Friday, December 13, 2013

Washington's Charter Schools May Not Be "Common" But They ARE Public

Yesterday, the King County Superior Court issued a ruling on a challenge to the constitutionality of Washington’s State’s charter school law approved by voters last November. Contrary to early media reports that the law was found unconstitutional (setting off a Twitter frenzy), the judge actually upheld the entire charter law, with some minor exceptions.

The plaintiffs argued that the law should be stricken entirely because it violates the Constitution on several fronts: 1) charter schools cannot be considered part of the required “general and uniform” system of public schools, 2) they cannot be considered “common schools,” the system of schools and school districts established in 1854 by the Territorial Legislature, 3) charters constitute unlawful delegation of the state legislature’s duty and the state superintendent’s supervisory authority, 4) charter schools will impede the state’s ability to fully fund public education, and 5) charter schools amend the collective bargaining act (guess who brought the suit?).

Bottom line, the judge ruled that charter schools are public schools and the state can move forward with implementation. But because they can’t be considered “common schools,” charters won’t have access to state construction matching funds, which they probably weren’t going to get much funding from anyway.

For a case where plaintiffs asserted a number of serious constitutional arguments, this can be considered a victory for charter proponents. Charter schools are public schools in Washington State (as has been found in every other legal challenge across the country). They are under appropriate supervision from the legislature and State Superintendent of Public Instruction. And they do not impede state public funding efforts or collective bargaining laws.

In her decision, the judge weighed heavily the charter measure’s fairly elaborate accountability measures and oversight procedures. She said the law sets out those measures “with particularity.” The plaintiffs are likely to appeal the decision to the state supreme court.

What’s interesting to me is the court's argument that charter schools failed to make the cut as “common schools” because they are “not under the control of the voters in a school district. The statute places control under a private non-profit corporation, a local board, and/or the state charter commission.” Of course, this is sort of odd if you think about it. Charter schools, under this law, are established as local education agencies, the equivalent of a school district. Some will be authorized by public agencies with elected boards, others will be authorized by an appointed state agency. So the only factor here is whether the voters are directly involved. This goes right to the heart of many arguments against charter schools. We need democratically elected boards in charge of our schools, folks say.

But here’s the kicker. When the judge cites the relevant passage of law, the reason given for voter control of schools is not to protect our children from corporate interests, or to protect the rights of teachers, or to build a sense of community empowerment (the most common arguments for elected boards). It is so that teachers can be fired! The ruling refers to this reasoning from a previous case:

"The complete control of the schools is the most important feature, for it carries with it the right of the voters, through their chosen agents to select qualified teachers, with the power to discharge if they are incompetent."

If you think about what school districts in Washington State were all about back in 1909 when the "controlling" case was established, this makes some sense. The school board ran a school or three, hired teachers to run them, and assured families that something would be done if they made hiring mistakes. Today, elected boards typically do little that resembles this quality assurance role, and voters are so far removed from the question of managing teacher quality that the passage above is jolting in its focus on teacher competence.

Isn’t it time to re-examine our 19th century notions of school systems? We have elected boards that often do everything BUT manage teacher quality, yet we won’t send construction funds to charter schools that propose to do just that.

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