Washington State Charter School Law Upheld
On October 26, 2018, in a split decision, the Washington State Supreme Court ruled that the charter school law created by the Legislature, after a voter initiative was thrown out in 2012, is valid under our state's constitution. Here's the ruling.
As someone who has never supported charter schools in Washington State, I wasn't pleased with the news but it also didn't surprise me. Interestingly, one judge, Justice Barbara Madsen was clearly not buying it that the law makes charter schools legal. From KUOW:
What does surprise me is that the ruling leaves open some fairly interesting issues that the Legislature will have to grapple with, some which could undermine charter schools. I need to consult a lawyer on some of these issues but even reading as a layperson, I see problems for charters.
Issues:
- Charters limit the ability of their employees to organize ONLY at their school.
The majority of the justices saw this as unfair because it would be such a small group (and the strength of collective bargaining is in numbers). They said that part of the lawsuit could be "severed" from the rest.
They stated that a bargaining unit at a school district could include charter school employees. This is a great thing and I suspect the Washington Education Association and other school employee unions will see if they can organize charters.
- Next, the Supreme Court has made it clear that charters are to support ELL, Special Education and highly capable students as part of a state mandate for those groups of students.
Interestingly, the Washington State Charter Commission has on its legislative agenda for this legislative session - get more money for Sped. Charters here have stepped up their efforts around serving Sped students - I think they knew it was a major ding against them. I have not examine what types of Sped students they serve.
- On the issue of whether the Washington State Charter Commission usurps the role of the State Superintendent, the ruling says it doesn't.
(The WSCC is one of two authorizers in Washington State with the other being the Spokane School District.)
What is good is that the charter side tried to say that the Superintendent shouldn't be able to withhold funds from those schools for any reason and the Court says - yes, the Superintendent can. The state superintendent is supposed to review all the charter school budgets and, if they are not complete, he/she can withhold funding.
This is clearly something I need to look into with our state superintendent, Chris Reykdal. He runs in the middle of the road on charters but I would not call him a supporter.
- On funding.
In the first ruling on the charter school initiative, the Court said, that charters could NOT access regular public education dollars from the General Fund because they are not "common schools." Our WA state constitution calls public schools "common schools" and it's a specific definition which the charter schools did not meet. So in Washington state, charters ARE public schools but they are NOT common schools.
However, the constitution allows for other types of public schools/programs - Running Start (which is a program that allows high school students to take community college classes), tribal schools, early education, scholarships - to exist. The Legislature stuck charter schools in that group for funding.
Our state's lottery money is that source of funding and it is called the Opportunity Pathway Account. The charters were arguing that this funding will soon be exhausted, their charter costs are going up, etc. Meaning, that those other programs that access the OPTA would have to be shifted to the General Fund to get their funding because charter schools would need more dollars from OPA. (The Court has stated - twice - that charter schools absolutely cannot receive General Fund support.)
I don't know when the OPA would not be enough funding for all the groups that access it or what the Legislature will do when it does but I think that the next legislative session is the time to advocate for NOT allowing charter schools to set the agenda for the OPA fund nor should their need for dollars push other programs' costs into the General Fund.
Here's what one of our best public ed champions in the Legislature - Rep. Gerry Pollet - had to say on Facebook after the ruling:
*The charter law is vague on "local levies." I think some might believe it means all local levies but it could also mean only school district levies.
As someone who has never supported charter schools in Washington State, I wasn't pleased with the news but it also didn't surprise me. Interestingly, one judge, Justice Barbara Madsen was clearly not buying it that the law makes charter schools legal. From KUOW:
In one of the dissents, Justice Barbara Madsen said that the Charter School Act included too many exceptions on public control of charter schools.The Court said - as they did in the first ruling against the initiative that brought them into being - that they were not ruling on efficacy of charters but on whether their existence violated our state constitution.
"The Act creates a parallel public school system that provides a general education, serves all students, and uses public funds, but lacks local voter control or oversight," Madsen wrote.
What does surprise me is that the ruling leaves open some fairly interesting issues that the Legislature will have to grapple with, some which could undermine charter schools. I need to consult a lawyer on some of these issues but even reading as a layperson, I see problems for charters.
Issues:
The majority of the justices saw this as unfair because it would be such a small group (and the strength of collective bargaining is in numbers). They said that part of the lawsuit could be "severed" from the rest.
They stated that a bargaining unit at a school district could include charter school employees. This is a great thing and I suspect the Washington Education Association and other school employee unions will see if they can organize charters.
- Next, the Supreme Court has made it clear that charters are to support ELL, Special Education and highly capable students as part of a state mandate for those groups of students.
Interestingly, the Washington State Charter Commission has on its legislative agenda for this legislative session - get more money for Sped. Charters here have stepped up their efforts around serving Sped students - I think they knew it was a major ding against them. I have not examine what types of Sped students they serve.
- On the issue of whether the Washington State Charter Commission usurps the role of the State Superintendent, the ruling says it doesn't.
(The WSCC is one of two authorizers in Washington State with the other being the Spokane School District.)
What is good is that the charter side tried to say that the Superintendent shouldn't be able to withhold funds from those schools for any reason and the Court says - yes, the Superintendent can. The state superintendent is supposed to review all the charter school budgets and, if they are not complete, he/she can withhold funding.
