Court’s charter ruling looks even worse under scrutiny

Was the recent state Supreme Court ruling against charter schools dictated by the Washington Constitution? Read Philip Talmadge’s analysis here: The answer is no.

Talmadge served on the court from 1995 to 2001; he was widely regarded as one of its best minds. Before that, he spent 16 years in the state Senate as a Democrat representing a liberal Seattle constituency. He’s anything but a far-right radical out to dismantle public education.

Charter schools tend not to be unionized, and teachers unions in other states have tried to persuade supreme courts to kill them. The courts have rejected the union arguments in every case.

Some defenders of the Washington Supreme Court’s Sept. 4 decision say that our state’s constitution is uniquely tough on programs that aren’t “common schools” governed by local school boards. As Talmadge points out, that’s simply not the case. A plain reading of the constitution leaves plenty of room for the funding of secular K-12 education that is subject to state oversight but not under the direct control of a school board.

State Attorney General Bob Ferguson notes that Running Start and the state’s regional vocational skills centers also operate outside the court’s apparent new parameters. Ferguson – another Democrat – has rightly asked the court to reconsider the decision.

The six justices who signed the opinion reached back to 1909 to find a decision that works against charter schools. To do so, they leaped over more recent precedents that worked for charter schools Let’s consider their choice of the 1909 ruling, “School District 20 v. Bryan,” from the standpoint of common sense.

For the 1909 court (and the 2015 majority) the definition of “common schools” was about who calls the shots at the school house. It had to be voters, exclusively: “The complete control of the schools is a most important feature, for it carries with it the right of the voter, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.”

Yet those very words show what a relic Bryan is. Voters don’t have complete control of their public schools; they haven’t had it for many decades, and for good reason.

Federal and state regulations, and regulators, dictate much of what happens in a school district. They forbid racial discrimination, for example.

Teachers unions – private, nonprofit corporations – exercise immense control. Washington has just witnessed the Seattle Education Association shut down the state’s largest school district for a week in defiance of Seattle’s elected school board. In education, there is no greater political power than the power to shut the school doors and force thousands of frantic parents to find other places for their children.

The teachers unions were organized in part to prevent “complete control” by local voters. Under the system approved by the 1909 court, teachers could be fired arbitrarily by the almighty local citizens or forced to work under demeaning conditions.

If that doesn’t often happen now, it’s precisely because voters have been stripped of complete control. Using the 1909 logic, though, you could argue that public schools have ceased to exist in Washington.

That notion is ridiculous, of course. But it’s only ridiculous because “School District 20 v. Bryan” is a 106-year-old anachronism that has little to do with 21st century education.

The court should have let the 1909 ruling rest in peace. As Talmadge argues, it should have gone directly to the Washington Constitution, which gets the issue right.

This story was originally published September 17, 2015 at 10:03 AM with the headline "Court’s charter ruling looks even worse under scrutiny."