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.

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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3 Comments

  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 23 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 […]

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