January 30, 2015

NSCW 2015: The battle over charter schools in Washington

By Ethan W. Blevins Attorney

A Greek myth tells of a villain named Procrustes who invited travelers to spend the night on his iron bed. Obsessed with conformity, Procrustes would make sure his guests fit the bed by stretching out the short ones or amputating the excess of the tall ones. Theseus put an end to his cruelty by fitting Procrustes to his own bed. The public education system has procrustean tendencies. Government often dishes out uniform standards, methods, and programs of low quality, despite the rich diversity of students’ learning methods, circumstances, and interests. Too often, this inflexibility doesn’t give public schools the power to innovate and improve the quality of education.

Many states have responded to dissatisfaction with the lack of choice in public schools by enacting charter school programs. Charter schools are privately operated but publicly funded. Any student can attend for free. They typically enjoy far more freedom to innovate and offer a wider variety of educational options than traditional public schools. And studies indicate that charter schools provide better education to the neediest kids at a lower cost.

In 2012, Washington state became the most recent state to adopt a charter school law. The law states that “[a]llowing public charter schools in Washington will give parents more options to find the best learning environment for their children.” The law recognizes that “charter schools free teachers and principals from burdensome regulations that limit other public schools, giving them the flexibility to innovate and make decisions about staffing, curriculum, and learning opportunities to improve student achievement and outcomes.” Since passage of the law, the state has approved ten applications for new charter schools, and one has opened its doors in Seattle.

But the charter school law has enemies. Soon after the law passed by popular vote, opponents sued, claiming that the charter school act violates the state constitution. The plaintiffs prevailed at the trial court, and both sides asked the Washington Supreme Court to skip the appeals process and review the case directly. The Court held oral argument last October and has yet to issue a decision.  PLF filed an amicus brief in support of the Charter Schools Act.

The charter school opponents argue that Washington can only use public money to fund “common schools.” They argue that charter schools aren’t common schools because they are not under the complete and direct control of local school boards. Under the state constitution, “restricted funds” can only go to common schools. And according to the plaintiffs, any funds allocated to public education are “restricted.” Thus, the Washington legislature cannot fund schools that are not common schools.

The Supreme Court should hold that charter schools aren’t “common schools.” The plaintiffs’ “voter control” argument relies on a small portion of an antiquated judicial decision that didn’t strictly hold voter control to be a constitutional requirement. Plus, this argument would seem to invalidate many Washington schools that have long existed and don’t satisfy the Plaintiffs’ artificial “voter control” test.

Even if charter schools aren’t “common schools,” nothing in the state constitution prevents the legislature from funding them. Everyone agrees that the legislature can’t use “restricted funds” to fund non-common schools. But those funds only account for about one-third of available public money. The remainder can fund non-common schools.

The Supreme Court should uphold Washington’s Charter School Act. The Act satisfies the state constitution and is good for Washington’s kids. Students deserve more choices than Procrustes’ iron bed.

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