Saturday, September 26, 2015

Washington State Charter School Ruling: Part Two - Ruling Itself

(Editor's note: I am not a lawyer.  I am a layperson who is interested in the law and I have sought to understand the Washington State Supreme Court ruling on the charter school law.) 

Background

For your edification, here's a link to the Washington State Constitution which was ratified in 1889.  The key issue in this case is the Constitution's use of the term "common schools."  Here's a history of the term "common school" from PBS.  It would appear that it was a historical term meaning schools funded by taxes (as opposed to private or church-led schools).  Horace Mann was the best-known leader for common schools.  

The term first appears in Article II (Legislative Department), Section 28, part 15. Section 28 states:
SECTION 28 SPECIAL LEGISLATION. The legislature is prohibited from enacting any private or special laws in the following cases: 
15. Providing for the management of common schools.
The main section that the Court used was Article IX - Education - wherein we find the famous "paramount duty" phrase.  It's on page 37.  One key paragraph that seems to throw some people is this one:
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.
I read that to mean that when high schools, etc. are established ,they are then PART of the common school system.
And, from the history that I have read about common schools, they did include (as did the writers of the Washington State Constitution did) wording about secondary schools as part of common schools.
The term common school came to have a specific meaning: a school that was attended in common by all children and in which a common political and social ideology was taught. 
Intermediate schools and ungraded classes thus grew out of strong concerns over the advisability of younger children attending the same classroom as older children,of native-born children sitting side by side with immigrant children, of boys and girls who were seen as performing and behaving appropriately in the classroom learning alongside those who were not. 
Undermining the Common School Ideal: Intermediate Schools and Upgraded Classes in Boston; Robert L. Osgood, History of Education Quarterly, Winter 1997
The Constitution establishes a "Common School Fund" for the support of the system.  This is Article IX, Section 3.  It also provides that levies can be initiated and passed by voters for funding common schools ( page 28).

Ruling by Majority of Supreme Court

It's important to recall that the King County ruling - the original ruling on the law - stated that charter schools were not common schools for funding BUT that fact could be severed from the law.  I believe that to mean that charter schools could exist as the schools that had different rules from common schools but could not get state funds.

However, the Supreme Court ruling found that half right - they said charter schools were NOT common schools and, without the funding, could not exist.  (The Court did seem to have some sense of compassion and common sense here because how would charter schools exist if they did not have public funding? So they threw the whole thing out.)

Here's a link to the decision which came out on Friday, September 4, 2015.  The ruling was 6-3.  One key fact is that ALL the Justices said that charter schools, under the Washington State Constitution's definition, are NOT "common schools."  

Page 12:


Our constitution requires the legislature to dedicate state funds to support "common schools."

Also, to understand, the Court was very clear that this was "not about the merits or demerits of charter schools" nor would the Court address their usefulness and said they would leave that to the Legislature and voters.
The issue for this court is what are the requirements of the constitution.
And that is what most of the charter supporters - both in-state and out-of-state - do not want to admit or hear.  It is not about being a "strong" law or "right" or "fair" - it is about meeting the constitution of the state of Washington.

The majority also state, on page 6, that initiatives are "subject to the mandates of the Constitution."
Moreover we have made clear that the initiative process is limited in scope to subject matter that is legislative in nature, that an initiative attempting to achieve something not within its power is invalid, and that the initiative power may not be used to amend the Constitution. 
So that brought the Court to using the Bryan ruling from 1909 (School District No. 20 v. Bryan).  The majority refused to overturn Bryan saying:
Bryan has been the law in Washington for more than a hundred years and is repeatedly relied on authority by Washington's appellate courts.
This is a key issue here because almost every single charter supporter op-ed, article, blog post, etc. berates the Court for using a hundred-year old ruling.  If that is something improper for our courts to be doing, I'd ask the charter supporters to tell that to the U.S. Supreme Court.  All of case law is based on precedents and just because they are old, doesn't make them wrong or inconsequential.

The Court says that the State called Bryan "a static statement of constitutional imperatives." But the Court said that Bryan:
But in Bryan this court established the criteria for evaluating a "common school" within the meaning of article IX, and warned, "The words 'common school' must measure up to every requirement of the constitution 

... and whenever by any subterfuge it is sought to qualify or enlarge their meaning beyond the intent and spirit of the constitution, the attempt must fail." 51 Wash. at 503. Bryan established the rule 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.
Clearly, in the Bryan ruling, the Supreme Court at that time knew that there would be those who might use "subterfuge" in trying to create other types of schools.

