Friday, February 24, 2017

Washington Charter Schools Back on Trial

Two years ago, in League of Women Voters v. State, the Washington Supreme Court declared the state's charter school law unconstitutional.  The court reasoned that the state constitution requires the state to create and fund “a general and uniform system of public schools," and “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.”  Because charters schools are not "common schools" and yet receive common school funds, the court found the statute unconstitutional.

The Washington legislature has since passed new charter school legislation and plaintiffs sued again.  Last week, a Washington trial court rejected their claims.

Plaintiffs raise very similar claims as in the first litigation: a) that the statute violates the constitutions general and uniform requirement (along with its funding scheme); b) that the charter law improperly delegates the authority to charter schools and deprives the Superintendent of Public Instruction’s of power.

The King County Superior Court concluded that charter schools can fall within the "the general and uniform system of public schools" and, thus, the act was permissible.  The court's support for this conclusion was largely premised on the notion that charters are public schools and credits from them are transferable to traditional public schools.  

This, however, should be largely beside the point.  It may answer the question of whether charters are public schools, but it does not answer whether they common schools or part of a general and uniform system.  To be fair, a California appellate court followed a rationale similar to this trial court several years ago in upholding a California charter statute.  But that line of reasoning would appear to be inconsistent with the Washington Supreme Court's holding in League of Women Voters.

 

A more compelling argument in support of the charter law is simply that it need not comply with the general and uniform provision.  According to the Seattle Times, the new charter schools are funded out of lottery proceeds, which would eliminate one of the major problems from the prior statute.  This fix aside, however, a major concern moving forward would be the fungibility of money.  Regardless of where the money comes from, the typical trend in other states has been to drain money from the traditional public school budget as more money goes into other education programs like charters and vouchers.

My contention has long been that the charter statute faces a far more fundamental problem regarding supervision that cannot be mooted.  The Washington constitution creates the Superintendent of Public Instruction and vest specific supervisory powers in that office.  In other words, the Superintendent is a constitutional officer that neither the legislature nor the voters can mess with, save a constitutional amendment.  In so far as the Washington legislation attempts to establish a charter school system outside the supervisory authority of the Superintendent, it is inherently and diametrically at odds with the state constitution.

http://lawprofessors.typepad.com/education_law/2017/02/washington-charter-schools-back-on-trial.html

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