OLYMPIA, Jan. 8.—State schools chief Randy Dorn says he won’t take Washington voters to court to challenge last year’s charter-schools initiative – as long as lawmakers do a big rewrite on I-1240 during their upcoming legislative session and put him in charge.
Dorn delivered his message in an email to lawmakers Tuesday morning. He urges them to amend I-1240 to place the state Office of Superintendent of Public Instruction at the head of the new charter-school system. Washington voters said yes to charters last November after four ballot measures and nearly two decades of successful opposition from the state’s K-12 establishment, particularly the state’s dominant teachers’ union, the Washington Education Association. That made Washington the 42nd state to greenlight the concept. The measure allows as many as 40 independent public schools to be established with public funds over the next five years.
Dorn’s decision had been widely anticipated. Ever since the election he has been hinting at the possibility of a legal challenge on constitutional grounds. Already WEA has announced plans for a lawsuit of its own. But in his letter the schools superintendent takes a rather more conciliatory approach. He says lawmakers can satisfy him during the coming legislative session by amending the initiative and putting his office at the top of the organizational chart.
“Let me be clear,” he writes. “I am not arguing for or against charter schools, but simply raising the question of the initiative’s constitutionality. I-1240, however, creates a governance structure for charter schools which I believe violates our state’s constitution, and is not accountable to the people.”
No Lawsuit for Now
In fact, Dorn argued against charter schools during the campaign. He said they would drain resources from existing K-12 schools at a time when the state Supreme Court has ruled lawmakers aren’t spending enough on basic education. The constitutional question is a rather different animal, a dry matter of legal language. The state constitution says the superintendent of public instruction “shall have supervision over all matters pertaining to public schools.” And under the initiative, the charter schools would be overseen by a new state charter schools commission, appointed by elected officials.
“This structure is clearly unconstitutional, but can be easily repaired,” Dorn says. He urges lawmakers to pass an amendment that would make him the elected official responsible for charter schools as well as the current K-12 system.
Agency spokeswoman Kristen Jaudon says Dorn will hold back on a lawsuit as long as the Legislature takes action. “Mr. Dorn believes the initiative needs clarity,” she says. “He is trying to get clarity from the Legislature through amendment. If they cannot provide it, he feels the Supreme Court should decide the initiative’s constitutionality.”
Game of Chicken?
So now lawmakers have to decide if they will take the deal. Certainly they could enact Dorn’s changes if they wish — the Legislature has the ability to amend any initiative, just as it can any other law. During the first two years after passage it takes a daunting two-thirds vote of the Legislature, a rather difficult hurdle, and the state still will have to contend with the upcoming WEA lawsuit. But it could be a way to keep Dorn from going to court on his own or signing on with WEA.
Dorn’s office maintains it has authority to go to court, as long as it uses its own funds. That’s another tricky point. Normally the agency is represented by the state attorney general’s office, which points out that in this case it is required to defend the initiative. State law says agency directors cannot go around the attorney general’s office to seek outside counsel. Though the state Supreme Court ruled two years ago in a widely publicized case that the attorney general’s office could not deny representation to the state lands commissioner when it disagreed with his legal position, the ruling didn’t address a situation where the state’s position is mandatory.
The initiative’s backers and supporters insist the initiative is bulletproof and the Legislature doesn’t have to do a thing. Liv Finne of the Washington Policy Center points to section 204 of the measure. That section spells out the state laws that apply to charter schools – among them rules regarding basic education, essential academic requirements, staffing and performance reporting. Those functions are supervised by OSPI. Finne argues that is sufficient to meet the constitutional test. She notes that existing K-12 school districts themselves are allowed plenty of latitude under current law.
As for accountability to elected officials, Finne notes that the state charter schools commission will be appointed by electeds – the governor, the speaker of the House, the president of the Senate. So there shouldn’t be concern there, either, she says.
Finne says Dorn’s announcement might be considered a face-saving move. Yet charter school advocates still can take it as good news. “It appears that Randy Dorn has decided not to turn to the courts to challenge the charter school initiative,” she says. “And that is good news for the students of Washington, especially students stuck in struggling and failing traditional schools.”
WEA Moving Forward
Meanwhile WEA is moving ahead with plans for its lawsuit and is talking to potential allies, says union spokesman Rich Wood. “There are several constitutional problems with I-1240 beyond those identified by Superintendent Dorn,” he says in an email. “The constitutional issue he identifies – the lack of control and supervision of charter schools by people elected by and accountable to the public – is very significant, but he only suggests a partial solution. A ‘simple amendment to make the Superintendent of Public Instruction the elected official responsible for the administration of education, responsible for state level administration of the new charter schools’ does not address the lack of public control and accountability at the local school level, and it does not even address completely the constitutional issue Dorn identified — let alone the other issues with I-1240.”
Shannon Campion, executive director of Stand for Children, one of the groups behind the initiative, says backers think they would win in court. The initiative underwent “an extensive legal review during the drafting phase and we feel very confident that it is constitutional,” she says. “And the important work to get on with right now is the work of implementation.”
Dorn’s letter says:
“Last November, the voters of the state of Washington approved Initiative 1240 (I-1240), creating a system of independent charter schools in our state. Both before the election and since, I have expressed concerns regarding the constitutionality of this measure. Let me be clear—I am not arguing for or against charter schools, but simply raising the question of the Initiative’s constitutionality. I-1240, however, creates a governance structure for charter schools which I believe violates our state’s constitution, and is not accountable to the people.
“I am writing you to make my concerns clear, and to offer my assistance in amending this new statute to remove this constitutional issue.
“Article III, Section 22 of our Constitution states: “The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law.”
“In practice and under law, the legislature and Governor adopt the laws governing our public schools. The Superintendent of Public Instruction then distributes funds to the various Educational Service Districts and Local School Districts, and monitors and supervises those local bodies in their administration of our schools. This relationship is entirely consistent with the Constitution. Under this structure, there is direct accountability to the public. The Governor, the legislature, Superintendent of Public Instruction, and local school boards are all elected by the people of the state of Washington.
“I-1240 creates a separate system of public schools – the new charter schools – in which a new independent, unelected agency, the Washington Charter School Commission, takes the place of the Superintendent of Public Instruction in terms of state level administration, with unelected Charter School Boards assuming the traditional school district role of local administration:
“· Section 203 of 1240 says local Charter School Boards shall “manage and operate the charter school and carry out its charter contract.” These Board members are not elected by the people. If their charter is granted by the Commission, their decisions can’t be reviewed by any official elected by the people.
“· Section 208 of 1240 says, “the Washington Charter School Commission shall, through its management, supervision, and enforcement of the charter contracts, administer the portion of the public school system consisting of charter schools…” Members of this new Commission are appointed by the Governor and the legislature, and receive staff support from the Governor’s office. During their term, they are not accountable to the people or to an official elected by the people.
“I-1240, therefore, creates a separate governance structure for these new public schools in which the Superintendent of Public Instruction has no supervisory authority, and the public has no oversight. The Commission is the state level administrator, while the Charter School Boards provide local administration. These unelected bodies will have the power to spend the peoples’ money without being accountable to the people.
“This structure is clearly unconstitutional, but can be easily repaired. A simple amendment to make the Superintendent of Public Instruction the elected official responsible for the administration of education, responsible for state level administration of the new Charter Schools would create a structure consistent with the Constitution, and our current system of public school governance.
“The voters have decided in favor of creating a new system of public charter schools. By working together on some simple language changes to I-1240, we can honor that decision without violating our constitutional system of education governance.
“I look forward to working with you on this vital issue.
“State Superintendent of Public Instruction”