What keeps coming up, over and over, in the wailing from charter supporters?  The fact that our schools no longer get all their funding from the Common School Fund.  (And, indeed, this is what the dissenters held, saying that even though charters are NOT common schools, they could still get state funding.)  The is a meretricious argument.

The majority go on:
In Yelle, this court addressed the restrictions on the use of basic education funds allocated to common schools. Yelle struck down a law that would have diverted tax revenues allocated to the common schools to support a vocational rehabilitation program operated by a state board. This court explained that it was "beside the question" that the vast majority of state funding in place at that time, whether derived from tax revenues or "cash on hand," could have been allocated to other purposes in the first instance. 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). 
And:
That the specific common school property levy is only a portion of the state funds used to support common schools does not alter the protection afforded to the entire basic education allocation as a "'state tax for common schools"' within the meaning of article IX, section 2. 
On page 16-17 of the ruling we see item after item explaining school funding:

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.

While some other constitutionally restricted state funds continue to be maintained in separate accounts (e.g., common school construction fund (WASH. CONST. art. IX,§ 3), gas taxes for transportation purposes (WASH. CONST. art. II,§ 40)), 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.
The school construction fund, unlike other restricted common school funds, continues to be held in a segregated account. The trial court correctly held that the Charter School Act's provisions authorizing diversion of these restricted funds are unconstitutional.
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 ofthe state general fund. Br. ofResp't/Cross-Appellant State of Wash. at 40. 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.

Other key items to keep in mind

  • In its ruling, the majority obviously used read language of the initiative and what was in the voters' guide to compare with what the Constitution says about public schools.  They note that the language of the initiative explains that they are "governed" by a charter school board that is appointed or selected unlike public schools that have an elected school board who governs them.
  • Another issue is found  on page 11 of the ruling where the majority state that they did NOT address the plaintiffs' other issues because the Court felt that without funding, charters just could not exist. 
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.
  • Still another issue is found in Article III of the Constitution where the Executive Department is named which includes the Superintendent of Public Instruction.  Section 22 on page 18 outlines the Superintendent's duties.

The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law.
At this blog, I had said I thought the Supreme Court would "split the baby" and give charters two choices.  One was that charters could choose to exist but they just couldn't have state funding OR charters could get state funds but must be overseen by the Superintendent to get them.

State Superintendent Dorn said as much himself in at statement in 2013.  I perceive the charters could get around the "elected board" by submitting to some form of "supervision" by the State Superintendent.  (Now we can all argue the meaning of "supervision" but it surely does not mean just handing out state dollars.  Nor could it be construed to mean just testing.)

The majority also disregarded the argument made by the State that the Legislature
can determine what institutions shall receive the proceeds of the school fund, and that whatever they determine to be entitled thereto becomes ipso facto a common school, ii) begging the whole question, and annulling the constitutional restriction.
Beyond not qualifying for funding, the Court, again using Bryan, said that discipline at common schools had to be the same and would not under the charter law.  They want "uniformity of the common school system.

Dissent (lead justice on this was Mary E. Fairhurst)

It's fairly short and to the point.

1) Charter schools are not common schools.

2) 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.

Here's the heart of the funding issue: the majority believes that whether the education dollars come from different places, all that funding must serve common schools.  Charter schools, under the current law, do not meet the constitutionally-shaped definition of common schools.

But the dissenters on the Court say that the law does NOT divert resources from restricted funds - meaning, common schools still get all the restricted funding.  BUT that does not stop the Legislature from funding the charter schools from ANOTHER area of the General Fund.
Thus, only 28 percent of the revenue appropriated for public education from the general fund is restricted. Because charter schools account for merely 2 percent of Washington's public schools, they can certainly be funded through the remaining 72 percent of the appropriation from the general fund. Importantly, nowhere does the Act expressly require the State to fund charter schools with revenue from the state tax for common schools.
So certainly, take money from the General Fund to source charter schools.  My big question would be (and I know this would be of interest to many other programs in the state) - who loses money so that charters are funded?   Because unless our state finds other revenue to increase the General Fund, some other program/department/entity that is currently funded from the General Fund will probably lose some funding to charter school funding.


Justice Fairhurst makes much of the fact that "the "Act" does not expressly require the use of any of the three 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.

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. 3
 That last fact looks to be true for its first half (and that was probably the sole piece of brilliant writing of this law).  But obviously, the majority did not believe the second half of that statement to be so just because the first half is true.