This is clearly something I need to look into with our state superintendent, Chris Reykdal. He runs in the middle of the road on charters but I would not call him a supporter.
- On funding.
In the first ruling on the charter school initiative, the Court said, that charters could NOT access regular public education dollars from the General Fund because they are not "common schools." Our WA state constitution calls public schools "common schools" and it's a specific definition which the charter schools did not meet. So in Washington state, charters ARE public schools but they are NOT common schools.
However, the constitution allows for other types of public schools/programs - Running Start (which is a program that allows high school students to take community college classes), tribal schools, early education, scholarships - to exist. The Legislature stuck charter schools in that group for funding.
Our state's lottery money is that source of funding and it is called the Opportunity Pathway Account. The charters were arguing that this funding will soon be exhausted, their charter costs are going up, etc. Meaning, that those other programs that access the OPTA would have to be shifted to the General Fund to get their funding because charter schools would need more dollars from OPA. (The Court has stated - twice - that charter schools absolutely cannot receive General Fund support.)
I don't know when the OPA would not be enough funding for all the groups that access it or what the Legislature will do when it does but I think that the next legislative session is the time to advocate for NOT allowing charter schools to set the agenda for the OPA fund nor should their need for dollars push other programs' costs into the General Fund.
Here's what one of our best public ed champions in the Legislature - Rep. Gerry Pollet - had to say on Facebook after the ruling:
The Court upheld most of the charter school law but makes some striking assumptions and determinations that will not please the charter school proponents. Here’s a summary of the majority and dissent, the limitations which the majority opinion assumes; and, an organizing and legislative road map for legislative accountability:
The Court struck only the provision barring collective bargaining, which is good news for our educators and school support staff. However, there will be many organizing challenges and logistical questions before charter school employees are included in a local district or other bargaining unit.
Nonetheless, this is a significant step since I doubt that our Legislature will be acting anytime soon to limit collective bargaining rights. The five Justices joining the Majority decision held that this provision is severable and that the remainder is constitutional. So, what limits are now evident on Charter Schools?
1) The Court repeated that the Legislature may not use General Funds for support of charter schools. The current funding is limited to the lottery account. I will not support expanding into other funds and reducing other programs as a result – and, you should ask your legislators to pledge the same.
People often ask me: “How come we aren’t fully funding public schools since we voted to have lottery funds go to them?”
First, total lottery revenue is rather small, around $162 million per year (2017, with $127 million of that going to fund Opportunity Pathway scholarships) – the remainder of funds go right back out to people as payouts. Second, in addition to funding early learning and scholarship programs, these funds are now diverted to fund charters. So, think twice before you buy that Powerball or Mega Millions ticket.
On a side note, Bill and Melinda Gates gave money to a Republican candidate for legislature who is running to keep his job. This guy, Joe Fain, is a HUGE charter school supporter so I suspect that's why the Gates gave him money. However, Fain was recently accused of raping a woman about eight years ago after her college graduation. The woman did not file a police report at the time but told several people. She says she will cooperate with any investigation but none has happened. The GOP is standing with this guy. The Gates gave the money before she made the accusation but it's not the best look for them.2) The Court stated strongly that local school levy funds can NOT be used for charters, which is the basis for the majority finding that charters do not need local voter control. This logic should also extend to school construction bonds.*3) In finding that the provisions giving the charter school commission oversight of charters is constitutional, the Court majority wrote that the Superintendent of Public Instruction has some undefined, untested powers that the charter school advocates hoped to limit and give to their 11 member charter school commission, of which the Superintendent has just one vote.
One clear power that the Superintendent has, according to the opinion, is the power to withhold funding to charters based on some yet to be tested set of criteria or violations of standards. You won’t find such a provision in the charter school law. In order to find that the law does not strip the Superintendent of their clear constitutional powers of supervision of all public schools, the majority conveniently ignores language in the law saying the charters are subject to the supervision of the Superintendent “except as otherwise provided in this chapter.” Justice Wiggins’ dissent (joined by Justice Owens) points out quite powerfully that the Constitution does not allow a legislative act to remove some supervisory power of the Superintendent and give it to some unelected commission.
Where do we go from here:
First, we need legislation requiring charters to be accountable to the Superintendent of Public Instruction, reflecting the fig leaves of authority that the Court majority pretends exist today.
Secondly, legislation should now ensure that charter boards come from the communities they claim to serve. This means not continuing to allow them to have boards from nonprofits that are fronts and shills for for-profit charter companies (and often are not even from Washington). It’s hard for charter school advocates to argue that the board of directors should not have a majority from the parents or guardians of students and from the community the school purports to serve in its application process.
Third, we have to ensure that there is no creep of funding charters by pretending to use other dedicated funding accounts and displacing other educational, health and human services to be funded from the general fund. The charter school commission should not be permitted to authorize charters beyond the current lottery fund account – without displacing early learning and other educational programs funded from that account.
Fourth, we need to clearly enable the creation of bargaining units inclusive of charter school employees across schools and in unity with the employees of their local school districts.
As to that last point – does anyone really believe that teachers and staff in a charter school shouldn’t have the same basic pay to live in their community and remain in the profession for more than a few years, which we have recognized as essential for all other educators?
*The charter law is vague on "local levies." I think some might believe it means all local levies but it could also mean only school district levies.
Comments
Thank you for the summary.