WA Supreme Court jumps the shark, waiting 11 months to release opinion invalidating schools that already started. https://t.co/YXZURRTlvp
— Jonathan Martin (@jmartin206) September 4, 2015
I have sympathy for the families who were duped into enrolling their children in charter schools before the court ruled today that they are unconstitutional, but I’ve absolutely no sympathy for the argument that the justices are somehow to blame. The court’s job is to interpret the constitution, and on this issue both the Washington State Constitution and 100 years of legal precedent are rather clear. It was never a sure thing that the court would rule Initiative 1240 unconstitutional because court rulings almost never are, but it was always more likely than not.
Article IX, Section 2 of the constitution plainly reads: “the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.” Clear enough. The whole case hinged on the legal definition of “common schools,” and since School District No. 20 v. Bryan in 1909 it has always been this:
a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity, free, and subject to and 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.
Charters, with their unelected appointed boards, totally outside the control of voters, clearly do not meet Bryan’s definition of common schools. I supposed the court could have engaged in judicial activism by futzing the issue for the sake of political expediency. Or perhaps it could have overturned the clear precedent established in Bryan. But there was no good reason to expect that the court would.
If I had to bet money I would have bet that I-1240 would be ruled unconstitutional, at least in part. And anybody with any experience reading the law could have at least foreseen this possibility. Hell, a lower court had already ruled as much!
And yet, charter school operators rushed to start up charters before the court released its opinion—perhaps betting that the court would be loath to dismantle the schools once established. If that was their gambit, they gambled and lost. Or rather, the children enrolled in these schools lost, victims of a stupid if not cynical effort to start up charter schools before the charter school law was legally settled.
Argue all you want with the legal reasoning behind the court’s 6-3 decision—the dissent makes a reasonable argument as well. But the point here is that this ruling was always possible if not likely, and thus it was irresponsible bordering on malpractice to open charter schools to enrollment before the legal issues were fully settled. It’s not the justices who are to blame for the predicament these charter school students find themselves in, it’s the charter school operators who opened their schools knowing full well that the court might soon deliver a legally mortal blow.