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Are Charter Schools Legal in Washington State? As Sector Continues to Grow, Court Will Take Up the Question — Again

By Kate Stringer | May 16, 2018

It’s been nearly three long years since the Friday before Labor Day weekend in 2015, when eight new charter schools that had just concluded their first few days of class got some unsettling news: The Washington state Supreme Court had ruled charters unconstitutional.

To understate the case, a lot has happened since then. Six months after the ruling, the legislature passed a law to fix the funding problem that was the basis for the court’s ruling. But another lawsuit by the same plaintiffs followed, alleging the fix was insufficient. As the new case has made its slow progression through the courts — including a ruling for the charter sector and a subsequent appeal — the charter sector has continued to grow, with new schools and grade levels opening each year.

On Thursday, the court will hear oral arguments in the second lawsuit; the same nine justices in the 2015 ruling will decide whether the 2016 law sufficiently addressed the court’s prior objections.

Patrick D’Amelio, CEO of the Washington State Charter Schools Association, said he has “great confidence” that charters will receive an affirmative ruling. “The charter law was set up to close gaps,” D’Amelio told The 74. “The kids we are serving are kids from low-income households, they come to our sector behind academically, and are showing great progress. When I think about what’s at stake, I think about how this is going to impact them.”

In the 2015 6-to-3 vote, the court found charter schools unconstitutional because they weren’t governed by a locally elected school board. Therefore, the court argued, charters didn’t fit the definition of a “common school” and couldn’t receive tax dollars meant for public schools.

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To fix this, legislators passed a bill that changed how charters were funded, fueled by intense activism from charter school educators, parents, and students. Rather than receiving funds from the same pot of tax dollars designated for public schools, the new law said, charters would receive money from the Opportunity Pathways Account, fueled by state lottery revenue.

But the plaintiffs — including the League of Women Voters, the Washington Education Association, and El Centro de la Raza — argued that this funding switch still doesn’t address the central issue: that charters are not held accountable by locally elected school boards, yet continue to receive public dollars.

The plaintiffs also argued that because the state has been dealing with an ongoing legal battle to fully fund public education, as mandated by another Supreme Court ruling, this is not an appropriate time to divert state dollars away from traditional public schools.

“Sending public money to schools not run by publicly elected school boards is the issue,” Ann Murphy, president of the League of Women Voters of Washington, told The 74.

Joshua Halsey, executive director of the Washington State Charter School Commission, argues that even though charters don’t operate under a locally elected school board, they have to answer to ongoing accountability measures around financing, academic performance, and special education services from the charter commission, the Office of Superintendent of Public Instruction, and the Washington State Auditor’s Office.

“When I hear that charters are not held accountable in Washington state, that is not accurate,” Halsey told The 74. “These schools are held accountable to an extremely high degree.”

Even before the lawsuits, charters have faced an uphill battle in Washington, one of the last holdout states to allow them. Voters narrowly approved them in a 2012 ballot initiative after several failed attempts.

Currently, 10 charter schools operate in Washington state, serving 2,400 students, the majority of them from low-income households. Two more schools have been authorized to open in August. Notably, founding freshmen at some of the high schools will begin their senior year this fall.

More than 1,400 charter school students from kindergarten through 11th grade will be at the capitol Thursday to learn about the judicial process. They will watch a livestream video of the oral arguments and tour the building, the charter schools association said.

While plaintiffs and defendants are hard-pressed to speculate on how the judges will rule, other voices recently raised concerns over what they said was bias from Justice Mary Yu toward one of the plaintiffs in the charter case because of a speech she gave at a teachers union rally. Republican state Sen. Michael Baumgartner called on Yu to recuse herself from the charter case.

“Yu’s decision to speak at a WEA event raises doubt that she can rule impartially in the charter school case,” Baumgartner said in a statement. “When a justice appears before an organization that has an active case before the court, it really crosses the line. The only proper thing now is for Yu to recuse herself from the case.”

Judges are allowed to attend political events but can’t speak about pending cases. Yu told the News Tribune that she will not recuse herself and that her speech was not political, instead encouraging teachers to invite judges into the classroom.

The charter schools association released a statement saying recusal was not necessary. “Our association, schools, families, and students have the utmost respect for the Supreme Court and its ability to determine cases based on the merits. We do not believe any recusal is necessary or justified,” the association said.

It is unclear how long the court will take to make its ruling. Last time, the decision was pending for a year before the judges ruled against charter schools.

Disclosure: The Bill & Melinda Gates Foundation provides financial support to The 74 and the Washington State Charter Schools Association.

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