On page 15, she goes onto say that

Second, even assuming that appellants and the majority were correct and the entire appropriation for public education was restricted solely for the use of common schools, the nature of an appropriation is that it is finite and renewed every two years.
Thus, it is well within the realm of possibility that the legislature may appropriate charter school funding separate and apart from the basic education appropriation in future budget bills. Indeed, in Yelle, the remedy was to fund vocational education using monies from the general fund the following biennium, not to abolish vocational schools.
Interestingly (and I'm always fascinated when justices try to intowhit what voters might have been thinking - as if that is even possible), Fairhurst says:

Appellants argue that voters would not have passed I-1240 if they knew that charter schools were not common schools and, as such, could not be funded with restricted common school funds. I disagree for three reasons.

Her reasoning is that I-1240 would have passed whether or not voters knew 1) that charter schools would not be common schools and 2) would therefore receive restricted funds.  She says voters were more concerned over the "diversion of unds from local school districts rather than the source of the funding."

That is some wrong thinking on her part.  Just because an area of dispute does not get brought up during a campaign does not mean it would not have mattered to voters had it done so.

She also says that I-1240 had a severability clause (which means that some sections could still be enacted even if others were severed.)  Therefore, you could apply it and that voters would still have enacted the law.

Can I just say that Justice Fairhurst gives voters a lot of credit?  I don't think most voters (and this includes me) always understand everything written in every single initiative and if neither side brings it to the voter's attention, well, there's no real way to say what a voter would have thought had it been done.

I think she fails here:
The majority believes that the voters would never have passed the Act without a funding source. Majority at 19. But the voters did just that because the Act itself does not contain any reference to a source of funding. This is not an uncommon occurrence, as Washington voters have enacted unfunded initiatives in the past. See Fed. Way Sch. Dist. No. 210, 167 Wn.2d at 520 (acknowledging voters passed legislation mandating cost of living increases for teachers but that the legislation provided no funding source).
I-728 and I-1351 are good examples of unfunded mandates.  But for both of those, voters DID know they were unfunded.  Voters for I-1240 presumed (and were allowed to presume) that charters would be funded from the same state funds - indeed, "funding follows each student" - as regular public schools.

Conclusion

Motion for Reconsideration 
 
This is when a party that is affected by a trial court's order asks the same court to reconsider the order, based on new facts, circumstances, or law.

Motions for reconsideration are very rarely successful or even useful in any meaningful way. Courts do not welcome or favor them.

Where merit is found in the motion, the court may grant reargument or it may modify the opinion and mandate in response to the action sought by the motion.

(a) Grounds for New Trial or Reconsideration. On the motion of the party aggrieved, a verdict may be vacated and a new trial granted to all or any of the parties, and on all issues, or on some of the issues when such issues are clearly and fairly separable and distinct, or any other decision or order may be vacated and reconsideration granted. Such motion may be granted for any one of the following causes materially affecting the substantial rights of such parties:

- irregularity in proceedings
- misconduct of prevailing party or jury
- accident or surprise
- newly discovered evidence
- excessive/inadequate damages

This is where we stand today.  The Attorney General's office has filed a notice of reconsideration (within the scheduled period of time).  The Washington State Charter School Association got an extension to file their reconsideration until October 24th.   There is no timeline for the Court to rule on motions for reconsideration.  You'd think they would do this in a timely manner.
 
So the Supreme Court would have to see if either the AG or the WSCSA have new evidence or other valid reasoning.  They are basically going to have to say that the Court either missed consideration of a legal issue OR didn't get it right in their consideration of the legal issues.  I don't think you'll get two Justices to say, "Whoops, got that wrong, you're right."  

From the AG's office:  The State's motion asks the Court to reconsider its ruling because the opinion "goes beyond what is necessary to resolve this case, creates tension with other decisions of the court, and calls into question programs far beyond charter schools."

To their first point - "goes beyond" - I'm not sure what they are talking about.  If something is unconstitutional in a law and cannot be severed, the Court can throw the whole thing out.  

To their second point - "tension with other decisions" - that happens sometimes but it's akin to "two wrongs don't make a right."  Meaning, you don't make a decision simply because it will affect other ones.

To their third point, again, if there are indeed programs that would be affected by this ruling (and Rep. Gerry Pollet seems to have effectively demolished the Running Start red herring), then those can be addressed by the Legislature.  The Court has wisely allowed the legislative branch to do their jobs.

