Public Schools Randy Dorn is contemplating legal action against I-1240, the charter schools initiative financed by Bill Gates, Paul Allen, and Jeff Bezos, Q13 Fox’s C.R. Douglas reported last night.

“Creating a new agency under the governor’s office to oversee ten to forty public schools, to me, is a clear violation of the Constitution,” Dorn told Douglas, one of Seattle’s most respected political reporters.

Dorn, whose reelection was assured after he received more than fifty percent of the vote in the August winnowing election, seems intent on moving forward with a lawsuit. He says he wants to talk to the attorney general’s office before he makes a move. But the A.G. is responsible for defending initiatives that the voters pass. They’re required to do that. They would have to defend against any suit Dorn files. So we’re not sure why Dorn would consult with them about legal strategy.

If Dorn wants the initiative overturned, he’ll need to engage his own counsel, like the Democratic lawmakers who filed suit to have I-1053 thrown out as unconstitutional. (They and the other plaintiffs retained Paul Lawrence of the Pacifica Law Group to represent them in court).

Dorn does not have to do this on his own… he could partner with the Washington Education Association and other groups to mount a legal challenge.

Both Governor Chris Gregoire and Lands Commissioner Peter Goldmark have seen fit to retain their own counsel to represent them when they disagreed with current Attorney General Rob McKenna’s position.

For instance, Chris Gregoire is represented in the case against I-1053 by Michele Radosevich. Gregoire wants the courts to decide whether I-1053 is constitutional or not, rather than dismissing the case against the measure on a technicality, which is McKenna’s preference. Radosevich has articulated this position in both King County Superior Court and the state Supreme Court on Gregoire’s behalf.

Peter Goldmark, meanwhile, hired David A. Bricklin to take Rob McKenna to court two years ago because McKenna had refused to file an appeal on Goldmark’s behalf as he was obligated to. (Bricklin ultimately won the case for Goldmark).

Dorn is not the only one who thinks I-1240 is unconstitutional. Respected scholar Hugh Spitzer, who teaches constitutional law at the University of Washington, also holds that view. And we find Spitzer’s arguments compelling.

Article IX of our state Constitution uses some surprisingly specific language in spelling out how the state is to provide for the education of Washington’s youth. Consider Section 2 of that article:

SECTION 2 PUBLIC SCHOOL SYSTEM. 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.

The authors of I-1240 claim that their initiative does not violate this provision of the Constitution. They even inserted that claim into the text of the initiative:

(m) Public charter schools, as authorized in chapter . . . Laws of 2013 (this act), are “common schools” and part of the “general and uniform system of public schools” provided by the legislature as required by Article IX, section 2 of the state Constitution.

But the existence of this language in I-1240 does not magically make I-1240 constitutional. As Spitzer wrote last month:

The State Supreme Court wrote that the Constitution’s drafters meant for Common School Fund money to be applied exclusively to schools that were uniform in character and controlled by local school boards and county superintendents who picked the principals and teachers. Justice Stephen Chadwick wrote that a common school must not only be open to all children but must also be “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 selected qualified teachers, with powers to discharge them if they are incompetent.” Justice Chadwick pointedly added that the Legislature’s calling a school a “common school” didn’t make it one.

Emphasis is his. We concur that I-1240 attempts to set up special schools that don’t actually fall within the “general and uniform system of public schools” the Superintendent of Public Instruction is supposed to oversee. And that brings us to Article III, Section 22, the basis for Superintendent Dorn’s comments:

SECTION 22 SUPERINTENDENT OF PUBLIC INSTRUCTION, DUTIES AND SALARY. The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.

Note the presence of the words “shall” and “all”.

The Superintendent is to have supervision over all matters pertaining to public schools. Period. That is what the Constitution says.

If the charter schools I-1240 sets up are in fact public schools (as proponents have claimed they are), then the Superintendent must have authority over them. But guess what? I-1240′s language puts a brand new commission in charge of supervising the charter schools that I-1240 would create. The Superintendent of Public Instruction is given no role at all. Take a look:

NEW SECTION. Sec. 208. WASHINGTON CHARTER SCHOOL COMMISSION.

(1) The Washington charter school commission is established as an independent state agency whose mission is to authorize high quality public charter schools throughout the state, particularly schools designed to expand opportunities for at-risk students, and to ensure the highest standards of accountability and oversight for these schools. The commission shall, through its management, supervision, and enforcement of the charter contracts, administer the portion of the public common school system consisting of the charter schools it authorizes as provided in this chapter, in the same manner as a school district board of directors, through its management, supervision, and enforcement of the charter contracts, and pursuant to applicable law, administers the charter schools it authorizes.

(2) The commission shall consist of nine members, no more than five of whom shall be members of the same political party. Three members shall be appointed by the governor; three members shall be appointed by the president of the senate; and three members shall be appointed by the speaker of the house of representatives. The appointing authorities shall assure diversity among commission members, including representation from various geographic areas of the state and shall assure that at least one member is a parent of a Washington public school student.

(3) Members appointed to the commission shall collectively possess strong experience and expertise in public and nonprofit governance; management and finance; public school leadership, assessment, curriculum, and instruction; and public education law. All members shall have demonstrated an understanding of and commitment to charter schooling as a strategy for strengthening public education.

