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