Saturday, September 5, 2015

State of WA Says Charters Unconstitutional? Not Really...

A very quick and legally illiterate look at the recent State of Washington’s Supreme Court decision to declare Charter Schools Unconstitutional.

In a 6-3 decision, Justices of the Washington Supreme Court found that Charter Schools failed to meet the definition of “common schools” and therefore did not qualify for any of the state’s established educational funding sources. 

A recent (2012) voter initiative provided for the introduction of nearly 40 Charter Schools throughout the state within five years, but implementation and construction of the schools was first held up by an earlier King County Superior Court decision which found specific parts of the new law were unconstitutional, while others (funding for construction) were not.

Unlike many other states, Washington’s Education Article within its State Constitution provides for all state funding to public or “common schools” under direct voter control.

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).

Those three funding reserves are state’s (1) the permanent common school fund, (2)the state tax for common schools, and (3) the common school construction fund. 

The 2012 state Charter School initiative provided for the construction and development of the nearly 40 schools, but it did not include methods for funding; instead, relying on the realization of Charter Schools to be fiscally accomplished by monies derived from the three existing educational resources. 

After a request for summary judgment at the Superior Court level, the plaintiffs – including the Washington Education Association - sought judicial intervention for the perceived unconstitutional draining of protected resources reserved for their public school systems.

The Justices on both sides in the case early recognized the potential for political misrepresentation in their decisions, both sides quickly identifying the fiscal argument as foremost in their arguments.  Chief Justice Madsen begins her majority finding with “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…” 

Chief Justice Madsen’s analysis runs twenty pages of careful explication of antedated cases supporting the protection of funding for the common schools from the siphoning or political grafting by any other sources. 

“This includes the Act’s funding provisions, which attempt to tap into and shift a portion of moneys allocated for common schools to the new charter schools authorized by the Act.”

In fact, past court cases in Washington have determined that parochial students waiting for buses along the same route as public schools students are prevented by the Constitution from receiving transportation using state funds to ride along with public school students to their respective religious schools. 

Even in her dissent of twenty pages, Justice J. Fairhurst concurs, “I agree charter schools are not common schools.” 

On the other hand, Justice Fairhurst does endorse the voters’ option to seek new and possibly better educational opportunities for their children, and she argues that voters often endorse concepts and ideas without providing funding.  Therefore, she argues, it would be up to the state legislature to determine how funding for such activities would be supported.  Their General Assembly might consider the general revenue fund if not the usual (and constitutionally protected) educational resources.

As you might have suspected, the Education Article of the Illinois Constitution is not quite so well-defined about funding.

“The State has the primary responsibility for financing the system of public education” (Article X, Section 1).

Neither the General Assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money, or other personal property ever be made by the State, or any such public corporation, to any church, or for any sectarian purpose” (Article X, Section 3).

Finally, it is interesting to note the majority opinion’s identification of a non-elected school board as another significant factor in the failure of charter schools to meet any resemblance to the accepted definition of a common public school.  

“As for daily operation charter schools are not governed by elected local school boards.  Instead…appointed or selected under the terms of a charter application to manage and operate the charter school…The board is responsible for functions typically handled by an elected school board, including hiring, managing and discharging employees; receiving and disbursing funds; entering contracts; and determining enrollment numbers.”

One wonders what they might consider the Chicago school board.   

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