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Charter schools ruling is a rebuke of the privatization agenda


Friday, Sept. 4, 2015, was a good day for me. Late that afternoon, the Washington State Supreme Court issued an earth-shattering ruling for corporate education reformers: By a 6-3 decision, they determined that Washington state’s charter school law was unconstitutional.

This felt like a personal victory because I was heavily involved in the fight against charter schools in Washington state. In the lead up to the 2012 election season, where Washington voters would decide on the legality of charter schools here through popular vote on Initiative 1240, I was a very vocal opponent of the initiative and voiced my concerns about charter schools in newspaper editorials, policy analyses, educational research, and public forums.

no-on-1240-frontWashington state citizens narrowly passed I-1240 by a 50.69 percent majority vote (winning by roughly 41,000 of the more than 3,000,000 votes cast), making charter schools law here. In response to the new charter law, I was asked to join a group of individuals and organizations as plaintiffs in a lawsuit challenging the constitutionality of I-1240, where, in addition to lending my name to the suit, I provided expert advice and research in support of the legal arguments.

When the Washington State Supreme Court announced its decision overturning I-1240 as unconstitutional, I was elated. As an educational scholar-activist trying to defend public education from the forces of privatization, rarely have I felt like my personal efforts have contributed so concretely to such an important victory.

At the heart of the Supreme Court ruling was the idea that charter schools, as defined by the law, were not actually “public schools.” The key issue is this: Washington state’s constitution has a provision that only “common schools” receive tax dollars allocated for public education. The law is structured so that charter schools are governed at both the school level and state level by an appointed board, not an elected one. As such, charter schools in Washington state would receive public monies without any guarantee of accountability to any democratically elected, public body.

The Washington State Supreme Court decided that this lack of public oversight of charter schools meant that did not meet the definition of “common schools” and therefore are not eligible to receive public monies made available for public schools.


Conservative and free-market education reformers are furious about this decision.

The Washington Policy Center (whose tagline is “Improving Lives Through Market Solutions”), the CEOs of both the National Alliance for Public Charter Schools and the Washington State Charter Schools Association, and several politicians have called on Washington’s Legislature to “correct” the law by changing the funding structure so charter schools would receive tax dollars through a specific fund not associated with public schools.

These calls to shift the charter school funding in Washington state as the solution to making charter schools constitutional here point to a key issue in the agenda of charter supporters and free-market education reformers. Rather than change the governance structures of the charter schools to have publicly elected oversight of public tax dollars, as teacher Peter Greene has suggested at his Curmudgucation blog, charter supporters seek to redefine “public schools” as schools that have public money but without public accountability and regulation.

Calls to redefine what counts as “public schools” from charter supporters in Washington state should come as no surprise, considering that a good portion of the language regarding charter governance comes directly from model legislation provided by the American Legislative Exchange Council, or ALEC.

stop-alecALEC is perhaps more widely known for promoting a broad privatization agenda, “stand-your-ground” gun laws, and anti-democratic voter registration laws, amongst others. ALEC also has a privatization agenda for public education, including the promotion of charter schools generally, promotion of corporate charters and virtual schools specifically, private school vouchers, anti-union measures, “parent trigger” laws to flip public schools into privately managed charter schools, increasing testing, reducing (or eliminating when possible) the power of democratically elected local school boards, and limiting the power of public school districts.

ALEC’s influence on Washington state’s charter law is unmistakable. Most immediately visible is the inclusion of its own “trigger” provision, allowing a small majority of teachers or parents to sign a petition and flip a regular public school into a charter school.

Additionally, and more pertinent to the Washington State Supreme Court ruling, ALEC’s fingerprints are all over the charter school governance structure outlined in I-1240. Consider the similarities between the language contained in both I-1240 and ALEC’s “Charter School Growth with Quality Act” model legislation, marked in bold, italics.

