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Details from the Washington State Supreme Court Ruling Against Charter Schools

September 4, 2015

Proponents of charter schools maintain that “charter schools are public schools.”

However, the Washington State Supreme Court ruled 6-3 on September 04, 2015, in League of Women Voters vs. State of Washington that charter schools are unconstitutional in Washington State.

The Court’s decision hinges on the issue of public funding being sent to schools that are not publicly governed.

As is true of charter schools nationwide, the charters in Washington State (up to the current ruling) were eligible for public funding diverted from traditional public schools. Charter schools were approved via a November 2012 ballot initiative (I-1240, the Charter Schools Act) in which charters were declared to be “common schools” despite their not being subject to local control and local accountability. And also like America’s charters in general, Washington’s charters are not under the authority of elected school boards.

Thus, Washington voters had approved to give public money to private entities– a one-way street that provided no means for such funds to overseen by the public.

On September 04, 2015, the Washington State Supreme Court ruled against this public-school-funding one-way street.

Here is an excerpt from the Washington State Supreme Court’s finding:

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.  … Accordingly, “[o]ur review here is limited to the issue of whether the voters acted in compliance with our state’s constitution in expressing their collective will.” … “[W]hile initiative measures are reflective of the reserved power of the people to legislate, the people in their legislative capacity remain subject to the mandates of the Constitution.” 

In ruling on whether Washington State charters qualify for public funding allotted to public schools, the Washington State Supreme Court had to decide whether Washington charters fit the definition of “common schools.” For this, they resorted to a 1909 case, School District 20 vs. Bryan. Apparently, proponents of charters in Washington State argued that the Court should “overturn Bryan” and “recognize an evolving common school system,” but the Court said no and concluded that the voter-approved Charter Schools Act was not constitutional because charters do not qualify as “common schools.” Moreover, since the voters passed the Charter Schools Act based upon the idea that the charters would be funded using money that would otherwise be used to fund traditional public schools, then it is not logical to assume that voters would have passed the Act without said funding source. Finally, the Court found that the Act could not operate without the intended funding source. As noted in the ruling:

Intervenors offer no compelling reason to abandon Bryan. Similarly, the State asks us to “recognize an evolving common school system” and not read Bryan as “a static statement of constitutional imperatives.” … But in Bryan this court established the criteria for evaluating a “common school”… and warned, “The words ‘common school’ must measure up to every requirement of the constitution … and whenever by any subterfuge it is sought to qualify or enlarge their meaning beyond the intent and spirit of the constitution, the attempt must fail.”

Bryan established the rule that “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.” …

Here, because 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”….

Our constitution requires the legislature to dedicate state funds to support “common schools.” … As noted… “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.” … Using any of those funds for purposes other than to support common schools is unconstitutional.  …

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. 

We also disagree with the State’s view that the Act’s remaining provisions are saved because funding “follows the student” and in any event charter schools could be funded out of the state general fund. … The fact that public school money distributions are generally based on per capita student attendance does not mean that common school funds are available for students who do not attend common schools. Where a child is not attending a common school, there can be no entitlement to “an apportionment of the current state school fund, to a credit predicated on attendance of children at such … school.” ….

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 I-1240 are not viable. Moreover, I- 1240’s (the Charter School Act) 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 sum, the Charter School Act violates article IX, section 2 [of the Washington State Constitution] because charter schools are not common schools despite the Act’s attempt to so designate them. The Act’s designated funding mechanisms fail, and these provisions are not severable from the remainder of the Charter School Act. …

According to the News-Tribune, Washington State has nine charter schools, located in five cities: Tacoma, Spokane, Kent, Highline, and Seattle. The Washington State Supreme Court has sent the case back to King County Superior Court so that this lower court might decide the specifics in carrying out the Washington State Supreme Court’s ruling.

scales of justice 2


Schneider is a southern Louisiana native, career teacher, trained researcher, and author of the ed reform whistle blower, A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education.

