Summary: A lawsuit challenging Washington’s new charter school law on constitutional grounds may be embarrassingly in the end a defense of a dysfunctional status quo.

I believe in teachers. Not the Type A’s that reformers would like to attract from their intent upon law or medicine or programming, though those too would be welcome, but the many teachers I have encountered and worked with over the years I have spent in schools. The strong majority I know have a sense of mission, enjoy kids, and will go the extra mile the profession requires. Good people who take their work seriously, though in various ways I see as hunkered down against criticism of the profession, hierarchical directives to which they have little or no input, and the increasing requirement to do more things and faster. And along the way heal the culture via the children the society bequeaths them. An emotional fortress only those inside understand.

So it is with a mixture of dismay and puzzlement that I read that the state teachers’ union, the Washington Education Association (WEA), that represents my friends, as well as the Washington Association of School  Administrators, has opposed the introduction of charter schools into the state of Washington, first fighting last fall the initiative that ultimately authorized charters, and now filing suit alleging the new enabling statute violates the Washington State constitution. (The League of Women Voters and El Centro de la Raza, an organization in the Latino community, have also joined in the suit.)

I am not a lawyer; I cannot comment on the legal merits of the case in the manner of one so trained. But experience and common sense can often comment usefully on the fabric of the law.

I do not contend that charters are the only and irrefutable answer to all school ills. The original Stanford CREDO study in 2009 put that to rest; in the original study only 19% of charters nationwide outperformed their local comparison public schools.

However, in its most recent (2013) update CREDO reports the “performance trend” nationally for charters has improved modestly in the interval since, including among at risk groups of students, one primary target of the Washington State charter law. In fact, in reading skills charters advanced learning for their students marginally better than over half of the traditional public schools the charter students would have otherwise attended. In math, charters outperformed their traditional public school counterparts a smaller percentage of the time, but still to a degree improved over 2009. Progress.

It is a no-brainer that there are lessons from these hard fought gains that we can ill afford to ignore; in the relative failures there may also be worthy instruction. Charters are laboratories that can propose solutions and successfully promote the growth of diverse settings for diverse learners, if monitored properly in the name of public interest and subject to the same elusive measurements with which we saddle regular public schools.

My puzzlement lies with the all-out manner in which the WEA seems to be waging war in a context that exudes complexity and ample grey, and therefore calls out for a more reasoned deliberative. I have not detected much nuance in the public resistance; almost, it seems a battle for existence. It may be that all of the constitutional concerns of the WEA have merit; what gives me pause is that I have encountered little in what media I read in which union or administrative representatives rebut from an educational perspective the contention that benefits can flow from charter activity. They just agin it.

A benefit of the market place of ideas in a free society is that better mouse traps get designed where the opportunity to do so flourishes. The argument applies also to the relatively cautious opportunities made possible by the Washington State charter law.

Moreover, the WEA parent body, the National Education Association, according to its website, does recognize the validity of charter schools under specified conditions. From their website: “ NEA believes that charter schools and other nontraditional public school options have the potential to facilitate education reforms and develop new and creative teaching methods that can be replicated in traditional public schools for the benefit of all children.”

By contrast, what it might be that has constellated such resistance from the WEA? Do we accept the suit solely at face value – namely, the WEA simply argues the charter law is unconstitutional? In my view the context of the WEA’s action suggests deeper currents in these waters.  

The charter movement, funded heavily from outside the educational establishment most notably by Bill Gates, but by others as well, is an indictment of school patterns as they exist, and expresses a frustration on the part of the employer community with the glacial pace of progress in school reform. As such, the charter concept challenges the entrenched power of both the Washington Education Association and the principals’ organization, the Washington Association of School Administrators, which as noted earlier has joined the WEA in the lawsuit.

Could the lawsuit challenging the charter law be a classic case of those under fire responding with trench warfare? We have an environment in the state of Washington in which business and tech types clamor for higher quality graduates out of our schools and, frustrated when their efforts to push reform stall, blame teachers and principals for the perceived failure of the schools, which in turn helps to draw the battle lines.

Never mind that the seemingly implacable complex of forces surrounding school reform leave the many ardent teachers and principals as nonplussed as the business types who need higher quality graduates; the battle degenerates into an irrational power-fest. The atmosphere of blame short circuits attempts to deliberate together, though both sides desire a better outcome. In the discontinuity, the battle for power becomes bald. Who controls?

Some of the attendant dynamics are as old as the hills, and are buried within them. The current bureaucracy provides jobs and a kind of security. Rock the boat, and it will not be clear who the winners will be.

In this distrustful and combative atmosphere, the stakeholders outside the school hierarchy go to the public in the form of initiative and fire a legal salvo. The union and the administrators’ association see the initiative as an attack on their prerogatives, and respond with their own legal maneuver. We see some of the same dynamic in the national Congress.

The State Supreme Court has ordered the state to make good on the constitutional requirement to “fully fund” public education; the state legislature has made some initial moves toward compliance. The WEA claims on its PAC website that ” The Charter School Act interferes with the state’s progress toward compliance by diverting already insufficient resources away from public school districts.”

