Washington State Charter School Ruling: Part One, Overview of Reaction to Ruling

There will be three threads to this topic.
  • Overview of Reaction to the Ruling
  • The Ruling Itself
  • Current Overview
Part One: Overview of Reaction to the Ruling

Simply put, many people - from the unscrupulous folks who wrote this law to those overseeing charter schools to those running charter schools - made a deliberate choice to gamble with children's academic lives.  And they lost.

The people who wrote this law should get the lion's share of blame.  The wording of the law very much mirrors what the ALEC group's template charter law looks like.  It appears that almost no attempt was made to mold this law to fall within the boundaries of the Washington State Constitution.  I'm certain that many well-paid lawyers reviewed the initiative and may have even warned the proponents of the initiative that there could be constitutional issue but no matter - the initiative went forward.

The Charter Commission, who I have generally lauded, dropped the ball here.  They did not require approved charter schools to notify prospective parents - either via website or application form or public forum - that there was a lawsuit challenging the law and what the possible outcomes of the lawsuit could be including the overturning of the law.

The charter schools themselves could have done notification on their own.  To the best of my knowledge, not a single one told prospective parents or, after they opened, told current parents about the lawsuit.  (I believe there was at least one question brought up by a prospective parent at a forum  - and the charter school rep waved it off - but that's not the same as notification.) 

Finally to note, the Court chose to look only at the funding issue (rightly believing that if the funding wasn't there, the whole thing was moot).  The Court stated, in their ruling, that the plaintiffs had multiple issues with the law but the Court was only considering one.  However, there are at least two other legal issues within the law so even if somehow the Legislature "fixes" the funding, the law can be brought back into legal limbo.

If charter proponents want charters in Washington State, the best "fix" for this law is to start over entirely and write a law that is constitutionally sound.  Not "strong" or "the best charter law in the country" but one that is constitutionally sound under the Washington State Constitution.

As well, our state does well to try to get this right.  I'll have another thread with just the latest in charter school failures and scandals (one involving Michelle Rhee's husband, Kevin Johnson, the mayor of Sacramento - wonder if they know Jose Banda).

In conclusion, all this near-hysteria by charter supporters flies in the face of the fact that McCleary is not done and the Legislature has chosen to mostly ignored 1351's passage for smaller class sizes in K-12.  There is some irony in how charters say they have smaller class sizes (because they CAN control the size of their schools and their classes which real public schools can't) and yet they demand instant attention to their issues.

Get in line and take a number.
Pro-Charter Reaction

From the pro-charter side, there has been, as you might expect, a plethora of reaction.  Denial, anger, near frothing at the mouth (see Washington Policy Center) and a lot of what seems to be PR action designed to drum up support.

(One side note; at first the figure given for the number of enrolled charter students was 1,000, then went up to 1200 and then 1300.   Puzzling.)

Of course the pro-charter side has the right to be upset.

We can all agree that the timing was atrocious to the point of being almost tone-deaf.  (I had been waiting, month after month, for this decision and was wondering if it would get to the one-year mark past oral arguments as it nearly did.)   However poor the timing, most of the pro-charter side, especially those involved with the schools themselves, are the ones who deserve the blame for the shock of this upheaval.

But as I outlined above,  lot of this unhappiness from parents lies solely at the feet of the Charter Commission and/or the schools themselves.

The Washington State Charter School Association and its member charter schools sprang into action.  They got a petition going and installed  a donation button at their webpage for the "Save Washington Charter Schools Campaign."  What's interesting is that it is not entirely clear where these donations are going - to the schools themselves or to the "Washington Charter Schools Funders Coalition" - a coalition of parents, advocates, community members, and funders to provide financial support that will ensure the schools are open for the school year.

I would think if the money goes to the Coalition that it could be used a variety of ways - legal, outreach and yes, going to support the operations of the schools themselves.  Hard to know.

I also note that in reading many comments at newspaper websites - the Seattle Times, the Spokesman Review in Spokane, the Herald-Republic in Yakima, the Tribune in Tacoma - I was truly astonished at how many people believe the Court got it right.  I thought there would be many more charter supporters until I reflected that the initiative passed by less than 2% in the state and there may not be that many people who would actively rise up to fight the Court ruling.

The WSCSA also outlined what they were doing in reaction to the ruling.

- Asking the Supreme Court for an extension to filing a motion for reconsideration.  

The Court just recently granted this extension and the due date is October 23rd.  To note, Attorney General Bob Ferguson is also asking for a reconsideration.  (Want to e-mail him to let him know there are better issues before his office? 

