Yesterday afternoon the state Supreme Court released its final decision on charter schools. A majority of five justices decided to delete footnote 10 from the original opinion finding that charter schools are unconstitutional (see page 11). Other than that, the decision stands.

Footnote 10 says that "the absence of local control by voters would also violate the article IX uniformity requirement." (It goes on, but that's the gist.)

The attorney general had specifically asked the Court to eliminate footnote 10 in his motion for reconsideration. Following yesterday's order, he said that "by removing footnote 10, the court eliminated a significant threat to programs like Running Start, tribal compact schools, and vocational education."

That may be so, but there were other concerns raised by the AG, the four former AGs, and legislators related to the Court's reasoning about funding. For example, the AG had asked the Court to remove language that equates basic education appropriations with restricted common schools funding. He wrote, "Such a ruling casts doubt on the funding mechanisms for a wide range of public, non-common school programs." Similarly, the former AGs wrote, based on the Court's reasoning, "Once the general fund has been contaminated by commingling the general fund with common school funds, a good argument can be made that no expenditures from the general fund may be made except for the common schools."

The three justices who had dissented from the original opinion also dissented from this order. They wrote that they "would grant full reconsideration, and we agree with the deletion of footnote 10 . . . ."

Justice Mary Yu, who was part of the majority on the original opinion, also dissented from this order. She wrote that she would

. . . grant reconsideration solely on the question of charter school funding and the use of unrestricted funds for such schools. This court unanimously held that charter schools are not common schools under our constitution and I believe that is the correct decision under our laws. However, the State and various amici have raised legitimate questions regarding the use of unrestricted funds and the power of the legislature to act.

The AG noted yesterday that "it is now up to the Legislature to decide whether to adopt a different mechanism to fund charter schools.” The AP reports:

Senate Republicans' budget writer, Sen. Andy Hill, said charter schools will be one of the biggest issues lawmakers deal with next session.

"We need to fix that glitch," he said. "There are ways you can specify where funds for charter schools come from."

Hill said the Supreme Court didn't "say charter schools are good or bad, they said the way you're paying for them is unconstitutional."