To the surprise of many, Friday afternoon the state Supreme Court found charter schools to be unconstitutional. Voters approved them with Initiative 1240 in 2012, and Washington’s first public charter school opened last year. Eight additional public charters opened this fall.

In 2013, the League of Women Voters of Washington, the Washington Education Association and others sued; a Superior Court judge ruled that charter schools are not “common schools” and thus could not access certain funds, but the judge upheld the charter schools law.

The Supreme Court heard the case on Oct. 28, 2014. Six justices signed Friday’s majority opinion. It finds that charter schools are not common schools because they are governed by an un-elected board; thus, the Charter School Act violates the state constitution. Also, the majority writes, “Under the Act, money that is dedicated to common schools is unconstitutionally diverted to charter schools.”

The three other justices concur in part and dissent in part (beginning on page 22 of the file). They agree with the majority that charters are not common schools, but “because nothing in the Act expressly requires the use of restricted funds, the Act is facially valid.” Further, charters “may be constitutionally funded with unrestricted monies from the general fund.”

Some interesting points from the opinion and dissent:

• The majority says its opinion is “largely determined” by a 1909 decision, which said that

a common school . . . is one that is . . . 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.

(To many modern readers, this may seem more descriptive of charter schools than traditional schools.)

• In a footnote on page 13, the majority recognizes that the 2015-17 operating budget included a provision specifying that

State general fund appropriations distributed through Part V of this act for the operation and administration of charter schools as provided in chapter 28A.710 RCW shall not include state common school levy revenues collected under RCW 84.52.065.

But, because this provision is effective from June 30, 2015, it “does not alter our analysis or conclusion concerning the effect of the Act as previously passed by the voters in 2012 and codified in 2013.” On the other hand, the dissent argues:

Because nothing prohibits the legislature from expressly appropriating funds to support charter schools separate and apart from the appropriation for public education in the next biennium, appellants’ facial challenge must fail.

At any rate, the dissent notes,

only 28 percent of the revenue appropriated for public education from the general fund is restricted. Because charter schools account for merely 2 percent of Washington’s public schools, they can certainly be funded through the remaining 72 percent of the appropriation from the general fund.

• In Yelle, a 1939 case, the majority writes that the Court said, ‘”[O]nce appropriated to the support of the common schools,” funds cannot “subsequently be diverted to other purposes.”‘ The dissent notes that this is the first time any court has cited Yelle, because the educational funding system has “materially changed” since then.

• Because the state does not segregate “constitutionally restricted moneys from other state funds,” the majority finds “unconvincing the State’s view that charter schools may be constitutionally funded through the general fund.” To this, the dissent notes,

Not only does this directly contradict established case law . . . but taken to its full logical extent, it would mean that any expenditure from the general fund would be unconstitutional unless it was for the support of common schools. This cannot be the case.

• The majority also rejects the idea that money follows the student, saying “there can be no entitlement” to a portion of common school funds if a student is not attending a common school.

• The dissent notes that the Running Start program is not a “common school” because it is not under control of local voters, yet it is supported by appropriations for public education.

• The majority asserts: “In sum, without funding, charter schools are not viable. Nor can it be believed that voters would have approved the Charter School Act without its funding mechanism.” On the contrary, the dissent argues that “I-1240 would have passed even though charter schools may not receive restricted funds. I-1240 does not state that charter schools will receive restricted funds, and voters were never told anything to this effect.” Further, the dissent argues,

The majority believes that the voters would never have passed the Act without a funding source. . . But the voters did just that because the Act itself does not contain any reference to a source of funding. This is not an uncommon occurrence, as Washington voters have enacted unfunded initiatives in the past.

(Indeed: See, e.g., I-1351.)

Opportunity Washington has a good roundup on the decision, and writes, “the challenge for lawmakers now is how to reconcile the constitution with charter school law.” Some have called for a special legislative session.

Additionally, the Washington State Charter Schools Association has said that charters will remain open this year, thanks to donor funds. (The article notes that the cost of keeping the nine charters open this year is $14 million.)