Wednesday, July 10, 2013

Washington Charter School Litigation, Part II

Yesterday, I posted on a new lawsuit challenging Washington's charter school law.  I haven't put my fingers on the complaint yet, but I did get some more details on the allegations.  Plaintiffs allege that the charter law violates the state constitution because:

1. It improperly delegates the State’s constitutional “paramount duty” to provide for the education of children within its borders to private organizations that are not subject to the requirements and standards in place to ensure that all children receive a constitutionally sufficient education.

2. It also violates the State’s paramount duty to make ample provision for the education of all children within its borders by interfering with the State’s progress toward complying with the Washington Supreme Court directive to the Legislature to fully fund basic educational programs by 2018, as set forth in the 2012 McCleary decision.

3. It unconstitutionally diverts public funds that are restricted to use for public common schools to private charter schools that are not subject to local voter control.

4. It violates the Constitution’s “general and uniform” provision because charter schools are not subject to many laws and regulations applicable to public schools, including many of the provisions defining a basic education.

5. It amends existing state law in a manner not permitted by the Constitution.

6. It violates the constitutional requirement that the superintendent of public instruction “have supervision over all matters pertaining to public schools.”

7. It violates the Constitution because it mandates the use of local voter-approved levy funds for a purpose other than the purpose for which the voters approved the levies.

As I noted yesterday, one of the more unique claims was the notion that it violates the state superintendent's constitutional duties because the statute places charter schools outside of the superintendent's authority.  The relevant constitutional clause states:

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.

Wash. Const. Art. 3, § 22.  To the extent plaintiffs' characterization of the charter school law is correct, they may have found a relatively unique and strong claim, although the net result could be to just require the state to rewrite the charter law and bring it more squarely under the purview of the state superintendent.  On the other hand, seting up an educational structure outside of the superintendent's authority may taint the entire statute and its purpose.


Cases, Charters and Vouchers | Permalink


Interesting ground, I agree. It seems that school reform litigators are seeing a clearer path to invalidation of the laws they disfavor through the technical procedural and structural requirements in state constitutions, as opposed to the more substantive rights-based provisions on which reform litigation has always been based (Cf., the recent voucher decision in Louisiana). I am less confident about this ground than I was about the one that won the day in Louisiana. In particular, it is difficult to see how the plaintiffs have standing to challenge a limitation on the superintendent's authority if the superintendent is not a plaintiff. It would be like an individual citizen challenging Congress's assignment to itself of command over the operations of one of the branches of the military. Clearly unconstitutional, but the proper plaintiff is the President.

Posted by: Scott Bauries | Jul 10, 2013 8:25:53 AM

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