#SaveWACharterSchools - A Close Read of the Ruling

Update 9/8/15 6:30 PM - I've written an opinion piece that has been published today in the Seattle Times. You can read the piece here. Additionally, the Editorial board at the Seattle Times wrote a separate opinion calling on the court to reconsider its ruling. Since last update, a thorough comment from Elisha Ferry (see below) explains why a legislative fix may be more difficult than anticipated. She also questions Representative Stokesbary's analysis of how this court ruling would impact programs like Running Start. Please give it a read.

Update 9/7/15 10:00 PM - Washington House Appropriations Committee member Drew Stokesbary provides a worrysome description of what this ruling could mean for state supported education programs like Running Start and tribal schools. Read his response here. In short, this ruling does not invalidate these programs, but it paves the way for them to be invalidated using this court case as a precedent. This needs to be fixed... I taught in Federal Way and saw tons of kids gain tremendous benefit from Running Start. Also, an opinion piece in the Wall Street Journal called "The Judges who Stole School Choice" provides some good insight, even if their bias is quite prominent.

Friday afternoon, the Washington State Supreme Court issued a ruling that strikes down I-1240, a 2012 public voter approved Act popularly called the "Charter School Act." As the Seattle Times describes, this ruling potentially disrupts the education of up to 1200 students already attending school at nine schools across the state. This is personal for me, since I'm a founding teacher at one of these charter schools this year. I've jumped into the fray on social media trying to try and call attention to how detrimental this ruling could be for our kids. I've seen many opinions, ideas, and quite a few misconceptions fly around. Most importantly, I've already been called a "Bill Gates shill" on Twitter:

I couldn't help but laugh at this one. How did she know that I learned to type in the 1990's on computers donated by Microsoft in the library of Symmes Elementary?! I am unashamed in my love for Microsoft Word (and more recently OneNote). Point taken, Pippi.

There are many hailing this court ruling as a "victory for public education," despite the fact that it could lead to closing schools that are currently serving students.

One thing that has been immensely frustrating to me is how supporting charter schools is being messaged as an alternative to fully funding public education here in Washington. This couldn't be further from the truth. The McCleary v. Washington decision states clearly that our state legislature is not fulfilling the constitutional requirement to properly fund public education. #SaveWACharterSchools and #SaveWAPublicSchools (a.k.a. fully fund basic education in Washington State) should not be competing ideas. They should both happen for the benefit of all of Washington's kids. I stand alongside the union and other public educators in advocating for better basic funding of K-12 education in this state. I wish they'd stand with me in advocating for my students as well.

Last night, I sat down and read the full court opinion in detail. I found it quite readable, logically structured, and very helpful in making sense of this decision. There were some very important points I took away from the reading. I provide my commentary below.

Full Disclosure: I'm a Teach for America alumnus, founding teacher at one of Washington's public charter schools, and I am not a lawyer. I taught in the public school system in this state for three years and I paid mandatory dues to the Washington Education Association. Despite what you may believe so far, I'm not categorically "anti-union". However, I have gotten pretty riled up over hearing the WEA calling this ruling a "victory" knowing what it could mean for my students. My goal in this post is to describe more of the nuance and complexity in this court decision. Take it or leave it.

Summary of the Ruling

The Washington State Supreme Court decided in a 6-3 ruling that the entire Charter School Act is unconstitutional. This was a reversal of a lower court ruling, which determined that part of the Act was unconstitutional, but that it was "severable" from the rest of the act. This meant previously that Charter Schools could receive public funding to support students in a fashion similar to traditional public schools, but they could not receive the money in the same way towards constructing school buildings. This recent ruling says that the unconstitutional part of the Act is not severable from the rest of it, and therefore, the entire Act is unconstituational. The immediate consequence of this is that charter schools are not eligible for public money towards the day to day operation of the school. It does not say anything about the legality of charter school's existence. Here's some background to help make sense of the arguments described below.

The Washington state constitution contains the following in Article IX, section 2:

The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But 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.

Article IX Section 2 of Washington State Constitution

The term "common schools" is not defined in the Washington State constitution. The Charter School Act asserts that charter schools are "common schools". My (limited) understanding of why this was done is that there have been other examples of non-traditional K-12 programs being deemed "common schools" by the courts and by the legislature. First, let's dive into the court's opinion on this question. Are Charter Schools "common schools"?