The one point I would agree with is that the charter schools that are overseen by Spokane School District are different than ones overseen by the Charter Commission.  
 
Additionally, the AG's office filed a separate motion that would stay the effective date of the the ruling until the end of the school year.
 
While the Court's timing was abysmal, AGAIN, part of the blame for upset charter parents lies at the feet of the Charter Commission and charter schools who did NOT do the right thing and advise prospective parents of this lawsuits and ALL its possible outcomes.  And no one is having these students change schools "mid-year" - that's nonsense and the AG should know that.
 
From the WACSA:
 
WA Charters and other advocates defended the law in Court arguments nearly one year ago, and knew that any decision was possible. Based on insights and rulings previous to referral to the state Supreme Court, legal experts believed a decision like this was unlikely and should a ruling come out against the public charter school law, it would have been narrower—and wouldn’t have affected the entire law.
 In fact, a previous ruling from the King County Superior Court indicated that the “common schools” funding provision could be separated from the other elements of the law, which would be otherwise left intact.
Quite the implications in this Q&A.  "Believed" versus hoped?  And after the ruling from the King County Superior Court was appealled to the Supreme Court, those schools and this Association should have warned parents and did not.
 
The Washington State Charter Commission also weighed in and it is one of the most aggressively pro-charter writings that they have ever put out.
The Court must understand the peril students are placed in when the continuity of their education is upended. Abrupt changes in schools have such a negative impact on students, especially those already dealing with instability outside of school. This impact is not only immediately destabilizing, but has effects on successful graduation, future employment, and likelihood of incarceration. The Court should act to prevent such effects by allowing public charter school students to remain in their schools of (note: the e-mail I received cuts off here).
But again, we don't know for certain how many of these students are at-risk youth.  No data on who enrolled where has been released and while the charter law is weighed towards charter schools that serve at-risk youth, if the data is not there to support who is in the schools, then pulling at heart strings cannot be part of an impartial, objective look at this law by the Court.

State Superintendent Dorn has also weighed in (partial) .  

As state superintendent, my responsibility is the education of our students. That includes charter school students. Whether you agree or disagree with the Supreme Court’s ruling, one thing is clear: The nearly 1,300 students now attending charter schools must be protected. Their education is as important as the other 1.07 million public school students. 
 That’s why I strongly support the Attorney General’s call to push back the timing of the final order in the League of Women voters lawsuit—or as the lawyers put it, “stay the mandate”—until the end of the school year. Interrupting the charter school students’ education could have a number of potentially harmful effects. The students themselves would be forced to leave their schools—and teachers, mentors and friends—and begin school in an entirely new place. That could hurt not only the students’ education, but also their social and emotional health. For some at-risk students—such as those who are homeless or live in poverty—the transition would be especially difficult. 

The stay is crucial for a second reason. Transferring charter school students into public schools could place large burdens on the public schools. As one example, Lincoln High School in Tacoma could receive an additional 60 students if the Summit Olympus: Tacoma charter school closes. That requires additional staff for Lincoln, and possibly adjustments to classrooms and schedules—again, all during the school year. 

While I would agree that all Washington State public education students are Dorn's concern, the rule of law is the most important thing.  I would think the bigger question would be: is funding charter schools for this school year the legal thing to do?  It is not. 
 (And, of course, it will give the charters schools and their supporters more time to maneuver and say, "But they are established at schools they love."  Where would it end?

I just do not see the Supreme Court reversing its decision, in whole or partially.  The majority laid out - very carefully - nearly every argument the dissenting justices have and shot them down.  (The only one they did not was over the dissenters perception of what voters knew or did not know.)

I think the reconsideration is a waste time and just a way for the charters to leverage their schools being open. 

It might be the "right" thing to fund these schools for this year but not the legal thing to do especially since the charters say they DO have funding for this year from private donors.

I believe the Court will probably wait for both reconsiderations and rule on them on a single date.  I would look for a ruling very quickly after October 24th. 
The State’s motion asks the Court to reconsider its ruling because the opinion “goes beyond what is necessary to resolve this case, creates tension with other decisions of this court, and calls into question programs far beyond charter schools.” - See more at: http://www.atg.wa.gov/news/news-releases/ag-asks-state-supreme-court-reconsider-charter-schools-ruling#sthash.kIV1pbSe.dpuf
The State’s motion asks the Court to reconsider its ruling because the opinion “goes beyond what is necessary to resolve this case, creates tension with other decisions of this court, and calls into question programs far beyond charter schools.” - See more at: http://www.atg.wa.gov/news/news-releases/ag-asks-state-supreme-court-reconsider-charter-schools-ruling#sthash.kIV1pbSe.dpuf

36 comments:

Anonymous said...

