By a 6-3 margin, the Washington Supreme Court held earlier this month that state funds designated for “common schools” may not be used to support charter schools. League of Women Voters v. State of Washington.

In 2012, Washington voters approved an act that provided for the establishment of up to 40 charter schools. The act stated that the new charter schools are public “common school[s] open to all children free of charge.” Under the act, charter schools must provide a “basic education,” similar to that provided by traditional public schools, including instruction in the essential academic learning requirements developed by the superintendent of public instruction.

Charter schools, however, are freed from many “burdensome regulations that limit other public schools,” thereby giving charter schools “the flexibility to innovate” regarding staffing and curriculum. RCW 28A.710.005(l)(g).  The Act further provided that charter schools are to be funded on the same basis as common schools.

Article IX,§§ 1-3 of the Washington Constitution directs the legislature to establish and fund “common schools,” and restricts the legislature’s power to divert funds committed to common schools for other purposes even if related to education. The key issue in the case, therefore, was whether charter schools qualify as “common schools” that are eligible for state funding under this provision.  The Court held that they were not. Relying on a prior precedent from 1909, the Court held that:

[A] common school, within the meaning of our constitution, is one that is 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.

Here, the Court reasoned, because charter schools are run by an appointed board or nonprofit organization and thus are not subject to local voter control, they cannot qualify as “common schools” within the meaning of article IX.  Accordingly, it held that the common school funding provisions of the act are null and void; it further declared that because the common school funding scheme is integral to the legislative scheme, the entire charter school act is unconstitutional and void.

The nine charter schools in the State of Washington have vowed that they will stay open at least for the current school year by raising the estimated $14 million they need via private donations. The State Charter School Association also reportedly is considering asking the Supreme Court to re-consider its decision or seeking to obtain legislative support to amend the constitution.