Two more requests that the state Supreme Court reconsider its September decision that charter schools are unconstitutional have been made. (The attorney general filed a motion to reconsider Sept. 24.)

One is from a bipartisan group of 10 legislators. According to the Olympian, they are Rep. Judy Clibborn (D-Mercer Island), Rep. Eric Pettigrew (D-Seattle), Rep. Larry Springer (D-Kirkland), Rep. Chad Magendanz (R-Issaquah), Rep. Norma Smith (R-Clinton), Sen. Steve Hobbs (D-Lake Stevens), Sen. Mark Mullet (D-Issaquah), Sen. Joe Fain (R-Auburn), Sen. John Braun (R-Centralia), and Sen. Steve Litzow (R-Mercer Island).

The focus of the legislators’ amicus memorandum is their belief that the Court “overlooks” the responsibility of the Legislature, under the constitution, to make appropriations and organize the public school system. “The Court’s majority opinion purports to tell the Legislature, a coordinate branch of state government, how to conduct its business.” Also: “This Court has historically deferred to the Legislature over matters of legislative procedure based on the Legislature’s coordinate constitutional role.”

But even so, the memorandum states,

As the dissent rightly points out, public charter schools do not operate with any of the constitutionally-restricted funding sources.

As further documentation that the Court’s dissent here was correct, the Court overlooked the fact that the Legislature itself determined that any support for public charter schools did not come from funds dedicated to common schools. The moneys supporting public education and common schools were not co-mingled.

(Citations omitted, emphasis in original.) Here the memo points to the provision in the 2015-17 operating budget that specified that charter school appropriations “shall not include state common school levy revenues.” The majority opinion had waved this provision away in a footnote, saying that because it 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.” But the memo argues that

In order to conclude that the initiative is facially unconstitutional, this Court must determine that public charter schools are invariably supported with dedicated common school revenue when the Legislature itself has determined that is not true in the 2015-17 biennial operating budget. As this Court knows, the enactment of an initiative generally does not result in the making of an appropriation; as here, that generally awaits a formal appropriation.

On the question of the Legislature’s role in organizing schools, the memo notes that the Court’s opinion that common schools are those that are governed by locally elected school boards “flies in the face of this Court’s own precedents and risks invasion of the authority of the Legislature” under the constitution.

Lastly, the memo notes that the legislators

are particularly concerned about the disparate impact of the Court’s decision on children from low income backgrounds and children of color. . . . Public charter schools disproportionately serve these children as compared to school districts generally.

The second reconsideration request came from the Washington State Charter Schools Association. This motion argues that because this is a facial constitutional challenge to the Charter Schools Act, “Plaintiffs must show that there exists no set of circumstances under which the Act could be constitutionally applied. The Opinion improperly relieved the Plaintiffs of this burden.” This “determined the outcome of this case and fundamentally alters the burden of proof in facial challenges to legislation in future cases.”

Also,

The Opinion appears to conflate “basic education” with “common schools.” Basic education is a group of educational programs and services that are guaranteed to every child. Common schools are one possible delivery mechanism for those programs and services. Common schools serve most children in the public school system, but the Legislature has always provided other public school options to provide “basic education” for some children.

These two reconsideration requests complement that of the attorney general. If the Court decides to change its ruling in this case, I wonder if it will do so based on the legislators’ arguments about the Legislature’s constitutional responsibilities. And if so, could that have any impacts on the McCleary case?