This would seem to mean that the Court would allow state funding for all charter schools thru much of October until that reconsideration motion is heard.  However, the Court had sent the ruling down to King County Superior County to explain the outcomes and nothing has come from that court yet.

However, from the Yakima Herald:

The attorney representing the plaintiffs, Paul Lawrence, said Tuesday afternoon that they are still considering options, which could include asking a judge to halt the payments. At minimum, he said, they would want assurances that the state has a plan to get the money back.

“It certainly seems appropriate that the state needs to take steps to make sure that it gets repaid assuming the decision stays in place and becomes final,” Lawrence said.

- Making claims that this ruling could defund Running Start or tribal compact schools, etc. which are not overseen by an elected body.  

First, just to be technical, some of those items are NOT schools, they are programs (like Running Start).  Luckily Rep. Gerry Pollet has looked into Running Start and he believes that it is NOT affected by this ruling.

Running Start funds are appropriated on a case load basis TO THE DISTRICTS, under control of the elected school boards, for Running Start payments to community colleges. Districts and the community college are limited to claiming no more than 1.2 FTE combined for each student. 

OSPI has a bulletin illustrating how Running Start funds go from the state to the school district(with its elected school board) and then to the college, with local control in the form of agreements to compensate the district. 

As for tribal compact schools, I think you get into tribal versus state law which is naturally has its own complexity.
Asking the Governor for a Special Session of the Legislature to address the issue.  The Governor has flatly said no and reiterated that he did not and still does not support charter schools.

What the Governor did was to create a special Work Group made up of a small group of legislators to work on McCleary - remember that one? - because fully-funding ALL public schools for over 1M students would seem to be more important than finding funding for brand-new schools open about three weeks for just 1200 students.

I think the Governor has his priorities right.

Also, charter supporters are calling the Court's finding on funding issues for charter schools a "glitch" that needs a "technical fix."  I'll go into this further when I write about the actual ruling but while the Legislature could find a "technical fix,"  that would be devastating to many other non-education programs.

There is no easy fix despite what pro-charter supporters say.  

What is fascinating is NOT just the "this ruling is wrong" reaction but the "and let's throw everything but the kitchen sink into the argument and see what sticks" reaction.  Beyond the ruling, there are the arguments that:

- schools are already opened (who's fault is that? Not the Court's.)
- charters perform so well (a few in some states)
- these are "high-quality" charters (based on what proof?)
- we need to redefine what a "public school" is
- the ruling affects mostly poor/minority students - (I'm not sure that can be independently verified at this point)
- calling the ruling "an injustice" - (like all court rulings must be made, this one was made to be color-blind and in the best interests of upholding the state constitution.) 

Various Pro-charter Reaction:

Former Governor Christine Gregoire -  Much is being made of her saying that it's not "right" or "fair" but if you listen to her statement, she seems to be referring to the timing of the announcement and not the announcement itself.  (Gregoire also expressed surprise that the Court is fining the Legislature over McCleary when they "have not hit their deadline.")

Former Supreme Court Justice Phil Talmadge (via the Seattle Times) - “That means that they have a certain outlook about the judiciary,” said former Justice Phil Talmadge, who also served as a Democratic state legislator. “It’s basically a court that sees itself unrestrained in its authority.”

Talmadge thinks the Court "must" reconsider its ruling.  

Greg Richmond, president and CEO of the National Association of Charter School Authorizers. Richmond said:
Washington’s charter schools are overseen by and accountable to the public. Seven of the state’s nine current charter schools are overseen and held accountable by the Washington State Charter School Commission, a state agency. Who are these Commissioners? They are appointees of the Governor and the legislative leaders. Governor Inslee himself appointed one-third of the Commissioners, including the Chairman.

That's kind of a tortured logic because the real oversight of the charter schools is NOT coming from elected boards or officials.

What is interesting is the national response to what is -really - a state constitution question.  The reason that national media and other states' media are interested is that the pro-charter groups don't want any kind of threat to charters especially one that shuts the whole thing down.  (Georgia had a state ruling that partially did that but Washington State is the first to do so entirely.)

The Wall Street Journal weighed in "The Judges Who Stole School Choice," that railed on the law itself:
Charters must submit detailed applications to a state commission explaining, among other things, their curriculum, standards and plans for special-needs students. They must also submit to a public forum—i.e., a union beating.

The National Review - The War on School Choice Comes to Washington State 

For one thing, district-based school boards are not the only way for citizens and voters to exercise control of their schools; the court simply dismissed the relevance of the democratic control exercised through parental choice and charter-school boards.
Charter school boards are not in any way elected. There's nothing democratic at all about who can be on a charter school board in Washington State.

