Commentary

Update: Washington State Supreme Court Rules Charters Unconstitutional

Days after Washington’s nine charter schools opened doors for the 2015-2016 academic year, their Supreme Court ruled the state charter school law to be unconstitutional. The decision affects 1,200 students who attend the charters by jeopardizing their school funding. The high court’s opinion takes effect 20 days following the decision, which was Friday afternoon, Sept. 4, 2015.

After nearly a year of deliberation, the Court ruled that privately operated, publicly funded charter schools do not qualify to receive “common school” public funds since they are not overseen by an elected school board. The 6-3 ruling is based on a precedent from 1909, which states that charters are not eligible to receive public funds because they are not under the control of local voters.

Charter schools are run by private nonprofit organizations that appoint their own board. Most of Washington’s charters are also under the oversight of the state’s appointed Charter School Commission. In response to the ruling, the Commission released a statement about their disappointment in the unexpected decision and its negative effects on the state’s most at-risk students enrolled in these schools.

In November 2012, Washington became the first state to approve a public charter school law by a ballot initiative, which also made them the 42nd state to approve charters. Following its passage, the state’s first charter opened last year in addition to eight more this fall. Most of the new schools had to conduct lotteries to select their students because there was such high demand for charter school spots this year.

The six justices argue that charters are unconstitutional because they extract funds restricted by the state constitution for “common schools.” According to the News Tribune, Chief Justice Barbara Madsen said there was no reason to overturn the 1909 precedent and that the charter schools could be financed from the general fund rather than the money intended for public schools. However, the Washington Policy Center clarified the misinterpretation about state funds for education. They state:

Yet, as the minority opinion points out, the legislature abandoned the use of restricted funds for public schools long ago. Funding from restricted funds is now extinct, a relic of the distant past. Schools receive their operating funding from the state general fund, which is not restricted by the constitution for use on only common schools. In fact, the general fund already funds other uncommon school programs, like Running Start, a program that funds the community college tuition of high school students. As the minority opinion points out, new uncommon educational opportunities for children, like charter schools, can receive funding from the unrestricted general fund.

The ruling has also triggered responses from the public about its effects on the state’s most vulnerable children. The Seventy Four’s article points out that students “bearing the brunt” of this decision are mainly minorities and live in Washington’s most impoverished communities. Former state senator and justice of the Washington Supreme Court, Philip Talmadge, wrote an opinion article for The News Tribune, pressing the Supreme Court to reconsider its ruling based on its effects to not only charters, but also programs like Running Start. He further showed how the Court discounted a precedent from a case decided only 15 years ago, Tunstall v. Bergeson, which challenged an education program for incarcerated youth run by contractors. The Court rejected the argument that only local school districts could provide education services, and stated that it is not their responsibility to “micromanage” education. In that case, they specifically noted that Legislature, still exercising their constitutional role in funding and organizing Washington schools, “found entities other than school districts qualified to educate our youth.”

Some of the most important information from Talmadge’s article was his attention to language in the state’s constitution. Talmadge states, “A closer look at Article IX, Section 2 of our state constitution says that the ‘public school system shall include common schools and such high schools, normal schools, and technical schools as may hereafter be established.” He notes the same section of the state constitution uses the word “includes” instead of “consist of” to display that the founders did not want to restrict what could be added to the “public school system” in the future.

Washington charter school leaders are still at work considering future actions in response to the decision. Thelma Jackson, the Board Chair of SOAR Academy in Tacoma, Wash., said officials from charter schools across the state held a conference call to discuss the court ruling and its effects. Jackson also explained that SOAR was able to open last month with grant and other non-state funding, but was supposed to receive its per-pupil allotment of state funds later this month. Now, charters are forced to quickly figure out their next steps and traditional schools have to consider possibly accommodating more students. According to the Washington State Charter Schools Association, charters and their partners are exploring every short- and long-term option to keep the schools open.

Ultimately, the court’s decision hurts the children that attend low-performing public schools the most by blocking innovative education. Restricting alternative education options that could yield higher student achievement is a poor reflection of the state’s school system. In order to improve Washington’s education system, the state leaders must act quickly to restore public funding to charter schools.