Politics & Policy

The War on School Choice Comes to Washington State

(Robert Kneschke/Dreamstime)

Although it’s been a quarter-century since Wisconsin adopted the nation’s first school-voucher program in 1990, the legal war against school choice continues unabated. Just this summer, Douglas County, Co.’s locally designed, locally funded scholarship program was ruled illegal by the Colorado supreme court, and the ACLU filed suit to strike down Nevada’s innovative Education Savings Account program. Now comes an especially gutless move by the Washington State supreme court, which chose the Friday afternoon before Labor Day to declare the state’s charter-school law unconstitutional — finally rendering judgment on a case it heard a year ago.

The 6–3 opinion turned on the Washington high court’s bizarre ruling that charter schools do not qualify as “common” schools, handing a victory to plaintiffs, including the Washington Education Association and the League of Women Voters. The court waited nearly a year — until shortly after schools had opened and the school year was underway — to tell more than 1,000 families at nine charter schools that their schools are no longer legal. 

In finding charter schools unconstitutional, the Washington supreme court has broken with the courts in California, Colorado, Michigan, New Jersey, Ohio, and Utah — all of which had rejected similar constitutional-based attacks on charter-school laws. Indeed, after 25 years of charter school laws, and with 7,000 charter schools in more than 40 states, charter schooling is has been deemed legal in every state where the question has arisen.

RELATED: School Choice Reaches a Tipping Point

The Washington high-court majority claimed that it had no choice, that its hand was forced by Article IX, section 2 of the state’s constitution because charter schools are “not common schools.” So, let’s take a look at this supposedly restrictive definition of “common schools” that forced the court’s hand. In fact, Article IX, section 2 provides:

The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.

It turns out that the language is rather accommodating. In order to reach the astonishing determination that it somehow prohibits charter schooling, the Washington court reached back to a 1909 case, School District No. 20 v. Bryan, and quoted:

[“Common schools” are] common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.

#share#There are multiple problems with this as a justification for outlawing charter schools. For one thing, district-based school boards are not the only way for citizens and voters to exercise control of their schools; the court simply dismissed the relevance of the democratic control exercised through parental choice and charter-school boards. Second, there’s substantial evidence that district governance does less to empower qualified voters than the school-district employees who dominate school-board elections. That’s no reason for courts to question the value of such elections, but it certainly argues against throwing out a constitutionally adopted charter-school statute as a threat to some romanticized notion of electoral control. Third, the notion that Washington State’s school districts are sacrosanct because they allow the public to carefully select teachers and discharge incompetent ones reads like a twisted joke. Ultimately, the court’s rationale serves as an open-ended, extra-constitutional rejection of all challenges to the education monopoly.

Ultimately, the court’s rationale serves as an open-ended, extra-constitutional rejection of all challenges to the education monopoly.

The lunacy of the decision suggests that a bit of a refresher on charter schooling may be in order. After all, charter schools are, by definition, public schools. They are creations of the state, authorized by state-approved entities, subject to state regulation, and funded with state funds. In legal terms, the only real difference between public charter schools and traditional district schools is that district schools are created and overseen by a state-recognized local monopoly, while charter schools are created and overseen by a state-recognized authorizer. Charter schools must abide by the same rules governing religion in public schools, cannot select their students, cannot charge tuition, and must provide mandated services.

#related#In practical terms, none of the key distinctions between district schools and charter schools make charters obviously less “common.” States can choose to free charter schools from some regulations (of course, they can do the same for all public schools — except that efforts to do so are typically politicked to death). Charter schools have performance agreements, meaning they get shuttered if they fail to perform acceptably. They are funded based on the number of students who enroll; if families don’t choose a school, it doesn’t get funded.

In short, charter schools are very much public schools — except with some added autonomy and accountability. All nine of Washington’s charter schools opened as planned this morning, while their allies pursue all available remedies. We’ll see if Washington State’s myopic mandarins really have the nerve to ask law enforcement to shut down these “speakeasy” schools in order to stop the state’s charter-school students from illegally pursuing a public education.

Frederick M. Hess is the director of education-policy studies at the American Enterprise Institute.

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