We’ll see if Washington State’s myopic mandarins really have the nerve to ask law enforcement to shut down these “speakeasy” schools in order to stop the state’s charter-school students from illegally pursuing a public education.

At least their writing is amusing.

Anti-Charter Reaction
Hugh Spitzer via the Seattle Times - (UW professor of constitutional law), dismissed complaints of judicial activism. “A court is always called activist when it issues a ruling that someone doesn’t like,” he said. “I would say the state Supreme Court tries very hard to get it right in terms of the law.”

Professor Wayne Au (UW Bothell and a plaintiff in the lawsuit) As Washington State’s Supreme Court has said: If a school is not controlled by a public body, then it should not have access to public funds. The logic is simple and compelling, and opponents of public school privatization in this country need to spread that message far and wide.

Diane Ravitch (noted educator and education historian) - It's  “is a big win for parents and public schools,” and that it “gives hope to parents all across America, who see charter schools draining funding from their public schools, favoring the privileges of the few over the rights of the many.”

Final Comments

All of this shouting by the pro-charter side does not change the main facts of the Court's ruling which was made on constitutional grounds.  If this finding affects other schools, so be it. If this finding means that charter supporters have to start over, so be it.

It's not about what anyone thinks is "fair" or "best for kids" - any kind of change involving public education and public dollars must be done under the state constitution conventions.  The Court may end up apologizing for its bad timing but I do not believe they will say "whoops" and throw out their ruling.  


Greenwoody said…
Their overreactions also mask the fact that the Supreme Court has saved Washington State's children from the terrible fate that has befallen many children in charter schools around the country.

Charter schools are rife with fraud, as we've seen in Ohio: http://www.ohio.com/news/local/charter-schools-misspend-millions-of-ohio-tax-dollars-as-efforts-to-police-them-are-privatized-1.596318

Charter schools close all the time. Nearly 60 have closed in South Florida alone: http://www.sun-sentinel.com/local/broward/fl-charter-schools-financial-audit-20150626-story.html

Charter schools are a key agent of the resegregation of American schools: http://www.neontommy.com/2010/02/white-flight-redux-ucla-report and http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/15/white-parents-in-north-carolina-are-using-charter-schools-to-secede-from-the-education-system/ and http://www.delawareonline.com/story/news/education/2014/12/03/aclu-charter-schools-causing-resegregation/19832097/

Many charter schools have discipline practices that sound a lot like child abuse: https://www.facebook.com/AmyFroggeForNashvilleSchoolBoard/posts/1076413312382932?hc_location=ufi

Thank god the Supreme Court saved us from this fate. Let's focus on the 1 million kids in WA public schools and ensure they all have a great education.
Po3 said…
Odd to me that the pro-charter movement didn't just write a bullet proof amendment, especially given that this was the 3rd or 4th time it made it to the ballet. One would think they would have made sure nothing could take it down once voted in.
Anonymous said…
It is too long to copy here, but Jim Spady, president of Dick's Drive-Thru and a huge charter supporter, laid out a very long explanation of what he says is the court's threat to Running Start, etc. from its charter ruling. I don't believe a word of it, but it is good to see how the opposition thinks.

Spady posted a comment in response to a Tri-Cities Herald article that said officials there aren't worried about funding to their own specialized schools like a new STEM school that just opened. They aren't worried about Running Start either. They sounded mainly annoyed that charter backers are trying to create a red herring as they try to save their own bacon.

Watching said…
Very disturbing that I 1240's trigger mechanism has not been a matter of discussion. We've not heard the court or Attorney General discuss this issue. Essentially, a simple majority of parents or teachers have the capacity to turn a public property, worth tens of millions of dollars, over to a private entity.

Despite a court ruling, charter schools may receive public funding. Here is how:


I'm also alarmed that the AG claims that Running Start dollars are at risk. Lots of fear mongering, here. I hope individuals write the AG about this issue.

One can not forget that AGs run for election and there are plenty of dollars from the individuals that financed I 1240- and Nick Hanauer is amongst those individuals. At one point, the legislature failed to push charter schools through the legislative session. Hanauer had a tantrum and told legislators that he was going to begin financing Republican candidates.
Watching, I will discuss the other legal issues with the law when I get to the Ruling thread.

I will say that if, for some inane reason, charter funding is made is made to charter schools (which I don't think will happen and if it does, it will be for the current charters only) there will be a lot of blowback. It's a dangerous thing to reverse yourself on a ruling and boy, there would have to be a good reason. I don't think there is one.

