Sunday, November 24, 2013

I-1240 Litigation

I attended the first hearing on the constitutionality of I-1240, the Washington State Charter School law.

To be clear, this hearing was pretty meaningless. No matter who wins or loses, this case will appealed all the way to the State Supreme Court. None of the decisions in any of the lower courts will matter. Only the one decision from the State Supreme Court will decide this.

The hearing was pretty quick, about an hour. The petitioners, the folks wanting the law declared unconstitutional spoke first. They focused on two points more than any others. First, the constitution's requirement that the Superintendent of Public Instruction have authority over all schools - they say that the law grants authority over charter schools to the Charter School Commission instead - and a line from the Seattle Schools decision (the first time that school districts sued the state for underfunding education) in which the Court delineated the legislature's three indelegable responsibilities to public education. and that among them was the duty to deliver a program of instruction. They contended that charter schools constituted an unconstitutional delegation of that duty.

Frankly I could not believe that they put so much weight on these two rather weak points.

The attorney general's office, defending the law, asked for a summary dismissal of the complaint because the petitioners had failed so completely to make any kind of case. They then countered the two arguments by saying that the OSPI sets the EALRs, the Standards, and chooses the student proficiency exams and that's all the control they have over any school. Furthermore, since 1240 requires the closure of any charter school if its students perform poorly on these tests, 1240 gives the Superintendent of Public Instruction MORE control over these schools than any other. They countered the other argument by saying that the legislature delegates the delivery of basic education to school districts and that the charter school commission fulfills the role of a school district under the law.

On the whole, I'd say that the petitioners didn't choose their arguments well, and that the attorney general crushed them.

The judge refused to offer a ruling immediately. She will review their briefs and "take it under advisement". She'll get back to them with a decision. I hope she does it promptly. Her decision doesn't much matter and the sooner we get to the Supreme Court the better.


Melissa Westbrook said...

I was not able to attend this hearing but did talk to Charlie and read accounts of it.

The AP account quotes Jude Rietschel as saying "When I first read both parties' briefs, it was like going down two different roads that had nothing to do with each other."

I have no doubt that is true. There are fundamentally different arguments here.

The State wanted to get the lawsuit summarily dismissed, in essence saying, "Nothing to see, move along" and hoping the judge would not read it closely. Didn't work.

In terms of the State's argument that the Superintendent can close these schools, that's not what the law says. It takes a fairly complicated process to close a charter school (and indeed, this is the experience of the other states with charters).

I also think the argument can be made that these schools are also not set up under the same guidelines as regular public schools so to say they are the same is not a good argument.

(I also wish they would haul in the evidence that other states are now having court findings that charters are NOT public in terms of contracting with outside providers.)

We'll see.

mirmac1 said...

My (ignorant) read of the RCW is that state laws governing educational reference "common schools". Does that mean there are no laws 4 charters?

Anonymous said...

There was some history of the funding of common schools, that it was debated in relationship to some form of other school that was done through the UW. That program was deemed not uniform nor common and so it was de-funded. There is perhaps some case law to this effect.

Ann D

Anonymous said...

Total BS propaganda piece on how new fabulous charters will serve disabled, drop-outs, etc. on the now Sinclair-owned KOMO "news" site.
I'm guessing it was written by the charter industry for the AP. Pukeworthy, as my kids would say.


Lynn said...

On a related topic, I read the FAQ documents posted by the Charter School Commission in October and

One thing I learned is the reason several private schools filed their Notices of Intent as conversion, rather than new charters. Conversion charters can give enrollment preference to their current students, new charters can't.

Other than that, I was surprised by some of the questions. The answers seemed obvious to me - mostly in cases where it appeared out of state applicants weren't familiar with differences between our law and those of other states.

Melissa Westbrook said...

Lynn, the Charter Commission is aware that they did not word their letter of intent form correctly. I'll check but I do not believe the private schools will be able to call themselves "conversion" as that is not what conversion means under 1240.

As well on the issue of "common schools", The Columbian newspaper over in the eastern part of the state makes a big deal over the plaintiffs and this wording. They might take that up with those who wrote the State Constitution as that is THEIR wording.

