OLYMPIA, Jan. 3.—The state’s powerful teachers’ union will challenge the charter-schools measure approved by voters last November, perhaps no surprise given the longstanding opposition of the Washington Education Association — but it remains unclear whether state schools superintendent Randy Dorn will join in the lawsuit or file one of his own.

So begins the final play in an 18-year battle to launch public charter schools in Washington. Voters said yes 51-49 to Initiative 1240 last fall, creating a new system of publicly funded schools that will operate outside the confines of the existing K-12 system. Commonplace nationwide and far from controversial anywhere else — charter schools have been embraced by 41 other states and even by President Obama — the concept has been shot down at the polls three times in Washington due in large part to well-financed opposition campaigns from WEA. This time tech moguls spent millions to promote the measure, and the union essentially gave it a hall pass, declaring opposition but spending a niggling $200,000.

Instead the union will do its fighting with legal briefs. In a year-end letter to its 82,000 members, WEA said it has decided to finance a legal challenge to I-1240. The letter is the first public declaration that the union will take the voters to court, though spokesman Rich Wood said WEA made the decision at a board meeting a month ago.

That leaves one other major player to decide whether he will challenge the measure. Dorn, the state superintendent of public instruction, openly opposed the measure during the fall campaign and declared he believed it to be unconstitutional — a broad hint that a challenge might come from his office. But it remains unclear whether Dorn will file a separate lawsuit, or even if it is possible for the Office of Superintendent of Public Instruction to join the WEA lawsuit in any official capacity. The law requires the state attorney general’s office to defend the initiative, and it does not permit state agencies to seek outside counsel.

It took nearly two decades and a big-spending campaign to put it over. The $11 million spent on I-1240 came almost entirely from a cadre of wealthy education reformers, most from the tech community, headed by Microsoft’s Bill Gates. Now weary charter-school advocates say they wish they could get on with it – there’s plenty of work to do. “I think voters are tired of foot-dragging,” said Shannon Campion, executive director of Stand for Children, one of the groups behind the campaign.

Unlikely to Launch This Year

The measure allows the creation of as many as eight charter schools each year over a five-year period, leaving it to the state Board of Education to establish the timeline and the application process. It is expected that many of the schools will be established in low-income urban areas where existing K-12 schools struggle to meet the needs of at-risk youth. The schools would have to meet instructional standards but would be exempted from many of the rules that govern existing schools – including those that give unions a big say in hiring, firing and decision-making processes. And because state allocations of money follow the student, the more who enroll in charter schools, the less money there will be for the existing K-12 schools. “That is why the unions are so desperate to keep charter schools out of here,” says Liv Finne of the Washington Policy Center, who publicized the WEA letter on her blog Wednesday. “They show money is not the answer. It’s the quality of the people who are in the schools.”

Even if the lawsuit didn’t threaten a delay, supporters say the lengthy rulemaking process makes it unlikely that schools will open their doors this fall. First things first, the state is required to appoint a charter schools commission to oversee the new schools – and the naming of members could bring a fight of its own. There the line between advocates and opponents is clearly drawn. The initiative states that the nine-member board must be comprised of people who “have demonstrated an understanding of and a commitment to charter schooling as a strategy for strengthening public education.”

In other words, charter school advocates say, those who opposed the measure last fall need not apply. No Dorn, no WEA. The same goes for the lengthy list of names that appeared on the No-on-1240 campaign website, disqualifying a large percentage of the state’s school board members, superintendents and leaders of most of the prominent support organizations for the existing K-12 apparatus.

Campion said last year’s charter-school coalition remains intact and has been working behind the scenes to recommend names. Three members are to be appointed by Gov.-elect Jay Inslee, three by the president of the state Senate and three by the speaker of the House.

“We have been talking to other strong charter management organizations around the country and they seem to be skeptical that we could pull it together for September 2013 to start,” she said. “And that’s okay, as long as the focus is on great schools. It doesn’t help anybody to move quickly but not smartly.”

Court Will Have Say

Before anything else, it appears the courts will have to weigh in. WEA’s decision to fight, though far from unexpected, surfaced publicly in the letter that arrived in members’ mailboxes just after Christmas. In its holiday mailing, the union pointed to its big victory in the state Supreme Court early last year in the so-called McCleary decision, which requires a big-but-unspecified increase in spending for public schools. Yet it complained it just couldn’t compete with the Bill Gateses of the world.

