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.