Summary: In a major blow to the belated arrival of charter schools in Washington State, the Washington Supreme Court has ruled that charter schools in the state cannot receive public funds dedicated to “common schools” because they are not governed by locally elected boards.

To the chagrin of Washington State advocates of charter schools, the Supreme Court of Washington State has ruled unconstitutional the portion of the charter enabling initiative passed in 2012 that would dedicate state education monies to charter schools.

The deal is pretty straightforward. Though charter schools themselves were deemed legal by the Court, the use of public funds designated for “common schools” is not.
The decision pivoted on the definition of “common schools,” as established in the 1909 Bryan finding by the same Court, which the court invoked. In response to litigation at the time, “common schools” eligible for public funding under the state constitution were defined as those “subject to and under the control of the qualified voters of the school district.” In other words, local control of local schools was and is paramount.

The echo we hear is of “no taxation without representation.”

As contrast, by the terms of the charter initiative, the boards in a supervisory capacity for charter schools are to be appointed by the charter operator, and are NOT elective office holders beholden to the will of the electorate. Therefore, because of this lack of accountability to the local taxpayers, charter schools do not qualify as common schools eligible for funding under the terms of the state constitution; they are left without the public monies that they need to operate.

All of which has left Washington’s nascent charters in a state of upheaval and uncertainty. The state association of charters has vowed to raise the money to keep the charters open, but faces an uphill battle.

Accountability to the voting and taxpaying public is the fulcrum. Lines of authority to individual charters extend from the State Board of Education and the State Charter School Commission, both of which are appointed by the Governor, who of course is elected, but that line of accountability is too diffuse to satisfy the local accountability rule. Looked at through the lens of local control, the court decision makes sense to me, though I generally support charters. For a local charter to appoint its own board members – well, that may well be a bit too much of the fox guarding the hen house; the board’s interest may be divided between the welfare of students and loyalty to the initiators of the school that appointed them.

Though most charters so far authorized in Washington State are independent of local school boards, two in Spokane has been authorized under the authority of the Spokane School Board, though also have their own individual separate boards. Players in Spokane argue the Supreme Court overlooked their unique circumstances, and that in fact Spokane charters meet the court’s requirement for a locally elected school board.

Spokane’s contention may yet lead charters out of the fiscal wilderness, but it will take time for whatever strategy they embark on to cycle through the court. Perhaps the court will agree and let funding flow. Or, perhaps more likely, the political and legal landscape will evolve to require local school boards to authorize and supervise charters directly, as they do any of their schools, without the intermediary of an appointed board. That would seem to meet the court’s criteria.

Some legislative action would be needed to rescind the charter requirement of an appointed board; such a work around appears more likely than a change to the state constitution, which may be a walk too far.

It is not clear to me how these governance issues play out in other states long invested in charters; perhaps some comparative study would give perspective to the Washington State dilemma.

To bring locally elected school boards into direct authority over charters could play some havoc with the ethos of charters, which in their conception are intended to sidestep the regulation and bureaucracy that often stifle innovation. Clearly, wise school board members might protect that ethic while enforcing business as usual in regular schools. Moreover, said wise school board members might then be in a position to champion successful charter implementation in regular classrooms.

The impulse to blow up schools as they are, particularly where they are viewed as inhibiting the academic growth of low income kids and in particular black and Latino kids, is understandable if overly impulsive, and has fueled the charter movement. Sometimes it is necessary to step outside, and gather new perspective, which is the great strength of the charter movement and is its most persuasive emblem. It is not clear that duly elected school board members, imbued with traditional ways, can insulate and energize that ethic. But we in Washington may have no choice.

There are clearly charters elsewhere in the nation whose creativity of instruction, curriculum, technology, and structure has generated much food for thought, and has kept the experimental spirit alive. This is not to say that the Promised Land has been discovered and awaiting replication. Far from it. The latest Stanford CREDO study (2013), likely the most comprehensive on-going analysis of charter schools, in complex findings conclude that there has been “slow but steady” improvement in charter performance since the study’s inception in 2009. Often criticized for “cherry picking” only those students compliant to their efforts, and excluding too many difficult to reach low income, black and Latino kids, charters have made progress toward serving a higher percentage of such kids than in earlier measures by the Stanford folks. The ecology of the charter scene has shifted modestly with the closure of low performing charters, which had been the intention from the get go, but which has proceeded sluggishly due to the loyalty of families and the tenacity of adherents. The findings of the CREDO researchers should not be disregarded lightly, if they do not exactly promise rapture.

Moreover, it is difficult to hear anecdotal evidence of specific effective charter inroads into academic insufficiency without concluding that the trial into charters yet may have more broadly productive periods, and we would miss critical opportunities to learn by jettisoning the experiment too hastily. For example, journalist Dale Russakov in her new book, The Prize: Who’s in Charge of America’s Schools?, tells of a KIPP charter in New Jersey that has raised test scores in part by concentrating social workers beyond accustomed ratios in order to mitigate the various psychological and home life difficulties that inhibit the academic progress of kids in poverty. Other charters have demonstrated that the increase of the adult/student ratio in a school has had the same beneficial effect, but often via the infusion of foundation monies.

Such relative outliers beg the question – why are not more such innovations pursued in regular public schools? The answer may come down to schools’ flexibility, the taxpayers’ willingness to tax themselves, and ultimately to the public’s faith that schools will use the money well. Meanwhile, the role of charters is to show there is a better way.