The Common School Arguments

All members of the court agree, public charter schools in Washington are not considered "common schools". They use a well-established and unambiguous definition provided by a legal ruling in the 1909 case, School District No. 20 v. Bryan, which says 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.

School District No. 20 v. Bryan (1909)

Under this definition, the court is unanimous in agreeing that Washington's public charter schools are not "common schools." Charter schools don't have direct control by qualified voters of the school district. Instead, they are overseen by the State Charter Commission, which is composed of appointed members. This means that the part of the Charter School Act stating them as such is unconstitutional.

I find it ironic that the rationale described above for the definition of common schools is to protect the right of the chosen agents of the voters to ensure that there are competent teachers in schools, but that's a discussion for another day.

The court's decision to uphold the fact that charter schools are not "common schools" was unfortunate, but not surprising. What was surpring was the fact that the court doesn't consider this part of the Act "severable" from the rest of it. This is what renders the whole act unconstitutional. I'll go through a summary of the majority opinion first, then the dissenting opinion.

The Majority Opinion

The Majority opinion starts by confirming that by Bryan, it is clear that charter schools are not "common schools." They note that the constitution establishes three funds for "exclusive" use by "common schools". They are the "common school fund," the "state tax for common schools," and the "common school construction fund." The majority states that "under the Act, money that is dedicated to common schools is unconstitutionally diverted to charter schools."

The majority opinion next summarizes past cases where they have struck down attempts to appropriate "common school fund" money to other programs. One case established the fact that "The constitutional protection afforded to common school appropriations is not dependent on the source of the revenue (i.e., the type of tax or other funding source) or the account in which the funds are held (i.e., the general fund or other state fund)." This is quite relevant given that money for education comes directly out of the state's general fund. More on this later in the dissenting opinion.

They note that "Under the Act, charter schools receive funds from the legislature's basic education allocation for the common schools." The opinion explains further that all money spent on basic education is protected under the three "common school" funds defined in the constitution. This is a major point of disagreement with the dissenting opinion (see below).

Further, the majority highlights the fact that the constitutionally restricted "common school" funds are not physically separated from other general funds,

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.

Majority Opinion - League of Women's Voters v. Washington

Let's stop here for a second. As you'll see below, the dissenting opinion makes a good case for why these funds were rolled into the general fund in 1967 and why they can be considered separable even though they live with other money. The majority opinion basically seems to say that the state legislature can't be trusted to find money in the general fund that is not constitutionally protected for use towards common schools, even if such money exists.

The opinion continues along, now having established that (a) charter schools are not "common schools" and (b) therefore cannot be funded by any general fund money previously allocated to general education because spending from the general fund doesn't lend itself to oversight.

Next, the majority opinion addresses the the fact that I-1240 supporters pamphlets spoke to the idea of "shifting funding" from regular public schools to charter schools

the Act designates and relies on common school funds as its funding source. Without those funds, the Act cannot function as intended. Notably, I-1240 supporters' statements in the voters' pamphlet assured voters that charter schools would be funded out of the current school system by merely shifting existing school funding.

Majority Opinion - League of Women's Voters v. Washington

The majority opinion uses these pamphlets as an example of how the issue of funding is not severable from the rest of the Act. The dissenting opinion disagrees, noting that "nothing
in the Act expressly requires the use of restricted funds". The suggestion of similarity in funding between traditional and charter schools is not the same as specifying that particular money is used, they say. More on this below.

The majority opinion's argument that the pieces of the Charter School Act are not severable is concise and clear:


Ok, so that's my abbreviated summary of the majority opinion. Got it?

The Dissenting Opinion

Fairhurst starts the dissenting opinion by stating that he agrees with the majority in their application of the definition of "common schools".

I agree that charter schools are not common schools. But because nothing in the Act expressly requires the use of restricted funds, the Act is facially valid. Since charter schools may be constitutionally funded with unrestricted monies from the general fund, I concur in part and dissent in part.

So, the dissenting opinion concurs with striking the part of the Act that says that charter schools are "common schools", but dissents with the majority's opinion that general funds cannot be used in a way that is constitutional.

Next, the dissenting opinion states that the "Act was intended to provide parents with 'more options to find the best learning environment for their children.'" Then, the opinion summarizes some of the ways that charter schools are held accountable for their results. I appreciate these details, since so much of the rhetoric discusses how charter schools are "unnacountable".