The truth is that perhaps 80% of the cost of schools goes toward staff pay and benefits. Staffing is determined in specific schools by student enrollment, and funding to school districts flows based on student enrollment. Even if charter schools were not considered to be “public” schools (and even that contention is questionable in my mind – the charter law specifically refers to the charters as “public” schools), the net effect of charter schools would be to shrink the strictly public school sector, in which the “full funding” target would also be reduced.

The net effect on funding per pupil may be felt, but more at the margin. For example, if a building has fewer pupils in it, it still must be heated as a full entity. Technically, charters may “interfere” with full funding in this fashion, but in a much more subtle fashion than the WEA claims; such an impact must be weighed against the potential benefits of charter schools.

The parent NEA website, by contrast, provides a guideline: “Charter school funding should not disproportionately divert resources from traditional public schools.” (See link cited above.) The WEA undercuts the legitimacy of its claim by making too broad a statement, which weakens their lawsuit, in my view.

Next up, according to the WEA, the Charter School Act “unconstitutionally diverts funding that is restricted to use for public common schools to private charter schools that are not subject to local voter control.” Again, seems to me fudging the truth here. Charter schools can be subject to local control if the local school board applies to the State Charter Commission to become an authorizer, which to date only Spokane SD has done. It is true a potential charter operator can apply directly to the State Commission, whose members are appointed by high level government elected officials, including the governor. Not local, but subject to elective control. The lapse in more local control would seem to occur by decision or lack thereof at the local level.

Moreover, the use of the word “private” is a red herring. It implies for profit private corporations, which are explicitly prohibited from operating charters in the state of Washington. A cursory reading of Section 208 of the empowering law confirms that the schools are to be non-profit and considered public.

Some items that buttress the filing of the lawsuit are primarily of a legal, constitutional nature that may or may not have salience. However, taken together, one might expect if the constitutional issues were in fact the real issues for the teachers’ union and the administrators’ association, then both entities might have been expected to work with other parties to address their concerns in the context of preparing the initiative to go before the voters. Or, if the union saw merit in charter schools as a concept, then it might have proposed some option that met their constitutional objections.

That they appear not to have done so to this close reader of the daily news suggests both union and admin bodies simply are opposed to the concept, and ride alleged constitutional coattails to gain what they have lost in the political arena. If this inference is correct, then in my mind neither the teachers’ union, whose existence I believe necessary, nor the administrators’ association, which represents many people I respect, demonstrate the necessary chops to be considered advocates for school reform on this issue.

We are left to wonder to what extent each entity expresses the will of its membership. I’d like to think not.

One more question in this series of questions about the charter law suit. According to the WEA/PAC website, the Charter School Act “violates the ‘general and uniform’ requirement in the constitution because charter schools are not subject to most of the laws and regulations applicable to public school districts, including many of the common school provisions defining the elements of a basic education.”

Of course, that’s the point! Though it would be incorrect to argue that all of “the elements of a basic education” as set forth in the regulations are obstructive of reform, the set of procedures and regulations that describe how schools are managed and the ingrained culture – the school bureaucracy — that has emerged from those rules constitute a major part of the problem. (See some of my recent previous posts on School Reform) Charter schools short circuit these dysfunctional structures by establishing a relatively tabla rasa legal oasis, an opportunity for a creative brew, where it is intended innovation can prosper.

Hopefully, the framers of Initiative 1142 have crafted the law to meet the alleged constitutional objection.

The intellectual basis of the suit may derive from an opinion published in 1997 in the University of Washington law journal during earlier bouts around charter schools. The author, L.K. Beale, finds after sober historical and definitional analysis that the charter proposals of the time in fact violated the constitution in many of the ways the current suit alleges. Of course, lawyers file briefs from the right, and lawyers file briefs from the left, all tightly argued, but argued by folks trained as advocates within the law, which leaves said briefs short of the full truth. L.K. Beale, presumably a student at the time because that is how the law journal system usually operates, is a player of unknown bias and unidentified potential client.

That said, the carefully researched article lends legal gravitas to the suit against the charter law. From my lay point of view, the eventually ruling by the court will revolve around how narrowly or inclusively the justices interpret the words “general and uniform,” which in their constitutional derivation are intended to guarantee that all students have access to a “general and uniform” education. Will charter schools be generally and uniformly similar enough to other “common schools” to pass constitutional muster?

The good news is that the terms have been scrutinized before when “common schools” have morphed into specific variants, such as high school. The bad news — if the court finds in favor of the plaintiff, it is difficult to see how the pertinent constitutional issues might be addressed in any new charter initiative without weakening it to the point of irrelevance.

It is not a long metaphorical jump from the invocation of long standing school laws and regulations (as does the union/admin suit) to de facto entrenchment of powers and prerogatives which enshrine the position of both teachers and administrators in stable but significantly dysfunctional frameworks.

The lawsuit is most distressing in its lesson on the difficulty of change. One system among a network of systems cannot sustain change without adjustments elsewhere in the network; without simultaneous change in multiple interlocking systems, the inertia of the unreformed will return the rebel to its original stasis. In school terms, new ways of reaching at risk kids can be stymied by systems grown to the status quo.

Behold, the power of the status quo.