“Though our candidates won, we are disappointed that corporate interests with their $11 million were able to pass the charter school initiative,” it said. “Looking forward, your board of directors has decided to fund a legal challenge against the new charters law and, as we did with McCleary, are seeking partners and developing an approach and timeline for this effort. More details about this will come.”

So far nothing has been filed. In an email, WEA spokesman Rich Wood said the decision to fight the law came at a board meeting held Nov. 30 and Dec. 1. “There are several potential arguments regarding the constitutionality of this initiative,” he said. “In the meantime, we’re focused on making sure the state Legislature complies with the state Supreme Court’s McCleary decision and starts amply funding our existing K-12 public schools.”

What About Dorn?

State schools superintendent Dorn has been sounding the constitutionality argument ever since the initiative was filed — essentially a matter of control. The state constitution says the superintendent, in this state an independently elected official, “shall have supervision over all matters pertaining to public schools.” As Dorn explained last September during the annual meeting of the Washington State School Directors Association, his complaint is that the measure “builds a new public system outside of the public school system. It is housed in the governor’s office. To me, that circumvents the constitution. If you want to do that [amend the constitution], it takes a two-thirds vote of the Legislature and a 50 percent vote of the public, so let us be clear, that if these are public schools – and I have some issues with the fact that we are not funding public schools today; we are creating a new system that is going to cost extra money – I want to be clear, that is a constitutional issue that I believe will have to come out.”

Whether Dorn can sue the state in an official legal capacity is a tricky legal question, and decisionmakers have been puzzling over that one ever since the election. The state attorney general’s office has advised the Office of Superintendent of Public Instruction that it is required to defend state law, and it is uncertain whether Dorn can go it alone.

Authority Unclear

The law forbids state agencies to bypass the attorney general’s office and obtain counsel on their own. And if the attorney general’s office is required to take a position contrary to Dorn, what then? The closest the courts have come to addressing that question came in a Supreme Court decision two years ago. In that case, Attorney General Rob McKenna refused to represent the state lands commissioner in a lawsuit he viewed as detrimental to the state’s overall legal interests. But the court ordered him to appoint an attorney for the commissioner nevertheless, saying the independently elected official was entitled to representation. Indeed, there are cases when the attorney general’s office has represented both sides of a case, as when agencies disagree with one another. But a key difference in a possible challenge to I-1240 is that the state’s defense of the initiative is mandatory, not a matter involving discretion. The ruling in the lands commissioner case didn’t address what might happen when there is no choice involved.

When it comes to I-1240, the role of the attorney general’s office is clear, said spokesman Dan Sytman. “One of our duties is to defend state law, and that includes initiatives and referendums, so that is what we are going to do. Since Mr. Dorn has not announced what he is going to do, it would be early for us to comment.”

No decision has been made, said OSPI spokesman Nathan Olson. But at the very least he said a challenge from the office would have to be funded by the agency itself. “It would be in our discretion, assuming we have the budget to do that, so that would be the issue. The other possibility would be partnering with others, for example, with the WEA, and then dividing up the legal costs with other agencies or people.”

Thoroughly Vetted

James Spady, the Dick’s Drive-In scion who filed Washington’s first charter-school measure as an initiative to the Legislature in 1995, insists the measure is on solid ground. Quiet during this year’s campaign, Spady said he was happy to let others take the lead this time – but his support remained rock-solid. “If I had known it was going to take this long, I don’t know that I ever would have taken this journey,” he said. Spady and his wife Fawn ended their silence last month when they organized a charter-school conference at the University of Washington – Tacoma, attended by some 150 charter school advocates and operators from around the country. Given the longstanding opposition of the K-12 establishment to charter schools in Washington state, Spady said a lawsuit certainly would be no surprise.

“I don’t think it’s a serious concern,” he said. “This law was seriously vetted for constitutional issues. There is case law which says that the Legislature has broad authority to implement a public school system. When the people pass a law by initiative, they are exercising their constitutional legislative power. So I think Randy Dorn should be helping us launch the best schools possible to help serve kids, rather than to try what will ultimately be a waste of taxpayer money and will simply delay the effort to bring these schools to our state.”