While charter schools are given more "flexibility to innovate and make decisions about staffing, curriculum, and learning opportunities to improve student achievement and outcomes," they are still subject to various restrictions. RCW 28A.710.005(1)(g). For example, all teachers must be state certificated. RCW 28A.710.040(2)(c). Like traditional public schools, charter schools are required to provide a basic education through instruction in the essential academic learning
requirements (EALRs) ... When it comes to evaluating performance, charter schools are assessed under the same statewide student assessment system developed and overseen by the Superintendent. RCW 28A.710.040(2)(b). Charter schools are additionally required to provide annual performance reports to the parents and the community served by the school. RCW 28A.710.040(2)(f) (citing RCW 28A.655.110). If a charter school falls to the bottom 25 percent of the statewide school accountability index, that charter school's contract will not be renewed. RCW 28A.710.200(2). Funding for a charter school is tied to student enrollment, and the Superintendent allocates funding to charter schools using the same formulas that are applied to traditional public schools. RCW 28A. 710 .220(2). The State's general fund is the main source of funding for public education, including charter schools.

Dissenting Opinion - League of Women's Voters v. Washington (emphasis added)

These details are important to me personally, because they help explain why the work that I'm doing does have accountability, even if it's not directly to a voter approved school board. Public charter schools are not the free-wheeling private institutions that some would have you believe. In many ways, the requirements put on public charter schools in Washington are much stricter than traditional public schools.

After this opening, the dissenting opinion explains how modern funding and operation of common schools "can and must" include money that is not constitutionally restricted. (If you recall, the majority opinion looked at all the money spent towards public education and says that it must all be considered constitutionally restricted).

The opinion continues, "Washington's constitution identifies three funds whose use is restricted solely for the benefit of common schools. The Act does not require the use of monies from any of these funds. The current funding scheme for charter schools and public education is consistent with our constitution and precedent. The appellants, making a facial challenge, fail to meet their burden. "

The most important contribution of the dissenting opinion is the way that they detail how each of the three constitutionally protected funds are still protected even if charter schools receive money from the general fund. This level of specificity and economic-historical context is absent in the majority opinion because it wasn't deemed relevant.

Why Funding Charter Schools from the General Fund is Constitutional

Recall that there are three constitutionally protected funds for common schools. All members of the court agree that charter schools can't use them:
1. Permanent Common School Fund (created in 1899, frozen in 1967)
2. State Tax for Common Schools (currently collected in the general fund)
3. Common School Construction Fund (created in 1967 from interest on common school fund)

The dissenting opinion makes the argument that all three of these funds remain untouched. The permanent common school fund was created in 1899. The principal amount of the fund was frozen by the state legislature in 1967. Further, at that time, the legislature "directed all of the interest accruing on the [permanent common school] fund toward the newly created common school construction fund, which was dedicated solely to common school construction."

The opinion argues that the basis and interest of the permanent common school fund that the constitution addresses are well protected and are not required to be used to support charter schools.

Further, the opinion illustrates that revenue from state tax for common schools just barely exceeded $2 billion in FY15, compared to a total education appropriation of over $7 billion. Differing substantially from the majority's opinion, the dissenting opinion leverages economic facts to support their argument that there are valid ways for the state legislature to fund charter schools from the general fund, despite them not be considered "common schools". This is a critical difference, as one invalidates the whole Act, and the other paves the way for supporting funding as originally envisioned.

Clarifying, the dissenting opinion gets specific about part of the Act that the majority challenged by saying that it specifies an unconstitutional funding source:

Contrary to the majority's view, the Act does not expressly require the use of any of the three restricted funds. The majority points to RCW 28A.710.220(2). Majority at 12-13. That statute provides that '[c]ategorical funding must be allocated to a charter school based on the same funding criteria used for noncharter public schools.' On its face, this statute does not require the State to support charter schools with restricted funds. Taken in context, this provision relates to the amount of money that a charter school may receive and requires that charter schools be subject to the same per-pupil formula as other public schools. It plainly says nothing about the source of funding.

Dissenting Opinion - League of Women's Voters v. Washington

Summarizing, the opinion states that "Because the Act neither identifies a source of funding nor commands the use of restricted funds to support charter schools, it withstands appellants' facial challenge and is constitutional."

The next section describes in detail why this funding scheme for charter schools is "constitutional and consistent with [the court's] precedent." It describes how Bryan, the case used strongly by the majority, clearly states that "all experiments in education must be indulged, if at all, at the expense of the general fund."

