The Washington Supreme Court issued a plurality opinion today that affirms the legislature’s modified Charter School Act is constitutional, striking down just one provision in the law that would’ve limited charter school teachers’ ability to unionize.

“… we affirm the trial court in part, strike the provision that we find unconstitutional, and hold that the remainder of the Act is constitutional on its face.”

The decision is the latest in a long, contentious journey for charter school legislation in Washington state. In 2012, Voters approved initiative 1240, which allowed the creation of up to 40 charter schools over five years (voters had defeated charter-school ballot measures three times prior). Then, in 2015, the court struck down the legislation, ruling that charter schools couldn’t receive money from the general school fund because they didn’t meet the definition of “common schools.”

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The legislature then introduced the star of today’s ruling: a modified act that proposes funding charter schools through an account that’s funded by the state lottery, the “Opportunity to Pathways Account” (OPA). After considering the modified act, the King County Superior Court ruled charter schools constitutional, a decision that was appealed and argued in front of the State Supreme Court in May.

Today’s lead opinion, authored by Justice Mary Yu, found that establishing the OPA as charter schools’ sole funding source was an adequate fix. The opinion also affirms that “charter schools provide the same program of basic education, employ certified teachers, meet the minimum instructional hours, and participate in the statewide assessment” like common schools. In the same vein, the opinion states that charter schools aren’t violating the state constitution by not having a locally elected school board. 

“…charter schools are not rendered unconstitutional just because they do not operate identically to common schools,” Yu wrote.

It also asserts that the superintendent of public instruction maintains his supervisory power over charter schools (as required by article III, section 22 of the constitution), despite the existence of the Washington State Charter School Commission, which authorizes and monitors the schools.  

The commission is an independent state agency made up of 11 people. Two members are the superintendent himself and the chair of the state board; nine others are appointed by the governor, senate, and the house of representatives.

“…the superintendent supervises charter schools in the same manner as all other public schools,” the lead opinion states.

Three other justices — Gordon McCloud, Johnson, and Stephens — signed on to Justice Yu’s opinion. The other justices were split. Justices González and Fairhurst concurred in part, disagreeing only with the decision to strike down the act’s collective bargaining provision.

The lead opinion argues that the provision violates article II, section 37 of the state constitution by restricting charter school employees’ collective-bargaining rights without being straightforward about it.

“… the effect of the Act is to greatly restrict the existing bargaining rights of charter school employees without ‘explicitly show[ing] how [the Act] relates to statutes it amends.’”

Justices Madsen and Wiggins authored separate dissents, with Owens signing on to both.

The decision is seen as a hard-fought victory by the Washington State Charter School Commission:

“This decision is a big win for charter students and families who have been fighting tirelessly for more than three years on behalf of their schools,” said Cindi Williams, Chair of the Commission. “Parents can now be secure that their school will continue to provide the innovative, personalized education that they so greatly value.”

The lead opinion does acknowledge that at least two of the appellants’ future-looking concerns could be addressed with as-applied challenges — meaning that a future plaintiff could argue the act is operating unconstitutionally in a particular circumstance, but not that the act itself is unconstitutional.

Those two circumstances are: If charter schools were to eat up all OPA funding and the legislature were to then use general funds for them or other OPA-fund recipients; or, if the commission were to interfere with the superintendent’s supervisory authority (a concern Justice Wiggins raised in his dissent).

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