Yes, charter schools can ask the legislature to fund them out of the general fund for a year. Inslee calls a special session for an hour, quick patch.

No, they can't take money from the state basic education fund, because, it's still unconstitutional, until they work out all the details.

The umbrella of a local district like Spokane seems to make sense for distribution of levy money and use of district facilities.
Or offer the option to forego local control, money, and space. The state could start a charter district and elect a state board, as long as they were limited to state operational funds only. The charters would provide their own buildings and do without local levy money.

-NNNCr

Greenwoody said...

Charter schools in other states routinely close in the middle of the school year. If the Charter Commission and Dorn are so concerned about disrupting students during the school year, they have no business supporting or promoting charter schools in the first place.

Anonymous said...

In 2010 and 2011 the legislature adopted the Common Core state standards
#1.. Must all common schools use those standards?
#2.. Must charter schools use those standards?

Inquiring Mind

Anonymous said...

The Bryan ruling indicates that charter schools are not common schools, but that ruling is about a normal school that is a PUBLIC school; it's just not a COMMON school, so it cannot receive money from the common school fund.

I don't see how referring to an article about Boston schools, especially an article titled "Undermining the Common School Ideal: Intermediate Schools and Upgraded Classes in Boston", supports the idea that high schools qualify as common schools.

I'm also not following the argument that because 28% of public education funding is from the restricted common school fund, that means charter schools cannot get any funding. Wouldn't the local school districts need less funding because they have fewer students? Doesn't that free up some of the 72% unrestricted public education funding? Or is the argument that the 72% should go to common schools until they are fully funded to meet the "paramount duty" phrase, and then after that money can go to high schools and other public schools that are not common schools?

LisaG

Melissa Westbrook said...

IM, given that the SBAC - the state test that ALL public schools must take, common or not - is based on Common Core, charter schools probably will gear their learning to it. That said, they are free to use whatever teaching methods and/or curriculum they want.

The article about Boston high schools was to show that when the common school era was happening that yes, they did include secondary education. It was an example.

I cannot speak for the dissenters but I think they are saying that yes, charters could be funded from another state source, i.e. the General Fund.

Charlie Mas said...

Because a significant part of the marketing for the charter school initiative was the promise that "the money follows the student", the only source of funding for the charter schools could be the common school fund. That's what the initiative supporters promised the voters. Now they don't want to keep that promise, but the Court won't let them break it.

While it is possible that the legislature could find some other funding source, they are not allowed to diminish the common school funding to account for the amounts spent on charters. Since the Court didn't trust them to do that, the Court had to throw out the entire law.

Anonymous said...

What's the definition of a common school in the constitution, unspecified, grades 1-6? The constitution also says that the state superintendent will be paid no more than four thousand dollars, which is very specific. Rob McKenna is right on the archaic and obsolete nature of these things. The solution is to define common school by grade K-12 to match modern law and reality, since the grades were undefined to begin with. The constitution also says that normal schools are public schools. Does this mean WA teacher programs should be free to students? Maybe so.

-NNNCr

Anonymous said...

Charlie Mas said "Because a significant part of the marketing for the charter school initiative was the promise that "the money follows the student", the only source of funding for the charter schools could be the common school fund."

Could you explain this more? It seems that the common school fund currently only pays for 28% of the public education. Why would saying "the money follows the student" be saying the money has to come from the common school fund?

LisaG

Melissa Westbrook said...

NNNCR, the Constitution allows the Legislature to raise anyone's salary.

So your solution is to ignore/throw out anything old? What about the U.S. Constitution?

The Legislature cannot undo the definition without voters but if they want to do so, then follow the process.

Not to answer for Charlie, but 1240 was sold that there wasn't any new spending but that every student has an amount that moves with him/her, no matter what public school he/she goes to. And that is true.

It's where the money was coming from that was NOT clarified in the initiative and the dissenters think that voters would have voted yes anyway (I don't). The majority believes that the charters have to be common schools to get access to any common school dollars, no matter where they come from.

Watching said...


I 1240 was a campaign funded at $11M and that does not include the millions of dollars spent on signature collectors. It is important to consider the amount of wealth in this state and the ability of a few wealthy individuals to influence our education system.

