The state Supreme Court has held that Washington’s charter school system is constitutional, aside from one provision that is severable. (The charter school act was approved by voters as I-1240 in 2012, ruled unconstitutional by the Court in 2015, re-worked by the Legislature in 2016, and then challenged again.)

The lead opinion was written by Justice Yu, and Justices Stephens, Johnson, and McCloud concurred. It finds that the law doesn’t violate the constitution’s general and uniform system of public schools, doesn’t unconstitutionally delegate the supervisory role of the superintendent of public instruction, and doesn’t use restricted common school funds.

The lead opinion does find that the law’s collective bargaining provisions violated the constitution. The charter school act, according to the opinion, “significantly limits the bargaining right of charter school employees by restricting their bargaining units to individual charter schools.” The collective bargaining provision was added to RCW 41.56, which concerns collective bargaining by public employees. Despite the fact that there were no charter school employees prior to approval of I-1240 (as the dissent by Justice González notes), the lead opinion finds that this is a revision of existing law. Because the charter school law did not “set forth at full length” the law it was amending, it violates article II, section 37. However, the opinion also finds that this provision is severable, so “the remainder of the Act stands.”

Some notable points from the opinion:

• The lack of a locally elected school board does not make charter schools unconstitutional. Further, “It also makes sense that charter schools are not required to have locally elected school boards because of their funding source. Unlike common schools, charter schools receive no local levy money. Therefore, they do not raise the same concerns as common schools about local control over locally raised tax dollars.”
• Charter schools are funded from the opportunity pathways account (OPA), which also funds other education programs. According to the lead opinion, appellants argued that as charter schools grow, they will need more funding, so “the legislature will use the general fund to supplement funding for non-charter-school programs that currently rely on the OPA, though there is no authority for why the legislature is prohibited from doing so.” Additionally, “Appellants only speculate that the legislature will use an improper funding source if and when it exhausts the OPA, but this is better reserved for an as-applied challenge.”
• In holding that the law doesn’t interfere with the superintendent’s supervisory role, the lead opinion notes, “The phrase ‘except as otherwise provided’ appears to open the door to qualify or diminish the superintendent’s power, but any such amendment risks jeopardizing the Act’s constitutionality. Were the Commission to interfere with the superintendent’s supervisory authority, as feared by Justice Wiggins’ dissent, an as-applied challenge would be appropriate.”

Justice González, joined by Chief Justice Fairhurst, dissents from the lead opinion’s finding that the law violates article II, section 37. He would find the entire act constitutional.

Justice Madsen, joined by Justice Owens, dissents. She argues that the charter school act is entirely unconstitutional because the superintendent’s duties are usurped and the uniformity requirement is violated.

Justice Wiggins, also joined by Justice Owens, also dissents. He argues that the act is unconstitutional because “the constitutional responsibility of the superintendent of public instruction to supervise all matters pertaining to public schools has been largely reassigned to the state commission on charter schools.”

The Seattle Times and Opportunity Washington also report on the decision.

Finally, the lead opinion seems to take pains to clarify that justices don’t necessarily approve of the charter school act:

At the outset, we are aware of the deep-seated conflicting opinions regarding charter schools. While each side of the discussion may have legitimate points of view, it is not the province of this court to express favor or disfavor of the legislature’s policy decision to create charter schools. Rather, our limited role is to determine whether the enacted legislation complies with the requirements of our state constitution.

And again, a bit later: “While the appellants may disagree with the legislature’s policy decision in this instance, our review is limited to whether the Act violates the state constitution.”

Just because you don’t like something doesn’t mean it’s unconstitutional.