The next critique of the majority's opinion stands on its own:


Addressing other points the majority opinion hinges on, the dissenting opinion provides counter evidence and interpretation demonstrating that they believe the majority to be in error when they extend "common school" money to include all of the public education appropriations here in the state.

The dissenting opinion explicitly mentions programs like Running Start, "that are not under the control of local voters and are thus not common schools, [but still] receive support through the $7.095 billion appropriation for public education."

The dissenting opinion demonstrates that our state's funding mechanisms have changed substantially since the 1939 Yelle decision, and criticizes the majority for using this as a basis for their opinion.

"The majority believes that once money is appropriated to our public schools from the general fund, it becomes restricted solely for the benefit of common schools. Although the seven separate appropriations listed above can reasonably be considered public school funds, they are not common school funds."

The distinction above is important. The majority considers all public school appropriations "common school funds," while the dissenters highlight that this is not practically backed by modern precedent.

The majority conflates the legislature's appropriation for public education with common school funds, an approach we have long rejected. Because charter schools are part of our system of public education, they are a proper recipient of public school funds. - Dissenting Opinion, League of Women's Voters v. Washington

The remainder of the dissenting opinion details why they believe that the appellant's failed to meet their burden in the challenge, specifically, that charter schools use constitutionally restricted funds.

At this point, at last, the dissenting opinion offers a solution: "appropriate charter school funding separate and apart from the basic education appropriation." They detail:


Citing Yelle again, the dissenting opinion notes that the solution was to create separate funding sources during the next legislative session, not abolish vocational schools. This is why so many are calling for a legislative fix for this issue. Our students are ready to learn, we are ready to teach, despite this ruling.

Zero-Sum Game?

The last section of the dissenting opinion picks apart the majority's argument that the part of the Charter School Act declaring charters as "common schools" is not severable from the remainder of the Act.

The one piece that sticks out to me in this section is the claim from the dissenting opinion that, in fact, "voters were never misled about the effect of I-1240 on local school districts."

In fact, voters were repeatedly informed that I -1240 would "shift revenues, expenditures and costs between local public school districts or from local public school districts to charter schools, primarily from movement in student enrollment result[ing] in an indeterminate, but non-zero, fiscal impact to local public school districts." CP at 549 (emphasis added). Appellants allege that voters were misled to believe I-1240 was a "zero-sum game." Br. of Appellants at 28. This is inaccurate because the voters' pamphlet repeatedly described the fiscal impact of I-1240 as "indeterminate, but non-zero."

This may seem picky, but it is important. Obviously, there are possible impacts on public schools with the introduction of new schools to the system. This is one of the most important issues surrounding charter schools, and it is one that should be studied closely. However, the introduction of traditional public schools (new districts, schools, etc.) is likely to cause the same effects.

Next, stating why the dissenting opinion sees parts of the Act as severable (and therefore constitutional), they state that "elimination of the common school provisions would not render the Act useless to accomplish its purpose. The purpose of I-1240 was to establish 40 charter schools over the next five years. RCW 28A.710.005(1)(n). This purpose may be accomplished without designating public charter schools as common schools."

Fairhurst cites that the voters did in fact pass I-1240 without a specified funding source because the Act itself never specifies a precise source. It is suggestive of the way in which charter schools could be funded, but technically, it does not specify a funding source, and therefore did not mislead voters.

Fairhurst concludes: "I agree with the majority that 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. I would not invalidate the Act but, rather, would hold that appellants cannot meet their burden on this facial challenge. I respectfully concur in part and dissent in part."

In Summary

Wow... ok. Coming back up for air, I've tried to present a detailed (if slightly biased) account of the court ruling. There has been a lot of talk about this issue, and there is likely more to come. In my support for #SaveWACharterSchools, I want to make a few things eminently clear:
- I support public education, in all forms, in this state. Providing basic funding for WA should be a top priority for our state legislature.
- This court ruling puts our students and families, in an uncertain situation. Regardless of how we got here, It is important to think about the students.
- A legislative fix is the best way to fix this issue for our students long term. Myself and others have come out in support of this route for this reason.

#LetTheTeachersTeach #ItsForTheKids #SaveWACharterSchools

How do you feel about the court opinion? Did I make mistakes in my analysis? Please let me know.

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