I find myself focusing, and liking, this paragraph:

"Moreover we have made clear that the initiative process is limited in scope to subject matter that is legislative in nature, that an initiative attempting to achieve something not within its power is invalid, and that the initiative power may not be used to amend the Constitution.'

Melissa Westbrook said...

Watching, thanks for reminding me. There's a great article that compares what was spent to pass I-1240 versus the folks at my campaign/the WEA campaign. That we got within 2% says something about charters and something about the Yes on 1240 campaign.

Anonymous said...

I'm not saying throw out the state constitution, but clearly define it. It should jibe with the RCW, like, (5)(a) Each school district's kindergarten through twelfth grade basic educational program shall be accessible to all students who are five years of age, as provided by RCW 28A.225.160, and less than twenty-one years of age.

Define common school, technical school, high school, normal school, basic education, by grade and by age. That needs to be done, that's all I'm saying.
Does the paramount duty of the constitution include funded K, or funded tech school for 20 year olds?

How does the constitution spell out the minimum and maximum ages defined under paramount education, because I'm not seeing that.

I'm no lawyer either, but I think the five AGs are blowing smoke. IMO, I-1240 is unconstitutional because it violates the most basic tenet, no taxation without representation. All public money for schools has to have public oversight of an elected board, the state superintendent, and the same financial transparency throughout that is required of public schools. Every contract and every salary in a charter school should be easily available.

-NNNCr

Anonymous said...

The terms common schools and public schools are not synonymous according to our state constitution. The public school system includes common schools AND high schools, normal schools, technical schools, and any other school(s) that the legislature defines as public schools.

It is clear that charter schools are not common schools but they are likely public schools. The court was correct in throwing out the charter school law. However, the court erred in expanding the scope of the lawsuit to address the ability of the legislature to fund public schools and public school programs as it sees fit.

According to Bryan, common schools must be governed by local elected boards. The Bryan case does not refer to public schools. As the AG points out in his motion for reconsideration, the majority also conflates this issue and, thus, calls into question a number of schools and programs including Running Start. This is not a 'red herring.' This is a real concern and the court should provide some clarity here. It can still declare charter schools as common schools unconstitutional and toss out the law. But it shouldn't declare that the legislature can't fund them out of the general fund without touching the common school fund.

Citizen Kane

Anonymous said...

What's the difference between common schools and high schools?

High schools don't need to be governed by an elected board?
Different funding pools? Where's a good explanation of how this works?

And again grades and ages defined in the constitution? Where? Kindergarten? 19 and 20 year olds in technical schools or state teacher college programs?

In context, was Kindergarten common in 1890? What age people went to normal school in 1890?

-NNNCr

Anonymous said...

From Washington Policy Center:

Attorney General Ferguson says supreme court’s ruling on charter schools will cause real harm

September 28, 2015

Last week Attorney General Bob Ferguson asked Chief Justice Madsen, and Justices Johnson, Owens, Wiggins, Stephens, and Yu of the state supreme court to reconsider their ruling striking down charter schools. AG Ferguson's excellent analysis shows these six justices have made serious errors which, if uncorrected, will hurt charter schools and other innovative school programs in Washington.


Fogged Mind

Anonymous said...

More from Ferguson above:

As the AG explains, the Court also invented a new definition of “common schools,” relying on a case from 1909, while ignoring a case from 2000. The Court now says only schools under the “total control” of locally elected school boards can receive funding. This flies in the face of reality. Schools have never been under the total control of school boards. Schools are subject to regulation by the state superintendent, the State Board of Education, countless laws passed by the Legislature, and the federal government. This new definition of "common schools" is so off-base it puts the funding of a wide variety of education programs in danger from hostile parties filing lawsuits.

Of particular note: "countless laws passed by the Legislature, and the federal government."

Interesting thought about the Federal Government.... is the imposition of CCSS requirements upon local school boards ... being correctly interpreted by the SPS school directors?

Charter or NOT, Who is running any of the schools currently?

(follow the money to the oligarchs I suspect) .... remember Arne Duncan's RttT grant techniques to force adoption of CCSS upon the states and WA legislature's quick compliance to Arne's wishes. Are not the SPS Directors today equally in line?


Inquiring Mind

Anonymous said...

Yes, it appears the word "such" is an important word in the phrasing, meaning a subgroup, which is part of the larger group. Sometimes a subgroup has the same name as the larger group. Hawaii, consisting of the islands of Hawaii, Oahu, Maui.

-NNNCr

Melissa Westbrook said...