She also has a second book, Common Core Dilemma: Who Owns Our Schools?, published on June 12, 2015.

both books

  1. My favorite Abe Lincoln quote: “How many legs does a dog have if you call the tail a leg?” “Four. Calling a tail a leg doesn’t make it a leg.”

  2. WA Teacher permalink

    Although I think the timing if this decision was poor, the fact these charter operators opened their doors this year even though they KNEW this was coming shows 1) their arrogance in thinking they would win and 2) their willingness to gamble with kids’ lives.
    Sadly, our WA State GOP and DINO legislators have tried their hardest to make charter schools more appealing with their lower class sizes, even as we in the public schools are forced to take in more and more kids with less funding and fewer staff and crumbling, overcapacity buildings…all because the legislators won’t do their jobs and fund public schools properly.

  3. Mercedes, I was the lead on one of the No on 1240 campaigns against this initiative in Washington State. We knew this was not legal and I believe so did the writers of it. They gambled with children’s academic lives and lost.

    Washington State, unlike many other states, has very specific language about public education in our state constitution. It is the “paramount duty” of our state to “amply fund” public education. (Indeed, the Supreme Court has now held the Legislature in contempt – with a meter running at $100K per day – for not fulfilling a court ruling on funding public ed in WA State.)

    The Court ruled on what our state constitution calls public schools as “common schools” and found charters did not meet that definition.

    It is a good day for standing up for the rule of law.

  4. Remember, any state supreme court decision has implications throughout the nation.

    • How so? Each state has its own laws and constitutions. So each state supreme court decision is specific to that state’s laws.

  5. Zorba permalink

    Reblogged this on Politicians Are Poody Heads.

  6. Generally, there is no such thing as a “public” charter school. Both existing case law and public policy have long established the logic for the Washington State Supreme Court holding. The California Court of Appeals (2007-01-10) ruled that charter schools are NOT “public agents.” The 9th Circuit US Court of Appeals (2010-01-04) ruled that charter schools are NOT “public actors.” The National Labor Relations Board joins a host of other government agencies that have unequivocally ruled that that charters are “private entities.”

    By definition whether a charter is run by a for-profit firm, or a (501c3) non-profit, then it is not public. The United States Census Bureau frames this issue best: “A few “public charter schools” are run by public universities and municipalities. However, most charter schools are run by private nonprofit organizations and are therefore classified as private.” (US Census Bureau. (2011). Public Education Finances: 2009 (GO9-ASPEF). Washington, DC: US Government Printing Oce. Print. vi).

    Because these lucrative charter schools are not public, and are not subject to public oversight, they are able to get away with violating the constitutional rights of their students. The decision in Scott B. v. Board of Trustees of Orange County High School of the Arts saw Rosa K. Hirji, Esq. write: “The structures that allow charter schools to exist are marked by the absence of protections that are traditionally guaranteed by public education, protections that only become apparent and necessary when families and students begin to face a denial of what they were initially promised to be their right.” It’s time that we shut down the profitable charter school industry and divert our attentions to improving our public schools.

  7. Sorry for bad link my previous replY:

    Many troubling issues with current excuses to rush to charters without solving basic pedagogy issues first. Just passing the buck:

Trackbacks & Pingbacks

  1. Mercedes Schneider Reviews the Washington State Ruking Against Charters | Diane Ravitch's blog
  2. Mercedes Schneider Reviews the Washington State Ruling Against Charters | Co-Opt-Ed
  3. In ‘Win for Public Schools,’ Wash. Supreme Court Rules Charter Schools Unconstitutional | Occupy World Writes
  4. Wash. Court Rules Charter Schools Unconstitutional | All-len-All
  5. Ed News, Tuesday, September 8, 2015 Edition | tigersteach
  6. In ‘Win for Public Schools,’ Wash. Supreme Court Rules Charter Schools Unconstitutional | New Deal Progressives
  7. Why is Washington State Attorney General Robert Ferguson sticking his neck out for charter schools? | Seattle Education

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