(4) Members shall be appointed to four-year, staggered terms, with initial appointments from each of the appointing authorities consisting of one member appointed to a one-year term, one member appointed to a two-year term, and one member appointed to a three-year term, all of whom thereafter may be reappointed for a four-year term. No member may serve more than two consecutive terms. Initial appointments must be made no later than ninety days after the effective date of this section.

(5) Whenever a vacancy on the commission exists, the original appointing authority must appoint a member for the remaining portion of the term within no more than thirty days.

(6) Commission members shall serve without compensation but may be reimbursed for travel expenses as authorized in RCW 43.03.050 and 43.03.060.

(7) Operational and staff support for the commission shall be provided by the office of the governor until the commission has sufficient resources to hire or contract for separate staff support, who shall reside within the office of the governor for administrative purposes only.

(8) Sections 209 and 212 of this act do not apply to the commission.

Not surprisingly, the authors of I-1240 also put in language that tries to make the initiative look like it complies with Article III, Section 22:

(5) Charter schools are subject to the supervision of the superintendent of public instruction and the state board of education, including accountability measures, to the same extent as other public schools, except as otherwise provided in chapter . . ., Laws of 2013 (this act).

This language is meaningless. How is the superintendent in charge here, given that the authors of this initiative have set up a separate, “independent state agency” that has the power to “administer the portion of the public common school system consisting of the charter schools it authorizes”?

Administration of public schools is the Superintendent’s job. The Constitution is specific: “The superintendent… shall have supervision over all matters pertaining to public schools.” The founders went out of their way not to be vague. Consider how powerful that sentence is. The word choice is unequivocal.

But the authors of I-1240 clearly made a deliberate decision to ignore the Constitution because they do not want Randy Dorn having any control or involvement in the administration of these new schools. The text of I-1240 acknowledges that the position of superintendent exists and has authority over all schools, but it’s a sop. Section 208 of the measure awards power to oversee the charters to a commission the superintendent has no authority or control over.

We believe I-1240 is unconstitutional on multiple grounds and deserves a legal challenge. If such a challenge is brought, we will enthusiastically support it.

We need to put an end to initiatives bought and paid for by powerful interests that do an end run around our Constitution. Our plan of government has to mean something, or before long, it’s just going to be a scrap of paper.

7 Comments

  1. Ruth L.
    Posted November 14th, 2012 at 8:55 AM | Permalink

    Thank you Randy Dorn!

  2. Posted November 14th, 2012 at 3:46 PM | Permalink

    Good work here. A couple of things to note:

    - actually OSPI does have one single role in charter schools – they help figure out the financial end of the funding (which should be fun given we already underfund the schools we already have)

    - also, thank you for printing entire sections of the initiative because you included one KEY piece, namely:

    “Sections 209 and 212 of this act do not apply to the commission.”

    Yup, two whole sections of the initiative do NOT apply to the Charter Commission. Section 209 outlines how the other authorizers – school boards – are to look at charter applications. The Charter Commission? Who knows?

    Section 212 is about oversight and guess what? School Boards get their oversight from the Board of Education. Who oversees the Charter Commission? No one. Not the people who appoint them, not OSPI, not the BOE. They are fairly powerful in what they can do.

    - Lastly, there are several other legal issues with 1240, not just constitutional. Like, is it legal to allow public entities to sell public land for less than it is worth? To force a district out of a building and they can’t charge rent?

  3. Ralph Avoca
    Posted November 14th, 2012 at 6:19 PM | Permalink

    Spot on analysis. Thanks so much for this write-up, I’ll be passing it along to friends.

  4. Josh Kahan
    Posted November 14th, 2012 at 10:35 PM | Permalink

    A lawsuit is clearly justified since charter schools do not meet the definition of the term “common.” The typically first definition of this word in most dictionaries is: “shared by everyone.” Charter schools can exclude kids with learning disabilities, physical challenges, and behavior problems. They are therefore not truly “shared by everyone. ”

    Charter schools will not be “uniform in character” as the State Supreme Court requires, but will often be schools with demographics quite different from public schools. This desire to be isolated from “problem children” is a primary motivator by many parents who sponsored and supported 1240.

  5. Charlie Mas
    Posted November 15th, 2012 at 6:18 AM | Permalink

    Our constitution sometimes protects us from voting away our rights. Let’s hope it does so in this case. The initiative, as written, creates a completely un-accountable commission that makes ALL of the decisions about charter schools and gives them carte blanche about how they make them.

    They are free to do as they please – even violate the provisions of the law – and there is no appeal and no way to hold them accountable. The initiative provides no process for removing members of the commission.

    Also, am I the only one who finds it odd that the commission members are appointed by the governor, the speaker of the state house, and the lieutenant governor? And why does the initiative refer to the lieutenant governor in his role of President of the State Senate? Why didn’t they just say “Lieutenant Governor”?

    The initiative was sloppily written. It is full of holes. There are no safeguards whatsoever. Read a few sections and ask yourself “What if it doesn’t happen that way?” and you will see that there are no protections. This came from ALEC, right?

  6. Dan Overmitten
    Posted November 20th, 2012 at 12:24 PM | Permalink

    I REALLY appreciate your inclusion of pertinent law. This article will be filed with my numerous other charter ones. I’ve watched as the EMOs (Education Management Organization) have spread across the country. I’m new to NPIA and am impressed so far.

  7. Andrew
    Posted November 20th, 2012 at 3:52 PM | Permalink

    You’re welcome, Dan.