CT, this piece isn't KOMO, it's the AP and I have noticed that the local AP reporter does lean towards ed reform. I did point out, then this puff piece ran in the Columbian, that KUOW found that the Por Vida Academy system in Texas is so bad that they are in danger of losing their accreditation.

In their March 2012 minutes, the Por Vida Executive board say "The biggest reason we are under this status is test scores. Specific areas of need are: students not passing, graduation rates too low, and drop-out rates too high."


Lynn said...


You're correct - the FAQ says only a public school can become a conversion charter.

Anonymous said...

Melissa, the Columbian is in Vancouver WA, in the SW part of the state, not the eastern part.

-- Ivan Weiss

Eric B said...

IIRC, there was WA Supreme Court precedent from a while back that only common schools could receive state money. To qualify as a common school, the school had to be overseen by an elected school board. IMHO, that's the best line against charters. The charter boards are not elected, therefore they are not common schools, therefore they receive no state funding. Again, this is all from memory and I'm not a lawyer.

The lower court ruling is somewhat important because the facts determined in the case by the lower court judge are generally not disputed on appeal. An example of this is the anti-Prop 8 ruling in CA. The lower court made a number of determinations of fact (eg Prop 8 had no reasonable purpose other than to discriminate against gay people) that very much smoothed the way through the appeals process.

Kathy said...

I attended the hearing and I need to read all the briefs etc. I'm not an attorney, but I'm not as pessimistic as Charlie.

The burden of this case falls on the plaintiff, which is huge. There are many complicated legal issues that revolve around the inter-connectedness of Constitutional and legislative laws/ issues, responsibilities of Charter Commission etc.

In 1909, there was a very important court case that relates to I 1240. The case deals with the issues of common school issues.. From the case: "To summarize, a common school is within the meaning of the Constitution, is one that all children of proper age and capacity, free and subject to, and under the control of, the QUALIFIED VOTERS of the school DISTRICT." The Defendants simply wanted to dismiss this case because the case was "old" and no longer applied- which seemed silly.

The judge also seemed VERY concerned around the area of charter schools discipline. The State's attorney argued this wasn't an issue because nothing has happened, yet, and there is no court case to refer to.

We'll see.

Any Mention? said...

Did anyone mention that the Chair of the Charter Commission was the former President of the Seattle School Board, and he was charged with failing to oversee district operations.

Melissa Westbrook said...

Kathy, yes, Charlie mentioned this issue of the defendants saying "well, that has happened yet."

But the issue of discipline and conversation charters is HUGE and just waiting to see how it plays out is silly. The conversion charter clause exists nowhere else in the U.S. and it should be reviewed.

Kathy said...

Totally agree about the discipline issue, Melissa. Does the state have to wait for an incident to happen before action is taken???

The plaintiff's lawyer also mentioned that the Charter Commission members must be pro-charter, which eliminates the voice of dissent. This fact seemed to get the judge's attention.

Of course, the defendants liked to say charter schools would simply be "closed" if students were not meeting standards, but NO mention of due process and associated costs.

joanna said...

I am also not an attorney. I agree that the subject of discipline seemed to resonate with the judge. I entered a few minutes late and did not take notes. However, I also thought the the discipline issue seemed to resonate with the judge. But, I also thought it was related to the judge's concern that the Charter legislation exempted Charters from some of the statutes (at least two that she noted) for common schools. Therefore, I did not believe that the State's Attorney really responded to the concern of the exemption from statutes.

David richard said...
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joanna said...

I have a feeling that this isn't about the effectiveness or ineffectiveness of Charters. It has to be about the State Constitution. Some of the spokespeople for Charters did try to sell charters, but the judge did not seem to respond to those arguments. She stuck to the constitutional questions, which are more nuanced. I don't really agree with Charlie. The sound quality was very poor in the courtroom. The worst that I have experienced, I have not spent that much time in King County courtrooms, but hope that in general that they are better than this for the sake of all, especially a jury. I suppose one could order a transcript. I could hear but having to listen so closely for each word sort of took away from the arguments being made. One woman in the audience could not hear at all.