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Constitutionality of Washington charter schools argued in state Supreme Court

On Thursday morning, the State Supreme Court heard oral arguments on the constitutionality of charter schools in Washington State. The arguments and questions from the justices focused primarily on school funding, supervisory authority, local accountability, and the ability for charter school teachers to collectively bargain.

Back in 2012, voters approved an initiative to authorize public charter schools in Washington. But, the law was struck down in 2015 after the Supreme Court ruled that these schools did not fit the definition of “common schools” and therefore could not receive money from the general fund. The legislature responded by tweaking the law so that funding for the charter schools could come through the “Opportunity to Pathways Account,” an account funded by the state lottery. Following the legislature’s changes, the King County Superior Court ruled that charter schools were constitutional.

El Centro de la Raza, the League of Women Voters, and the Washington Education Association appealed the decision, which had its hearing this morning.

During the hearing, Paul Lawrence, counsel for the petitioners, argued that even with the change in funding put in place by the legislature, charter schools remain unconstitutional. He argued that Washington’s Constitution (Section 2 Article 9) outlines four specific kinds of public schools allowed in the state – common schools, high schools, normal schools, and technical schools. Lawrence argued that this is an exclusive list that charter schools are not a part of.

Lawrence referred to charter schools as “private schools funded by public dollars” and asked,

“Would the framers have envisioned that type of school within this list of schools in the public education system that they were creating? I think the answer has got to be no.”

During her rebuttal, Rebecca Glasgow, counsel for the state of Washington, countered that the list is not exclusive and that to assume so would limit the opportunity for future school innovation. Former Washington Attorney General Rob McKenna, who also spoke as counsel for the state, rejected the notion that charter schools are private schools in that they are free and anyone can attend.

Lawrence also discussed the governance of charter schools. In common public schools, school boards are elected positions and are therefore directly publicly accountable. Charter schools, on the other hand, are run by an appointed commission, a feature that he says removes the role of the public.

McKenna refuted Lawrence’s claim about the necessity for local control.

“There are many forms of public school in this state that are not governed by the local voters. Take for example, high school students that attend Bates Technical College, or Clover Park or Lake Washington. Those programs are governed by an appointed board of trustees, not by an elected school board.”

Throughout the arguments, several of the justices’ questions focused on the collective bargaining rights of charter school teachers. As public employees, the justices questioned the constitutionality of excluding these teachers from the collective bargaining of other teachers.

“What you pay teachers is really part of the heart of the charter school issue,” said Lawrence. “Charter schools are funded as if they’re paying their teachers like everybody else. But they’re not required to pay their teachers like every other school district.”

Glasgow says that since charter schools are a new public entity, the legislature is allowed to give them a new bargaining unit.

“It’s not at all uncommon for the legislature to add a new type of bargaining unit when it’s creating a new thing. Here, it was creating charter schools and it added a new bargaining unit.”

A decision on this case is not expected to be reached for months.