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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.

Friday, September 4th, 2015

Washington’s Supreme Court strikes down I-1240 (charter schools) in its entirety

Once again, the Washington State Supreme Court has ridden to the rescue of Washington’s beleaguered public schools system.

In a monumentally important 6-3 decision released late this afternoon, the Court struck down Initiative 1240, a charter schools measure voters narrowly passed in 2012, as unconstitutional in its entirety. The decision means that Washington’s experiment with charter schools is essentially over, as the law that allowed the schools to be set up is now completely unenforceable.

Six justices (Barbara Madsen, Charles Johnson, Susan Owens, Debra Stephens, Charlie Wiggins, Mary Yu) signed the majority opinion. Three justices (Mary Fairhurst, Steven González, Sheryl Gordon McCloud) dissented in part.

A King County Superior Court judge had previously invalidated one provision of the initiative, but upheld the remaining provisions. A majority of the Supreme Court has now reversed that decision, resulting in I-1240’s total demise.

The Court reasoned:

Our constitution directs the legislature to establish and fund common schools and restricts the legislature’s power to divert funds committed to common schools for other purposes even if related to education… The Charter School Act’s diversion of basic education funds allocated to the support of the common schools and common school construction funds is unconstitutional and void.

And contrary to what the Superior Court ruled, I-1240’s provisions aren’t severable:

The Act identifies charter schools as common schools and is expressly reliant on common school funding to support such charter schools. That a funding source is required for the existence of charter schools is self-evident. As discussed above, the Act specifically intends to use common school funding allocations as that source. Without a valid funding source the charter schools envisioned in 1-1240 are not viable. Moreover, I-1240’s voters’ pamphlet stressed that the funding for charter schools will come from existing funding sources in the form of a “shift [in] revenues” from “local public school districts to charter schools.” In sum, without funding, charter schools are not viable. Nor can it be believed that voters would have approved the Charter School Act without its funding mechanism.

In conclusion:

The portions of 1-1240 designating charter schools as common schools violate article IX, section 2 of the Washington Constitution and are invalid. For the same reason, the portions of 1-1240 providing access to restricted common school funding are also invalid. These provisions are not severable and render the entire Act unconstitutional. We affirm in part and reverse in part and remand for an appropriate order.

This is a huge victory for public education that is worth celebrating. We congratulate our friends at the League of Women Voters of Washington, the Washington Education Association, El Centro de la Raza, and the Washington Association of School Administrators for having prevailed in this landmark case.

We extend our thanks to Paul Lawrence and Pacifica Law Group for their fine representation of the plaintiffs as well.

I-1240 was backed by Bill Gates, Paul Allen, Alice Walton (a Wal-Mart heiress), Nick Hanauer, Connie Ballmer, and several other incredibly wealthy individuals, who collectively gave $11 million to fund a slick, aggressive campaign to persuade a slim majority of voters to experiment with charter schools.

Progressives raised less than $1 million to wage an opposition campaign, with most of that money coming in late (in October, just as ballots were being mailed). Despite the resource disparity, the vote was very close. After the initiative went into affect, the aforementioned plaintiffs sued to have it invalidated.

Prior to I-1240’s passage, Washingtonians had decisively voted three times to reject charter schools, with the last vote having taken place in 2004.

“The Supreme Court has affirmed what we’ve said all along – charter schools steal money from our existing classrooms, and voters have no say in how these charter schools spend taxpayer funding,” said Kim Mead, president of the Washington Education Association, in a statement lauding the decision.

“Instead of diverting taxpayer dollars to unaccountable charter schools, it’s time for the Legislature to fully fund K-12 public schools so that all of Washington’s children get the quality education the Constitution guarantees them,” she added.

What will happen to the state’s nine charter schools (eight of which just opened only recently) is unclear but presumably, they’ll have no choice but to become private schools. The Legislature is out of session and not likely to reconvene until January, so it will not be able to bail out the charter school operators.

Even when it does reconvene, House Democrats and Governor Jay Inslee are unlikely to be interested in reinstating the charter schools experiment, which siphons public funds away from the state’s public schools. I-1240’s backers had tried to characterize the charter schools authorized by their initiative as common schools, thinking that this would ensure I-1240 would pass constitutional muster.

The Supreme Court didn’t buy it, ruling:

[B]ecause charter schools under 1-1240 are run by an appointed board or nonprofit organization and thus are not subject to local voter control, they cannot qualify as “common schools” within the meaning of Article IX.

The Court relied on its holding in School District No. 20 v. Bryan, a case dating back to 1909. In that case, the Supreme Court defined common schools as follows:

[A] common school, within the meaning of our Constitution, is one that is common to all children of proper age and capacity, free, and 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 select qualified teachers, with powers to discharge them if they are incompetent.

Emphasis is ours.

Nothing in the Washington State Constitution prohibits the establishment of private schools, so the schools that have been set up under I-1240 don’t necessarily have to shut down. But as a result of this decision, they will no longer be able to siphon money away from the state’s publicly administered common schools.

They will need to find private sources of funding.

Maybe they can get it from the wealthy individuals who financed I-1240. Those folks certainly have the money to support the operation of a few distinguished private schools. If they were willing to open their checkbooks for a campaign, surely they’ll do so again now to help these charter schools flourish as private schools.

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  1. How does this affect online public schools operated by for-profit companies with public money like K12, Connections Academy, Insight and Ecot?

    # by Mary McCarthy :: September 4th, 2015 at 6:56 PM
  2. Instead of spending so much time and energy to undo schools that help children who don’t learn well in the public schools, you should try to figure out now how to help those this action dislocated. Obviously public schools weren’t teaching these kids in a way they could succeed and the parents were frustrated with failing grades. $13,000 per child in public schools is a ton of money and 2/3 to double what private schools work with, so why do public schools fail so miserably? Now the Legislature just funded public schools a couple more billion. How is this new money going to make changes that will help kids and not fund outrageously expensive new buildings and administrators and line union pockets?

    # by Stephanie Parker :: September 4th, 2015 at 7:32 PM
  3. This is a fear-based victory. The public schools and unions are afraid that “non-certified” teachers and private individuals who aren’t from the establishment can and will do a better job at educating children than they have done, are doing, and will do. Although a “victory” for public schools and the union (some), this is a major defeat to LIBERTY and justice for ALL.

    # by Justin Barton :: September 9th, 2015 at 9:34 AM

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  1. […] Washington’s Supreme Court strikes down I-1240 (charter schools) in its entirety […]

    Ping from September 7, 2015 | :: September 6th, 2015 at 7:42 PM