Regarding the state-level commission governing charters in Washington State, I-1240, Section 208, Subsection 2:

“(2) The commission shall consist of nine members, no more than five of whom shall be members of the same political party. Three members shall be appointed by the governor; three members shall be appointed by the president of the senate; and three members shall be appointed by the speaker of the house of representatives. The appointing authorities shall assure diversity among commission members, including representation from various geographic areas of the state and shall assure that at least one member is a parent of a Washington public school student.”

But here is what the ALEC “Charter School Growth with Quality Act” model legislation Section 3, Subsection C, Number 1 regarding state level charter commissions:

“(1) Nine members, no more than five of whom shall be members of the same political party. Three members shall be appointed by the Governor; three members shall be appointed by the President of the Senate; and three members shall be appointed by the Speaker of the House of Representatives. In making the appointments, the Governor, the President of the Senate, and the Speaker of the House of Representatives shall ensure statewide geographic diversity among Commission members.”

And in I-1240, Section 208, Subsection 3:

“(3) Members appointed to the commission shall collectively possess strong experience and expertise in public and nonprofit governance; management and finance; public school leadership, assessment, curriculum, and instruction; and public education law. All members shall have demonstrated an understanding of and commitment to charter schooling as a strategy for strengthening public education.”

Compared to ALEC’s “Charter School Growth with Quality Act” model legislation Section 3, Subsection C, Number 2:

 “(2) Members appointed to the Commission shall collectively possess strong experience and expertise in public and nonprofit governance, management and finance, public school leadership, assessment, and curriculum and instruction, and public education law. All members of the Commission shall have demonstrated understanding of and commitment to charter schooling as a strategy for strengthening public education.”

copy-pasteThese comparisons may seem nitpicky, but I-1240’s plagiarism of ALEC’s model charter school legislation is critical to understanding the privatization agenda for public schools.

ALEC advocates that charter schools be governed by appointed boards with little-to-no accountability or oversight by the public because this establishes a chain of logic central to privatization: Once we agree that public tax dollars can follow the child into educational institutions not governed by the public, then we have accepted the basic premise for voucher programs that use our tax dollars to pay for private schools. This has been a major goal of ALEC and other free-market conservatives who seek to dismantle public education and profit off of our kids.

Washington state’s charter school law has other issues, such as the fact that it was promoted by a few wealthy individuals and their affiliated philanthropies. However, in this moment, what’s most important is that the Washington State Supreme Court’s decision is a major rebuke of the privatization agenda. Overturning I-1240 establishes that here in Washington state (and in the backyard of the charter-promoting Gates Foundation, no less), without public oversight, charter schools are not “common schools” and hence are not really “public schools” eligible for public funding — an argument many of us made from the beginning.

Calls by charter supporters to save charter schools in Washington state fall particularly flat in our specific context. Not only has our Legislature failed to fund the class-size reduction initiative passed by voters, but the Washington State Supreme Court has found our State Legislature is in contempt of court for not fully funding public education here.

senate-alecIn this context the hypocrisy of demanding the State Legislature convene a special session to save Washington’s charter schools is glaring. There are fewer than 10 charter schools serving a total of almost 1,300 children in Washington state. While the timing of the Washington State Supreme Court’s decision is terrible for those families and children enrolled in our charter schools, our state has yet to meet their legal obligations to fully fund the education of 1 million children currently enrolled in our actual public schools.

Just as supporters of publicly financed charter schools understand the profound implications of the Washington State Supreme Court ruling, public school supporters also need to pay close attention. As Washington State’s Supreme Court has said: If a school is not controlled by a public body, then it should not have access to public funds. The logic is simple and compelling, and opponents of public school privatization in this country need to spread that message far and wide.


Wayne Au, Ph.D. is an Associate Professor at the University of Washington-Bothell and an editor for the social justice education magazine, Rethinking Schools. He was also a plaintiff in the charter school legal challenge, along with organizations including the Washington Education Association and the League of Women Voters. This guest column originally appeared in The Washington Post and is crossposted here with the author’s permission.

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