The Judges Who Stole School Choice

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A court rejects a voter-passed charter law in Washington state.

Eight new charter schools in Washington state opened this fall, but on Friday the state Supreme Court delivered a grim surprise by overturning the state’s charter law. Welcome back to the public school monopoly, kids.

The 6-3 ruling is as politically driven as it is overreaching and legally flawed. In 2012 voters approved a ballot initiative sponsored by Bill Gates and others that authorized up to 40 charter schools over five years. The law requires that charters receive per-pupil funding equal to that of traditional public schools and that taxpayer dollars follow the student.

The education axis of unions and administrators struck back in a lawsuit claiming that charters violate constitutional limits on funding for “common schools” (public schools). They also claimed charters aren’t accountable to local voters.

In fact, charters are far more accountable than traditional public schools. Charters must submit detailed applications to a state commission explaining, among other things, their curriculum, standards and plans for special-needs students. They must also submit to a public forum—i.e., a union beating. They provide annual performance reports, and the State Board of Education can sanction charters that fail to achieve their objectives and close those in the bottom quartile of public schools. Only the lowest 5% of traditional schools must propose corrective plans.

So it’s ironic that the majority cites a 1909 state Supreme Court ruling that “common schools” must be “subject to and under the control of the qualified voters” who “through their chosen agents” can “select qualified teachers, with powers to discharge them if they are incompetent.” According to the majority, charters are not “common” or accountable because their boards aren’t elected by voters—even if the law establishing them was.

The reality is that local school boards are responsible mainly to unions thanks to collective bargaining. Tenure protections all but guarantee incompetent teachers lifetime job security. Because charters are liberated from state tenure and collective-bargaining, they can dismiss lousy teachers.

The liberal majority’s real concern is preserving the union monopoly. Thus the court bars charters from tapping $2 billion in funds that the state constitution specifically restricts to so-called common schools. But the intent of this constitutional provision was to prevent the legislature from siphoning off designated education funds for other programs. Charter schools are public schools too.

The majority also blocks charters from accessing the state’s general fund because, lo, the restricted revenues come out of the same pot. Yet many education programs such as community college tuition for high school seniors are financed out of the general fund. By the majority’s logic, all of these programs are unconstitutional—and so is every other program that draws money from the general fund.

The ruling leaves 1,200 kids now attending charters in the lurch. Democratic Governor Jay Inslee hasn’t offered a solution, but the legislature needs to reconvene to pass a stopgap. In any event the liberal Justices should be held accountable for their political ruling in next year’s judicial retention election.

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