An archaic ruling on Washington charter schools

A common school
A common school

Relying on a 19th century concept of public education and a legal precedent from the early 20th century, the Washington State Supreme Court on Friday struck down one of the country’s newest charter school laws.

The League of Women Voters v. State ruling clouds the futures of nearly 1,200 students in nine charter schools, and could cast doubt on other educational programs. But it also raises a question that should resonate beyond the Evergreen State: Can archaic legal concepts stymie a 21st-century education system?

The court’s 6-3 majority relied on three-step reasoning. First, Washington’s state constitution restricts some state funding to the support of “common schools” only. Second, charter schools are not common schools, a definition drawn from a 106-year-old legal precedent. Third, the state’s funding system risks giving charter schools some of the “common schools” money they’re barred from receiving, since the state hasn’t segregated the common school fund from the general fund since 1967.

When the Washington Supreme Court decided District No. 20 v. Bryan in 1909, the state was home to more than 2,800 public schools (132 of them in log cabins) spread across 2,710 school districts. At the time the court held common schools were “subject to and under the control of the qualified voters of the school district.” All nine justices agreed last week that charters authorized by the state — a concept voters approved in 2012 — were not common schools.

The idea of common schools traces to the 1830s, when Horace Mann envisioned a form of free primary schools that would be tasked with teaching students reading, writing and arithmetic.

The term appears in Article IX, Section 2 of Washington’s state constitution:

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.

Washington officials have long struggled to reconcile a modern public education system with a concept that may have been envisioned under the dim light of a whale-oil lamp. The Washington State Attorney’s General Office warned antiquated definitions of the “common school” did not include high schools (along with vocational education and teacher training colleges), as these schools were referred to as separate from the “common school” in Article IX, Section 2.

Several cases cited by the majority support the idea that other educational institutions can’t receive money reserved for common schools. A precedent from 1914 (District No. 3 v Preston) held common school funds could not be used to support teacher training colleges. Another, from 1939 (State Board for Vocational Education v. Yelle), found they could not pay for vocational education.

The remedy in those cases was to seek other funding sources. Even Bryan held “all experiments in education must be indulged, if at all, at the expense of the general fund.”

Here’s the rub. Public schools have since evolved, and school finance has evolved along with them. With the decline of the common school Washington merged its taxes for common schools into the general fund in 1967.

The majority held in last week’s ruling that because “there is no way to track the restricted common school funds or to ensure that these dollars are used exclusively to support common schools,” the charter school program must be struck down in its entirety.

The dissenting justices point out this logic could jeopardize educational programs like Running Start, which helps high school students earn dual college credits. The state attorney general’s office argued tribal compact schools would no longer qualify as common schools under the majority opinion. Liv Finne of the Washington Policy Center says public-private partnership schools like Raisbeck Aviation High, Delta High, and TAF Academy have a similar problem, however unlikely a legal challenge may be.

“Anything paid for by the general fund is now tainted by the common school fund,” said Ethan Blevins, a Fellow with the Pacific Legal Foundation, echoing a point made by the dissenting justices.

Washington may represent an extreme case, but it presents a conundrum at the heart of education policy disputes all over the country. Charter schools are hardly the only educational options have opponents leaping back to the era of the horse-drawn carriage to fight school models designed for the era of the driverless car.

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BY Patrick R. Gibbons

Patrick Gibbons is public affairs manager at Step Up for Students and a research fellow for the Friedman Foundation for Educational Choice. A former teacher, he lived in Las Vegas, Nev., for five years, where he worked as an education writer and researcher. He can be reached at (813) 498.1991 or emailed at Follow Patrick on Twitter: at @PatrickRGibbons and @redefinEDonline.

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