Washington State Charters Vow to Remain Open Via Private Funding
On September 04, 2015, the Washington State Supreme Court ruled 6-3 in League of Women Voters vs. State of Washington that charter schools are unconstitutional in Washington State.
The majority opinion centered upon the fact that the voter-approved Charter School Act of 2012 (I-1240) would have allowed for the creation of up to 40 charter schools within five years– and would have been financed using public funds but without oversight by a publicly-elected board:
…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” within the meaning of article IX [of the Washington State Constitution].
…Charter schools do not qualify as common [public] schools.
Moreover, the majority opinion noted that charter schools in Washington State are not eligible for funding from the general fund, and since the Act hinges upon public school funding as its funding source, the Court declared the entire Act unconstitutional:
The [Charter School] Act unconstitutionally reallocates these restricted funds to charter schools, which do not qualify as common schools.
Compounding this problem, the State does not segregate constitutionally restricted moneys from other state funds. Nor can it demonstrate that these restricted moneys are protected from being spent on charter schools. Given this absence of segregation and accountability, we find unconvincing the State’s view that charter schools may be constitutionally funded through the general fund. Historically, the state common school funds were maintained in a separate public school account and distributed to the common schools by the Superintendent. … While some other constitutionally restricted state funds continue to be maintained in separate accounts (e.g., common school construction fund…), since at least 1967, the constitutionally restricted common school property levy revenues have been deposited in the State’s “general fund,” which is used for the basic education allocation. … There is no way to track the restricted common school funds or to ensure that these dollars are used exclusively to support the common schools. …
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.” …
Further, as discussed above, the Act designates and relies on common school funds as its funding source. Without those funds, the Act cannot function as intended. …
The portions of I-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 I-1240 providing access to restricted common school funding are also invalid. These provisions are not severable and render the entire Act unconstitutional.
Thus, the nine charter schools in Washington State in 2015-16 will almost certainly not be funded using public money. However, as Komo News reports, all nine schools vow that they will remain open this school year by raising the estimated $14 million they need via private donations.
Note, however, that the intention is that charter schools draw public money and not just survive on private funds. So, these nine charters’ surviving the year on private donations is certainly a short-term fix. The public can watch to see who steps up with the temporary millions– unless the money does not come from a nonprofit– in which case the public might not know who is financing the effort.
Meanwhile, as Komo News notes, the Washington State Charter Schools Association plans to petition the Washington State Supreme Court to reconsider its ruling (and to perhaps turn to the dissenting opinion of three judges who stated that they agreed that charter schools are not common (i.e., public) schools, but that they should be able to be funded via the general fund:
…Charter schools are not common schools. But nothing in the Act requires the diversion of resources out of the three funds identified by article IX as restricted for the benefit of common schools. Rather, the State can constitutionally support charter schools through the general fund.
The Washington State Charter Schools Association could (has?) also petition Washington Governor Jay Inslee to call a special session of the legislature to somehow fix the funding issue. However, to “fix” the general fund to accommodate the non-elected-board-run charters might mean reworking the general fund and re-partitioning funding, pre-1967-style. Nevertheless, the legislature’s setting apart taxpayer money to fund what all nine state supreme court judges agree are not common schools appears to be on the surface impetus for yet another funding lawsuit.
There is also the possibility of amending the Washington constitution. As Komo News reports:
While the justices focused on how the state pays for charter schools, they also said the charter schools are unconstitutional because they aren’t subject to local voter control. That raised the question of whether a constitutional amendment would be needed to allow for public charter schools.
House Majority Leader Pat Sullivan, a Democrat from Covington, said attorneys for his caucus are still evaluating that. Sullivan, who opposed the initiative, said he’s nevertheless open to a solution.
What appears certain is that proponents of the Washington State charter schools are seeking public funding without public oversight, or schools “devoid of local control from their inception to their daily operation,” as the Washington Supreme Court ruling notes.
However, since they will not be publicly funded for this year, at least, it seems that Washington State might have the only charter schools that cannot possibly mismanage or outright steal public money.