The origins of a surprisingly simple decision that could have major implications…
By Martha Carey
Something unusual happened in Washington state late last week. Charter schools came out on the losing end of a lawsuit. In fact, charter schools, as they are currently defined, funded and organized, were actually ruled unconstitutional by that state’s Supreme Court. And the basis of that decision was surprisingly simple. The charter school law that narrowly passed Washington in 2012 was found to be in violation of the state’s constitution precisely because charter schools have private boards.
Uncommon Schools ≠ common schools
The constitution in that state clearly defines public schools as schools that operate via taxpayer funds, and which are *under the control of the qualified voters of the school district.*The Supreme Court just ruled that *because charter schools [under the new charter law] are run by an appointed board of nonprofit organization and thus are not subject to local voter control, they cannot qualify* as public schools as defined in Washington’s constitution. Which means funding them violates the law – as noted in the ruling: *money that is dedicated to common schools is unconstitutionally diverted to charter schools.*
What happens next will be pretty fascinating. Several charter organizations and charter operators are calling for a special session of the state legislature to *fix* this pesky problem. Others, including the Washington State Education Association, are expressing vindication and are urging legislators to address the poor state of public school funding once and for all.
Each state’s charter school laws are distinct, and some are far vaguer than others. In Pennsylvania, where I live, the charter school law put into effect in 1997 allows for charter schools to be run as entirely independent entities within a school district, and allows for those charter schools to receive public funds from the state in order to operate.
The Pennsylvania model of loose policy regulation of charter schools and essentially no oversight by the electorate is in alignment with the language of the earliest charter school law, passed in Minnesota in 1991. The premise there was that public school districts were restricting choice by their stranglehold on schools-as-franchises in the education *market.* And the 1991 law promoted the notion that groups of parents, businesses, cultural organizations, etc. could get together and start schools that would give parents and students more education options, and the state and local districts would, correspondingly, divest themselves of the core responsibilities (and rules and regulations) for these schools, essentially allowing the *franchise* to organize and govern itself.
I first worked with several charters schools in St. Paul in 1996; in the five years between the charter school law passing and then, not only did a cluster of pretty random, curricular-specific charters (arts, music, science) spring up around the Twin Cities, but several quickly developed negative public reputations, mostly due to poor fiscal management.
Each state’s approach to charter laws is distinct, but this case seems to make a clear and compelling case about an idea that should be unifying: taxes to fund schools come from taxpayers who elect representatives at the state, local, and district levels who are our proxies in providing oversight and regulation over where those funds go.
A unifying idea
The case in Washington should give both charter proponents and legislators pause, and hopefully will add fuel to cases now working their way up the legal pipeline. Each state’s approach to charter laws is distinct, but this case seems to make a clear and compelling case about an idea that should be unifying: taxes to fund schools come from taxpayers who elect representatives at the state, local, and district levels who are our proxies in providing oversight and regulation over where those funds go. If the population of taxpayers is not content with that process, they can change the legislators, the funding structure, the tax structure, or all of the above, and this will directly and immediately impact schools.
But charter schools are actually exempt from this most democratic of processes, which is amazing when one considers that education is actually a property right (meaning students are both required to have an education and also cannot be denied an education without due process).
In most states, charters can put anyone they want to on their boards, can raise funds from anyone they want to, can be housed wherever they want to, can reject students whenever they want to, and can even opt out of giving accurate reporting on the most basic of items – including how many students they actually have – should they choose to. And the taxpayers whose money is being funneled to these charters do not have a say, an option, or a choice once these independently operated entities get up and running. The only hope is that there is some appointed or elected body that periodically reviews and, if they are found to be engaging in fraud, closes down charter schools. And then the students in those schools, of course, re-enter what remains of the public school system.
But what the case in Washington underscores most is the elemental choice made by charter proponents all those years ago, as they crafted the Minnesota legislation, variations of which are now on the books in 42 states.
And an elemental choice
But what the case in Washington underscores most is the elemental choice made by charter proponents all those years ago, as they crafted the Minnesota legislation, variations of which are now on the books in 42 states. The choice was: do we work together as a community to best provide the state-mandated education of all our citizens and do so in a way that continues to be overseen by the electorate, which may mean re-allocating resources and (gasp) raising taxes, or do we just let private groups of folks do their own thing, using our taxes, in the name of education?
Martha Hope Carey lives in the Philadelphia area and recently completed her PhD in Urban Education at Temple University. Her dissertation research on urban charter teachers can be found at careythinking.org. Contact Martha at firstname.lastname@example.org.