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Wait, What? Washington Supreme Court Finds Charter Schools Unconstitutional

I’ve got to admit, Little Eddie’s faith in judges’ ability to fairly decide education issues is beginning to fray. Or it would be accurate to say that I’ve moved past fraying, and that my confidence has fully fallen apart at the seams like the blanket I’ve been dragging around with me since infancy.

Back in June, the Colorado Supreme Court made a dangerously broad decision to strike down the Douglas County Choice Scholarship Program. Not long after that, a retired Colorado Court of Appeals judge handed Thompson School District perhaps the most heavily flawed “legal” document I’ve ever seen after a questionable (and expensive) non-binding arbitration process related to the district’s negotiations with its local teachers union.  Then, a Larimer County District Court judge contorted herself into a logical pretzel in order to force Thompson to abide by the terms of a contract that the board has voted down three separate times in one form or another.  

But as frustrating as judges have been in Colorado this year, our problems are small compared to a jaw-dropping 6-3 Washington Supreme Court decision that charter schools are unconstitutional. I actually had to read that headline twice to make sure I hadn’t misunderstood.

Sadly, I hadn’t. The ruling, made after nearly a year of deliberation, is exactly what it sounds like. It is designed to choke off funding to nine new charter schools in Washington with a combined 1,200 students. That’s great news for the Washington Education Association and the other plaintiffs. The affected families are probably an awful lot less excited—especially because most schools in Washington started a week ago.  It remains to be seen how exactly this will play out in practice for Washington’s handful of charter schools and their students.

Robin Lake provides the best synopsis of the full decision in a recent blog post:

The ruling was not based on the merits of the law (one of the strongest in the country on accountability). Nor was it based on the words of the state constitution. Instead, the majority cut off all funding from charter schools (the specifics on when and how to be determined by a lower court) by relying on an obscure 1909 judicial interpretation of the words “common schools.” These words are found in the state constitution, but aren’t defined. The majority held that under this century-old definition, the charter school law did not subject those schools to enough “local control,” and therefore is unconstitutional.

The Washington Constitution’s mention of “common schools” paints a pretty broad picture that could easily include charter schools—which are, as we all know, public schools. So, as Lake points out, the justices reached back to a ruling older than my grandpa, School District No. 20 v. Bryan, to find the ammo it was looking for. I can’t help but imagine the justices who authored that decision riding to work that morning in a brand-spanking new Ford Model T, which was just introduced the previous year.

But that’s beside the point. Here’s the language drawn from that decision:

 [“Common schools” are] 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.

In essence, the Washington Supreme Court used this language to argue that because individual charter boards are not elected by voters, there is not sufficient accountability in place for these schools to receive public funds. That’s interesting logic, as it assumes that district school boards exercise far more control over hiring and firing decisions than they actually do, particularly under the strict requirements of union contracts and teacher tenure statutes. And as a Center for Education Reform release points out, charters in Washington are actually subject to more accountability than traditional public schools.

I can’t know the hearts of the six justices who ruled against charters in this case, nor can I claim to be an expert on the intricacies of Washington education statute. But a review of the decision and related analyses leads me to believe that this was, once again, a politically motivated decision based more on philosophical leanings than a clear reading of the law. Certainly, it’s a radical departure from rulings in other states, including Colorado. Rick Hess points out the weird inconsistency of the Washington decision in a National Review analysis:

In finding charter schools unconstitutional, the Washington Supreme Court has broken with the courts in California, Colorado, Michigan, New Jersey, Ohio, and Utah — all of which had rejected similar constitutional-based attacks on charter-school laws. Indeed, after 25 years of charter school laws, and with 7,000 charter schools in more than 40 states, charter schooling is has been deemed legal in every state where the question has arisen.

I, for one, am getting a bit bored of political activists in black robes forcing the law into questionable ideological boxes. And I’m still waiting for the teachers unions to return education policy decisions to state legislatures “where it belongs.”