Wednesday, September 9, 2015
Last week, the Washington Supreme Court in League of Women Voters v. State held that Washington’s charter school statute was unconstitutional. Its reasoning was straightforward. First, the state constitution mandates that the state create and fund “a general and uniform system of public schools.” Second, the constitution further provides that “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.” Third, charter schools are funded out of the common school fund. Fourth, charter schools are not “common schools” because: a) they are not subject to the same rules and oversight as the other public or common schools in the state, b) they are governed instead by a charter school board; and c) that charter school boards are not elected by the people, but appointed or selected. As the Washington Supreme Court had established in a previous case, “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.” Thus, in short, the charter school legislation is unconstitutional because it directs common school funds to schools that are not “common schools.”The decision did elicit a dissent on how the charters are funded. The dissent agreed that charters are not common schools, but argued that they are not funded through the common school fund. Rather, they are funded through the general fund and, thus, the statute is constitutional.
The court’s holding is both surprising and unsurprising. When the case was first filed and argued, I remarked here and here that Washington’s explicit constitutional structure--which mandated that the superintendent control public schools and that all common schools be accountability within the system established under the superintendent—would spell trouble for the state. Most state constitutions do not specify the superintendent as a constitutional officer or dictate a particular governance structure. But since Washington’s does, this was one aspect of education the state could not toy with. The charter school statute, however, did exactly that. For this reason, it would have been hard for the court to uphold the charter school legislation and remain true to the constitution. Kudos to the Washington Supreme Court for carrying out its duty faithfully.
The decision, however, was surprising in its willingness to carefully circumscribe the meaning of common school. This term is potentially flexible in the way that superintendent’s powers and educational accountability structures are not. Other states, including California, have been willing to fudge on the meaning of “common schools” so as to fit charters within it--although my reading of those cases is that they are driven more by a desire to allow states deference in pursuing educational innovations than they are by any real concern with the meaning of common school. The mandate of a “uniform system” of common schools only makes it more difficult to classify charters as common schools. Even if they are common schools in some general sense, they are by no means part of the state’s uniform system. In fact, that is the whole point of charters—to create schools outside of the normal uniform system. On this score, Washington’s supreme court gets it right. In fact, its opinion was unanimous in finding that charters are not common schools. This holding is simply surprising because the trend has been for courts to get it wrong.
None of this is to bash charters. As the Washington Supreme Court emphasized at the outset:
We begin by noting what this case is not about. Our inquiry is not concerned with the merits or demerits of charter schools. Whether charter schools would enhance our state's public school system or appropriately address perceived shortcomings of that system are issues for the legislature and the voters. The issue for this court is what are the requirements of the constitution.
The problem has been that commentators, legal advocates, and courts have let their concerns regarding their merits of charters to cloud their analysis of constitutional requirements. Washington did not. Hopefully, those reading and commenting on the case can notice the difference.