Once again, I believe that Running Start is a red herring in this issue(and that may be true for other programs). That the Legislature may have erred in their funding for those programs doesn't make funding charter schools correct. As I said in my thread, two wrongs don't make a right. Maybe it is time to review all school funding - common or public.

I don't think the Court said this:

"But it shouldn't declare that the legislature can't fund them out of the general fund without touching the common school fund."

But the reality is that if you fund charters out the General Fund - with no new revenue - then some other program will see their funding cut to accommodate charter schools. That was NOT what voters would told would happen.


IM, I'm not sure what your question is. Are you asking who manages them (that would be their management team and charter board)? Or who is overseeing their charter (that would be either the Charter Commission or Spokane School district)?


The WPC likes to write overwrought prose to the point of near-hysteria.

NNNCr, always I am saying - "words have meaning" and apparently, never so much as in this case.

Anonymous said...

Aviation High School is a complete red herring. It is a Highline School District public school. What I see is charters trying to claim that if they can't exist then innovative public magnet schools and programs can't exist either. Which is completely wrongheaded. The point is these great programs do exist, adhere to state law, and perhaps would be duplicated or enlarged if the charterites would stop claiming to own innovation and to stop tearing apart the current system which happens to offer a whole lotta excellence despite the downside. Anyone check out the new TriCities STEM school? Awesome. And 100 percent Public. Not 'public-charter.' By the way, the existing charters need to drop that public-charter marketing schlock sooner rather than later. The moment the appeal is ruled on.

NoCharters

Anonymous said...

The majority said this: "...we find unconvincing the State's view that charter schools may be constitutionally funded through the general fund."

Citizen Kane

Anonymous said...

Why don't you stop posting tripe from WPC and read the AG's actual motion?

http://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/89714-0_MotionForReconsideration.pdf

He builds a strong case for why the majority needs to reconsider their ruling at least partially. The majority opinion unnecessarily puts schools like Aviation and programs like Running Start at risk. They can still declare charter schools unconstitutional without putting these schools and programs at risk.

And unlike Melissa, the AG and his staff actually ARE lawyers.

Citizen Kane

Melissa Westbrook said...

NoCharters, I checked out the Tri-Cities school, Delta High School, a long time ago. It looked great and I hope it's doing well because it was a great example of different orgs pulling together, creating a plan and launching a school.

CK, yes and the dissenters said that it could be done. Obviously,there's your difference of opinion.

But do keep that "at risk" stuff up - the Court is not going to listen. It's not their job to fix every alleged mistake the Legislature has made in one court case. It's their job to determine the merits of that case and let the chips fall where they may.

Nice dig at me but I already said that...at the very beginning of the thread.

Anonymous said...

Melissa wrote "But the reality is that if you fund charters out the General Fund - with no new revenue - then some other program will see their funding cut to accommodate charter schools. That was NOT what voters would told would happen."

What do you mean by "the General Fund"? Do you mean the part of the state budget that is not targeted toward basic education? Or do you mean the part of basic education funding that doesn't come from the common school fund?

LisaG

Melissa Westbrook said...

I mean the General Fund that is used for most of the funding in the state. I believe the understanding is that not all the funding for public ed comes from the Common School fund but that even if funding for public ed comes from various sources, whatever that pot of money - it's for common schools.

What I believe I understand the dissenters to say is yes, that's true BUT the Legislature could choose to fund charter schools (like any other program) out of the remaining General Fund money (after common schools are funded).

If I am wrong, let me know how I got it wrong but I've read the decision a couple of times and I believe I understand what it is saying.

Anonymous said...

Citizen Kane,

Thanks for the link to AG's MOTION FOR RECONSIDERATION

It is still very interesting to see how the various players spin this, including the Washington Policy Center.

Inquiring Mind

Anonymous said...

I do see a silver lining in this. The appeal will clarify the ambiguity in the state constitution language. The big court may not like to do that, but members chose to run for those seats and not reconsidering will be a cop out move. Be clear and have done.

moving on

Melissa Westbrook said...

Moving On, you mistake the Court's ability. They can only point out what is and isn't legal under the constitution and direct the Legislature to fix it. (Like McCleary, they can always put on sanctions but have no real power to actually GET the Legislature to act.)

Again, that the Court's ruling may have found funding issues for other programs is not the point. And again, that's the Legislature's to fix, not the Court's.

The Court has been very clear in its ruling. That others find confusion from unintended consequences isn't their problem.

Anonymous said...