Also, if they did somehow keep this dog of a charter law and someone used the "trigger" part of the law, I myself would go to court. That piece of the law looks exactly like gifting of public funds and I would take it as far as I could to get it thrown out.

I didn't mention (but was highly amused) at the reaction from the Center on Reinventing Public Education (our WA state charter think tank).

"A court decision only the Kremlin could love." Seriously. I'll go more into it on my Ruling thread because they really try to stretch the legal limits of the ruling.

But they also said:

"To charter advocates, this all appeared to be politically motived. The announcement was handed down on the Friday afternoon before Labor Day, a week after most of the schools had started. The court declined to suggest remedies that would satisfy voter intent, even though the dissenting judges thought there were viable ones. And most of the judges accepted campaign contributions from the Washington Education Association, the state’s biggest teachers’ union—and also the plaintiff."

I love when court rulings come down that people hate, it's always "politically motivated." I also note that the Court sent the ruling back down to its Court of origin which is what they are supposed to do. Lastly, there were multiple plaintiffs (which charter supporters love to forget about including the solid citizens at League of Women Voters), not one. There were TWO No on 1240 campaigns (not just the union's). And that several of the dissenting judges ALSO got money from the union.

It was also pointed out to me by a reader that there is a letter in the Seattle Times from Superior Court judge Michael J. Fox from September 15th. Judge Fox makes the argument - rightly so - that the constitution is the thing. This seems to go over the head of nearly everyone who argues against this decision. It's our state constitution that the Justices had to go by and nothing else.

He says "the paramount duty" part of the constitution is the sole "governmental function so defined in the constitution." Clearly, the writers of our constitution had something pretty specific in mind.

He even points out that he, himself, voted FOR charter schools but that "I've read the court's decisoin thoroughly and am convinced it is well-grounded and based on the pertinent constitutional provisions. Any other decision could only have been based on political ideology and not our supreme law."

Catherine said…
The Impact on TVW at 7pm and 10pm tonight will focus on the charter school decision.
Anonymous said…
9/23/2015 ...

Don't miss Liv Finne's blog posting on this issue.

Five Washington state Attorneys General say charter school ruling is wrong

Apparently some of these former AG's make decisions not on reading the Constitution but by looking at other areas.

This comes to no surprise to me as increasingly our legal system is apparently more about partisan politics than the written "law".
(Could this explain Donald Trump's popularity ???)

Rob McKenna =>
“The court needs to reconsider its decision, which was not well reasoned, threatens programs beyond charter schools, and relies on a pretty outmoded concept of our school system that dates to 1909. Our ‘common schools’ look quite different today than they did back then!”

Christine Gregoire =>
“I think the [dissenting] minority opinion in that case is spot-on… The court just has to be aware of the implications of a decision like this and what it means to the children and the families when they have their children all scheduled to go to school and then are put on a moment’s notice that ‘your kid has no place to go.’ Not right, not fair.

Ken Eikenberry =>
“I am strongly in favor of AG Ferguson’s motion that the Washington State Supreme Court should re-consider its ruling on charter schools. Charter schools are a valid part of our constitutional public school system, and the question of whether they are a ‘common school’ is beside the point.

Slade Gorton contributes this =>
“The charter schools ruling was an absolute disgrace.”

If Yogi Berra had not died, I wonder what Yogi would have had to say???
There is an opinion I might have valued more than most of those above from our expert AGs.

-- Dan Dempsey

Again, look at the Gregoire footage. I think she says the timing is wrong and not necessarily the decision.
Anonymous said…
Thanks Melissa. Who could have imagined that the Gregoire comment could have been taken out of context by the Washington Policy Center ... shocking absolutely shocking.

I can see a real argument for Charter Schools as a mechanism to force SPS to provide better services. Looking at Basis charters in AZ and SPS programs for serving the gifted and talented .. is quite an argument for charters.... So what about charters and SpEd and all the rest? ... a big "nevermind" on that one I suppose.

The SPS has lots of room to Step Up in serving students effectively. So what will happen with increased funds from the state via McCleary? Will local taxes go down and SPS bureaucratic expenses increase... prolonging Ed status quo?

Vote for Burke and Geary to get the SPS headed in a better direction.

-- Dan Dempsey
All good questions, Dan.

I'll write a thread on the upcoming levies because some of your questions play right into that.
Keep in mind that of those former AGs, all but one (Gregoire) were Republicans, and Gregoire is a moderate Democrat at best.
Anonymous said…
So the Ultra High Performing Basis charter schools that began in Arizona will NOT be coming to WA.

