September 9, 2015

Court axes charter schools in Washington

By Ethan W. Blevins Attorney

Over a thousand kids in Washington no longer have their school of choice. The Supreme Court of Washington decided last Friday that the state’s voter-passed charter school act violates the state constitution. The decision came on the cusp of the school year, tossing 1200 charter school students into limbo and axing Washington’s only school choice program.

Charter schools offer alternatives to a languishing public school system. Students can attend charter schools at no cost. Charter schools enjoy greater independence than traditional public schools, freeing them to innovate and compete for students. As in any other market, this competition motivates all the schools to improve.

Despite these benefits, school choice opponents sued to invalidate the charter school law. The plaintiffs claimed that the charter school act funds the charter schools with money reserved for other public schools. In a decision peppered with logical blunders, a majority of the Supreme Court of Washington agreed.

The Washington state constitution, like many others, sets rules about school funding. The Constitution earmarks special funds for “common schools” (the typical public school).

The public education appropriation amounts to about $7 billion in a given year. Only a third of that is part of the restricted common school fund. That leaves over $4 billion that the state can use to fund charter schools. And the charter school act never specifies the source of funding for charter schools.

Nonetheless, the Court held that charter schools sneak a hand into the common school cookie jar. The Court pulls the rabbit from this empty hat with several shaky arguments.

First, the Court relies on language in the charter school act that says charter schools are to be funded “as other public schools.”  The Court says this means charter schools draw money from the same pot as common schools. However, this only tells us that charter schools should get the same amount of funding as common schools, not that the funding should come from the same source.

The Court’s unforgiving analysis of this language defies traditional constitutional law. Courts usually do their best to save statutes from constitutional peril. Under an age-old doctrine called constitutional avoidance, courts will sidestep interpretations of a law that will render it unconstitutional if possible. Here, the Court dives for the only interpretation of the law that allows them to destroy it. The Court’s interpretation puts words in the lawmaker’s mouth and runs toward a constitutional problem instead of away from it.

The Supreme Court also complains that the state has failed to demonstrate that charter schools won’t use the sacred common school money. This argument upends the traditional approach to constitutional questions. Courts consistently presume that a law is constitutional and place the burden on plaintiffs to prove otherwise. Here, the Court, without explanation or excuse, flips the burden and demands that the state prove that its law satisfies the Constitution.

The Court’s powers of persuasion stoop lower. The Court points out that some of the common school money is mixed with the state’s general fund. If the charter schools draw money from the general fund, the Court says, then they steal money from the common schools, since restricted funds taint the general fund like a drop of blood in the ocean. But carried to its logical conclusion, this reasoning would mean that any time the state opens its purse, the state violates the Constitution’s restriction on common school funds. The Court may have a genuine gripe with how the state handles money, but that doesn’t bear on whether the charter schools take from restricted funds.

Even if charter schools do pilfer common school cash, that doesn’t mean the Court should scuttle the whole law. After all, the funding provision is only a small part of the entire act. Often, courts will try to “sever” the rotten part of a law and preserve the rest. That’s an important part of respecting the supremacy of the lawmaker. The key question under this “severability” doctrine is whether the law would’ve passed without the unconstitutional part.

The Court decided that the unconstitutional funding provision is so fundamental that the whole thing simply had to go. According to the Court, voters would never have adopted the charter school law without the funding provision. But, in fact, Washington voters have passed laws that don’t specify a funding source. The legislature has a free-standing appropriation power that can fund programs as needed.

In addition, the charter school law has a “severability” clause stating that should any part of the law be invalidated by a court, the rest should remain standing! The Court rolls right over this express intent of the law and sinks the whole thing anyway. The Court should have severed the thieving hand and left the rest of the law intact.

Washington’s new charter schools with 1200 enrolled students now exist in constitutional purgatory. The students don’t yet know if they will be allowed to finish out the year or will be cast out as academic refugees. The voters might still be able to save charter schools by amending the law. If nothing else, perhaps the Supreme Court’s determination to stymie choice regardless of families’ preferences will spur more school choice advocacy in Washington.

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