Charter schools can be saved, despite court ruling

Last week the state Supreme Court ruled 6-3 that funding for our state’s voter-approved public charter schools is unconstitutional because the Court’s majority believes they do not fit the definition of “common schools”. The court released its decision late on Friday afternoon before a holiday weekend, which Shawn Vestal of the Spokesman-Review called “the time in the PR cycle reserved for the burying of embarrassing news.”

The majority decided that charter schools cannot be considered “common schools” (a specific term in our state constitution) because they’re not directly governed by an elected school board and (this is where the minority dissents) that they do not see how, under current funding practices, the Legislature could disburse funds to charter schools from the state general fund in a way the majority would approve of. The majority’s rationale, based on another, century-old state Supreme Court ruling that ignores tremendous changes since 1909 in how we fund our schools, ends charters’ public funding for now.

Unfortunate timing
The timing of the ruling is unfortunate, coming just as many students are starting classes at their new charter schools. Their school year was thrown into doubt just as their schools opened, even though the case was argued last October. Spokane columnist Vestal, no voice from the right, wrote:

What we know is that the justices had 11 months after oral arguments to come to a ruling. Enough time for entire schools to go from concept to reality, and enough time for the court to produce one 20-page ruling undermining those schools, long after the last minute.

On the practical side, supporters of charter schools are scrambling to arrange private funding to keep the schools open – about $14 million. At least for this year, these schools will have the opportunity to fulfill their promise.

What now?
Charter schools have strong, bipartisan support in this state. The schools can expect even stronger public backing; voters tend to dislike seeing options taken away from kids, regardless of what the lawyers are arguing over.

What’s needed now is the political will from our legislators to fix this problem, and leadership from Gov. Inslee. So far, he has not filled the leadership vacuum.

We know the governor and Democratic legislators will be hearing from the state teachers union, which views charter schools as competition it does not want. State leaders need to show that the student populations which charter schools serve – frequently, underprivileged kids and children of color – are important, too. The governor’s personal leadership is needed not just to craft a specific legal fix, but also to show that this issue, these schools, and these kids matter.

The court’s majority made legislators’ job more difficult by ruling that, under current practices, it does not believe the state can merely fund charter schools out of general fund monies because “common schools funds” aren’t really segregated from other funding. That sounds more like an accounting problem than a constitutional one. Some legislators, such as Rep. Drew Stokesbary (R-Auburn), believe that problem could be overcome by simply better segregating the accounts.

The Seattle Times, in calling for the court to reconsider, pointed out a few ironies:

The solution to this vexing funding problem, and to charter schools’ legality, can be found in the court’s minority opinion by Justice Mary Fairhurst. Joined by justices Steven C. González and Sheryl Gordon McCloud, Fairhurst argued that, while the state has some funds restricted to support only “common schools,” the majority of state education money — 72 percent — is not restricted. The minority opinion points out how much the state’s education financing system has changed since the precedent the majority opinion cited.

And it’s about to change even more. In a separate matter, the Legislature is working to overhaul the state’s outdated system of depending too much on local levies to pay for basic education. The result is a woefully inequitable education in districts across the state. Under order from the state Supreme Court to correct that imbalance, lawmakers are working to flesh out levy reform and make other changes to ensure equity.

I agree with the Times that the court should reconsider its ruling and clarify some of the new questions it perhaps unintentionally raised (for instance, could its definition of common schools result in funding for Head Start and other programs also being declared unconstitutional?). I remain confident that a legislative fix can be found to restore funding for these public charter schools that the voters themselves enacted into law. All that’s needed is leadership.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.