Ferguson has some good points, most notably,
(2) hold that common
schools must be subject to some measure of local school board control,
rather than “complete control,” in order to align the court’s holding with
our state constitution and practical realities;

I have no issue with that, and think it is a positive clarification.

I-1240 has a lot of problems beyond being authorized by a local school board which is only the first step in creating a legal charter law.

1) The court still needs to address the issues of the level of financial transparency that charters must have to be constitutional "public" schools. Public financing = complete transparency throughout.

2) The trigger mechanism where the teachers can change the school is illegal. Constitutionally, the schools are built and owned by the community. Changing a school to a charter should require a majority or a 60% majority of the voting public in a school district.

Now that the state legislature has got money for materials and supplies, what's that cover? Anything like computers or furniture that is not a building? The charter law also needs to state that any computers or furniture purchased with state taxpayer money is stamped with a "property of the State of Washington", just like I'm sure it is in state college lounges.

-NNNCr

Melissa Westbrook said...

NNNCr, you are correct in that there are other issues. (I actually did point this out in my thread and I did provide a link to the AG's motion but I'm thinking most readers apparently didn't read the whole thing.) There's also the constitutional issue that the State Super is supposed to oversee all common schools. So either charters become common schools or they can't get funding because that funding is tied to oversight by the State Super.

As well you are very correct on who owns what. I'll have a charter school roundup thread where, in one state, the ruling was that the charter school owned most of what the state bought for it.

Anonymous said...

I mean, it's one thing for the AG to try to bring clarity to the constitution, or help keep eight schools operational for a year for stability's sake. If he's actually trying to get the court to declare I-1240 legal, which is just some cut and paste ALEC tripe, then that would be strange.

I-1240 needs to be pitched. Charter school people need to try again with a well thought through document, crafted to mesh with Washington law. First, they will need an elected state school board to access state per pupil funds. Figure out the rest of the details more carefully from there.

-NNNCr

Lynn said...

NNCR,

I don't believe advocates would see the point in having charter schools if they have to be supervised by an elected school board and follow all the regulations that public schools do. They exist to avoid the oversight and regulations.

Anonymous said...

Melissa wrote: "even if funding for public ed comes from various sources, whatever that pot of money - it's for common schools." and "The Court has been very clear in its ruling."

It's true that the Court is clear in the decision part of its ruling, but trying to follow along the reasoning isn't quite so clear, at least for me.

The 897140 ruling says "all of the basic education funds in the biennial operations budget are designated for the exclusive use of the common schools. RCW 28A.l50.380(1)" But if you look up RCW 28A.l50.380 (http://app.leg.wa.gov/rcw/default.aspx?cite=28A.150.380), you can see there is a second clause that says "In addition to those state funds provided to school districts for basic education, the legislature may appropriate funds to be distributed to school districts for other factors and for other special programs to enhance or enrich the program of basic education."

And the 897140 ruling has no explanation for why the state couldn't give money to the Tacoma school district for the charter schools which could be seen as "for other factors and for other special programs to enhance or enrich the program of basic education". It seems that the second clause is there to allow money to be spent on education which does not meet the definition of common school.

Also, it seems strange that the 897140 ruling quotes from the voter pamphlet rather than from the actual law http://app.leg.wa.gov/rcw/default.aspx?cite=28A.710.220

LisaG

Anonymous said...

Lynn wrote that charters schools "exist to avoid the oversight and regulations. "

I think they might exist to avoid the bureaucratic overhead which isn't quite the same thing. SPS is still moving students and teachers from school to school. If it takes weeks for the school district to get that done, how long would it take for them to change actual instruction?

LisaG

Lynn said...

You're assuming that Tacoma School District would agree to be responsible for the charter schools within its borders - but the distrct has not chosen to be a charter school authorizer.

The legislature has defined the program of basic instruction. The law you quoted authorizes giving districts extra money for programs that are provided in addition to the program of basic instruction. Charter schools are intended to replace the program of basic instruction a school district provides. If a district wanted to contract with a charter organization to provide after school tutoring paid for with learning assistance program funds, that would probably be fine.

Anonymous said...

Sorry, that should have been the Spokane school district, which has chosen to authorize charter schools.

Lynn, what is your opinion on what "for other factors" means in that clause?

LisaG

Melissa Westbrook said...

Lisa G,

"...the legislature may appropriate funds to be distributed to school districts..."

I take that the Legislature could find money for charters but (and this is what the dissenters said they could) but would they? I doubt it.