NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Wednesday, November 14th, 2012

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.

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7 Comments

  1. Thank you Randy Dorn!

    # by Ruth L. :: November 14th, 2012 at 8:55 AM
  2. 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?

    # by Melissa Westbrook :: November 14th, 2012 at 3:46 PM
  3. Spot on analy­sis. Thanks so much for this write-up, I’ll be pass­ing it along to friends.

    # by Ralph Avoca :: November 14th, 2012 at 6:19 PM
  4. 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.

    # by Josh Kahan :: November 14th, 2012 at 10:35 PM
  5. 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?

    # by Charlie Mas :: November 15th, 2012 at 6:18 AM
  6. 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.

    # by Dan Overmitten :: November 20th, 2012 at 12:24 PM
    • You’re wel­come, Dan.

      # by Andrew :: November 20th, 2012 at 3:52 PM