Washington charter school law unconstitutional, Supreme Court finds

Roquesia Williams with her children, Gesiah, 6, l-r, Gehariii, 11, Genai, 14, and Gervais, 4, at SOAR Academy in Tacoma on Tuesday, July 14, 2015. Williams is a triple pioneer, she will have a child at each of Tacoma's three new charter schools opening this year.
Roquesia Williams with her children, Gesiah, 6, l-r, Gehariii, 11, Genai, 14, and Gervais, 4, at SOAR Academy in Tacoma on Tuesday, July 14, 2015. Williams is a triple pioneer, she will have a child at each of Tacoma's three new charter schools opening this year. Staff photographer

The Washington Supreme Court has ruled the state’s voter-approved charter-school law unconstitutional.

The decision casts a shadow over Tacoma’s first three charter schools that opened in August, leaving their funding in jeopardy.

In a 6-3 ruling issued late Friday afternoon, the high court said that the privately operated, publicly funded charter schools do not qualify as common schools under Washington’s Constitution and thus cannot receive public funding.

The decision, which came nearly a year after oral arguments in the case and just after eight new charter schools opened, did not specify what will happen to the schools or the students who attend them. Instead, the justices sent the case back to King County Superior Court “for an appropriate order.”

The high court’s opinion takes effect in 20 days, barring any reconsideration by the court. That could give the charter schools – and the public schools that might have to accommodate their students – a little breathing room.

A spokeswoman for the Washington State Charter Schools Association said that its legal experts were reviewing the decision. But the association said staff and students are planning to report to school as scheduled Tuesday morning.

In the lead opinion, Chief Justice Barbara Madsen said the case wasn’t about the merits of charter schools, simply whether they were eligible for public funds. Citing state Supreme Court precedent from 1909, she said they are not eligible because they are not under the control of local voters. Washington charters are run by private nonprofit organizations that appoint their own boards. Most, including Tacoma’s charters, are also under the oversight of the appointed Washington State Charter School Commission.

A coalition of groups — including the state teachers union, a group of Washington school administrators and the League of Women Voters — sued the state in 2013 to stop the new charter system, adopted by voters in 2012. That ballot initiative made Washington the 42nd state to approve charters.

Last year, Washington state had one charter school. This year, there are nine — in Tacoma, Spokane, Kent, Highline and Seattle — with nearly 1,200 pupils enrolled.

Three of the schools that opened this year are in Tacoma. They are the SOAR Academy for students in kindergarten through eighth grade, located on the Hilltop; Destiny Charter Middle School, located in the Dome Top neighborhood; and Summit Olympus High School, near the Tacoma Dome. The three Tacoma schools opened in mid-August with a total enrollment of around 400 students.

Thelma Jackson, who chairs the board of SOAR Academy in Tacoma, said late Friday afternoon that officials from charter schools across the state were planning a conference call to discuss the court ruling and its effects. She was critical of the court for releasing its decision late on a Friday before a holiday weekend, causing charter officials to scramble.

Jackson said SOAR had not yet received its per-pupil apportionment of state funds, but was expecting to get it later this month. She said SOAR was able to open last month with grant and other non-state funding.

Joshua Halsey, executive director of the state charter commission, was also displeased with the court’s timing.

“The court had this case in front of them since last October, and waiting until students were attending public charter schools to issue their ruling is unconscionable,” Halsey said in a news release. “We are most concerned about the almost 1,000 students and families attending charter schools and making sure they understand what this ruling means regarding their public school educational options. We are consulting with legal counsel regarding the options available.”

In the ruling, Madsen said there was no reason to overturn the 1909 precedent, and she further rebuffed an argument from the state that charter schools could be financed from the general fund rather than from money intended for public schools. She was joined in the ruling by Justices Charles Johnson, Charles Wiggins, Mary Yu, Debra Stevens and Susan Owens.

In a separate opinion, three justices agreed with the majority that charter schools are not common schools, but argued that the voter-approved charter school law was still valid.

“Nowhere does the Act identify a source of funding; it merely states that charter schools must ‘receive funding based on student enrollment just like existing public schools,’” wrote Justice Mary Fairhurst.

A spokesman for Gov. Jay Inslee said Friday the governor’s office was reviewing the ruling and would consult with Attorney General Bob Ferguson for further guidance.

A Tacoma Public Schools spokesman said Friday’s Supreme Court decision was a “stunning turn of events.” But he said the school district stands ready to take in students that may be displaced if the local charter schools ultimately close their doors.

“We do have enough space throughout the district that we could accommodate the additional students,” said spokesman Dan Voelpel.

Tacoma Public Schools open Wednesday.

He said the district doesn’t have firm numbers on how many students it might need to absorb, but a preliminary analysis suggests that roughly 125 students in Tacoma school boundaries were enrolled in the three charter schools.

“We are trying to sift through the implications of the ruling,” Voelpel said. “We really feel for the families and the children who are signed up at the charter schools.”

Tacoma School Board members have previously voiced concerns about the state approving too many charter schools in Tacoma, draining students and funds from the district. And they opposed the initiative when it was submitted to voters in 2012.

But Voelpel emphasized Friday that the School District was not a party to the lawsuit, nor did the School Board take a position on the litigation.

News Tribune staff writers Debbie Cafazzo and Matt Misterek contributed to this report.