Because .... they are for profit schools (how is that for honesty)

Basis Curriculum Map grades 5 => 12

PISA test results for 15 year-olds like I said Ultra High Performing and for profit charter schools.

-- Dan Dempsey
Anonymous said…
I know that this is a Seattle Schools blog, so a question about Spokane schools might not be appropriate, but I don't know of a Spokane schools blog.

The charter school in Spokane was approved by the elected school board in Spokane. So why did the court ruling apply to that school? I tried reading the court ruling to find out, but it only confused me further.

The court quotes the constitution: "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." That sounds as if high schools are NOT considered common schools! Is there a separate state fund for high schools?

Anonymous said…
Really serious questions:

Must all charters in WA state use Common Core State Standards?
Must all charters in WA state use SBAC tests?

-- Dan Dempsey

Lynn said…

The charter school in Spokane was approved by the elected school board but is to be governed by the (unelected) charter school board. Here's the relevant language from the court's ruling:

Relevant here, I-1240 also provides that charter schools are "governed by a charter school board," which is "appointed or selected ... to manage and operate the charter school." LAWS OF 2013, ch. 2, § 201(5)-(6); RCW 28A.710.010(5)-(6). The charter school board has the power to hire and discharge charter school employees and may contract with nonprofit organizations to manage the charter school. LAWS OF 2013, ch. 2, § 203(1)(a),(c); RCW 28A.710.030(1)(a), (c); see also LAWS OF 2013, ch. 2, § 101(2); RCW 28A.710.005(2) ("the people enact this initiative measure to authorize ... charter schools in the state of Washington[] to be operated by qualified nonprofit organizations"). I-1240 also makes charter schools "free from many regulations" that govern other schools. LAWS OF 2013, ch. 2, § IOI(l)(n)(viii); RCW 28A.710.005(1)(n)(viii). Charter schools are "exempt from all school district policies."
Anonymous said…
Thanks Lynn, I think I understand part of it better.

So the court ruling isn't directly based on the state constitution. It's based on the ruling from 1909 that expands the definition of common school from merely being under local control to one "that 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."

The school board is the "chosen agents" of the voters, but they have handed over the selection of teachers to a third party in the case of the charter school, making the charter school no longer a common school. But does that mean if the charter school had the local school board approve the hiring/firing of teachers, it would be a charter school?

Anonymous said…

But does that mean if the charter school had the local school board approve the hiring/firing of teachers, it would be a *common* school?

I understand the charter school law says they are exempt from that, but if they willingly submit to having the district approve hiring/firing teachers wouldn't they be in compliance with the constitution? Although, I'm not sure how the Spokane school board would feel about doing that...

Anonymous said…
Here's the 1909 ruling that said normal schools were not common schools:

Anonymous said…
Here's the full text of the current ruling:


LisaG, Spokane SD has approved two charters. Why the Court did not address that in their ruling is unknown to me. However, while the charters are overseen - for what is in their charter - by the Spokane School Board, the Board itself has no control over what the charter school does or does not do. They are truly directed by their own board which is non-elected.

I read the constitution about common schools that yes, other schools (like high schools) can be created but any other type of school MUST follow the directives of common schools.

Charters would not be charters if a local school board were overseeing the hiring of teachers. It would never happen.

I will go into the ruling in my next thread but I will say that this nonsense over using a "100-year old law" is silly. ALL law is based on precedents and there are old laws used by both state supreme courts and the U.S. Supreme Court.
Anonymous said…

Are you saying that I am making some nonsense "over using a "100-year old law"?
I didn't. I just said that was the ruling where the definition of "common school" was clarified to mean day to day control by a locally elected board. That's not in the constitution, so it had to appear sometime between the constitution and now. (I'll call it Bryan from now on; I just initially called it the 1909 ruling because that was what narrowed the Google search enough to find it.)

So a school which isn't a common school cannot receive money appropriated for common schools, but I haven't been able to figure out where high schools and other currently funded non-common schools are getting their funding. Do you know that information? The state budget is a bit opaque.

Anonymous said…
Or maybe there has been some ruling between Bryan and now that redefined common school to include high school? I've seen that basic education is called K-12, but I haven't seen where basic education gets mapped to being the same as common school.

JLGeary said…
Should public funds pour to Charter Schools, I doubt very much the public coffers will ever see them back,nor do I see any future ruling including a provision to recoup funds. After all, while the mechanism may be fraudulent, the reality is that the public school children will have received the educational benefit not otherwise conferred in a public school. So the Charters would potentially have an argument that they should be compensated for the service provided like any other contractor - even if the contract was ultimately found void.
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