Policy Memo on Washington State Initiative 1240

By Wayne Au

Dr. Wayne Au is an Assistant Professor of education at the University of Washington, Bothell, and he is an editor for Rethinking Schools, a magazine focused on issues of educational justice. He is a product of Seattle Public Schools (Garfield Class of ’90), and he earned his BA and MIT from The Evergreen State College. He also taught in Seattle Public Schools (including teaching at a program for drop outs) and in the Berkeley Unified School District before getting his Ph.D. in Curriculum & Instruction, with a minor in Education Policy Studies, from the University of Wisconsin, Madison. He is published widely, including multiple articles in top-tier, peer-reviewed education journals, two solo-authored books, three edited books, and a long list of book chapters and magazine articles.

Policy Memo on Washington State Initiative 1240

I’ve received multiple requests to provide a summary analysis of Initiative 1240 (I-1240). Before continuing I must make it clear that I am offering my analysis as an individual (and a scholar, a Ph.D., an educator, an activist, a parent, and concerned community member), and not in any official capacity as an employee of the University of Washington. I also need to highlight, upfront, that the work I’m doing here has already largely been done, albeit in different packaging, by Dora Taylor (here) and Melissa Westbrook (here). What I intend to do in this policy memo is outline what I see are the key components of I-1240, and then follow with some discussion of the key concerns this initiative raises for me as someone who studies education policy and practice.

Executive Summary

My concerns about I-1240 fall into 7 areas, all explained in detail below:

1. I-1240 creates a fundamentally undemocratic governance structure. At the state level will be an appointed state commission on charter schools that can authorize charters. At the school level, charter schools will be governed by an appointed charter school board. Under I-1240 it is feasible and legal that there be no democratically elected governance of charter schools at all.
2. Because of the above mentioned governance structure, I-1240 essentially creates a separate charter school system that will draw funds from an already starved regular public school system. Yes, “the money follows the child,” but under I-1240 the money will follow the child right out of the regular school system and into the newly established charter school system.
3. I-1240 redefines the “public” in “public education.” Charters under I-1240 will be “public” in that they will use public monies, but they will lack a mechanism for public accountability due to their lack of publicly elected governance.
4. The research base does not support using charters as “the answer” to achieving educational equality. Any honest look at the research base tells us that charter school performance is mixed at best, and only a handful of charter out-perform public schools.
5. Conservative politics are embedded deeply in I-1240. Using the language of “conversion charters,” I-1240 contains a parent or teacher trigger that allows for a slim majority of teachers or parents to sign a petition and convert any school into a charter. Trigger laws like this originate with the conservative American Legislative Exchange Council.
6. Because of the governance structure, it is quite possible that I-1240 is unconstitutional: Public monies must move to public schools, but are charters public if they are not governed by democratically elected boards?
7. Under I-1240, there is no requirement that charters serve low performing students, only a preference.
8. The Yes On 1240 campaign has almost exclusively been funded by in-state and out-of-state billionaires and millionaires, which raises questions regarding whose interests would be served by this initiative.

I-1240 Basic Outline (you can download the full text of I-1240 here):

• A maximum of 40 charter schools over 5 years;

• Charters would have the same teacher certification requirements as teachers in other public schools;

• Charters would be subject to an annual performance review;

• Charter contracts length would be 5 years from date of opening, assuming performance meets standards and there are no financial issues (or legal issues);

• Charters can delay opening for up to one year to prepare;

• Charters would technically be free and open to all students (a legal requirement), but students would be selected by lottery when applications exceed space;

• Although the summary section (101) says that charters would be “required to meet the same academic standards” as other schools, Section 217 (3) later says this: “Annual performance targets must be set by each charter school in conjunction with its authorizer and must be designed to help each school meet applicable federal, state, and authorizer expectations.”

• Charters would be free from many regulations for curriculum and staffing flexibility;

• They would give priority to opening charter schools that serve at-risk student populations or students from low-performing public schools;

Governance

• Charters would be authorized and overseen by a state charter school commission OR by a local school board;
• The charter school commission would be made up of 9 political appointees. From section 208 (2): “9 members, no more than 5 from same political party, 3 appointed by the governor, 3 appointed by the president of the senate, 3 appointed by the speaker of the house. 1 has to be a parent of public school student.”
• Further, section 208 (3) adds that all members of the state charter school commission “shall have demonstrated an understanding of and commitment to charter schooling as a strategy for strengthening public education.” I-1240 requires that the state commission be made up solely of charter supporters, with no critics would be allowed.
• Each individual charter would be governed by a charter school board that would be responsible for all hiring, management, assessment, firing, contracting, soliciting of grants, issuing of diplomas, etc. (essentially all school operations).
• Charter school boards are appointed or selected.

Considerations

Based on my analysis, there are several, connected issues that need to be considered with regards to I-1240.

Issue #1 – Fundamentally Anti-Democratic Governance Structure

If you look at how I-1240 structures its charter governance, it basically sets up the possibility of a parallel school system outside of public schools. While it is possible to have a locally elected school board be a charter authorizer, it is also possible to have a charter authorized by the politically appointed (read: not democratically elected) state commission on charter schools – a commission that is predetermined to have a vested interested in proving charter success (see above note on governance). Further the “charter school board” that runs the school is also selected/appointed. This means that a charter can be both authorized and governed by two bodies that have absolutely no ties to public accountability or representation. Just as problematic is that these governing bodies, which has a vested interest in proving the success of charter schools, are responsible of charter school oversight and evaluation. This is why groups like the WA PTA, who have publicly endorsed charter schools, have come out against I-1240. They see no local accountability.

Issue #2 – Siphoning Monies from an Already Strapped Public Education System

Proponents of I-1240 are quick to say that their charters won’t take money from the public school system because the money follows the student. While it is true that the money follows the student, this argument is a bit misleading. Given the above governance structure, I-1240 essentially makes each charter to be its own individual school district. Any student moving to the charter school system equals money removed out of the existing school system. The shared costs for things such as maintaining facilities, sports, busing, and other services provided for school districts working at scale will largely remain the same, but they will have to be done with fewer student monies. Further, a fiscal impact study conducted by the State of Washington notes that the administration of charters required by I-1240 will cost at least $3 million. At a time when WA state has cut $2.5 billion from education in the last 3 years, when WA has the 4th most crowded classrooms in the country, when we spend less per pupil than Mississippi, and when the State Supreme Court has ruled that we have not met our financial commitment to fully funding public education, it seems to me that charters will only contribute to educational inequality, not ameliorate it.

Issue #3 – Redefining the “public” in public education

Again, given the governance structure for charter schools, I-1240 essentially redefines “public schools” as “schools that receive public money,” while removing democratic and local accountability from the definition of “public.” The separate charter school system essentially could take public moneys but do so without any mechanism for democratic accountability to the public since all the governing bodies could be appointed or selected.

Issue #4 – The Research Doesn’t Support It

The first section of I-1240 serves as sort of a preamble of justifications for the need for the initiative itself. As such it is filled with several misinformed statements about educational research and charters. Here are three from section 101, subsection (1):

“(i) Public charter schools have cost-effectively improved student performance and academic achievement for students throughout the country, especially for students from the lowest-performing public schools;” (pg. 2)

“(j) Public charter schools serving low-income, urban students often outperform traditional public schools in improving student outcomes and are closing the achievement gap for at-risk students;” (pg. 2)

None of these are categorically true, and I would argue that they are actually categorically false. None of the research nationwide supports such strong claims about charters (see here for a good, beginning summary). Yes, some charters do show gains in test scores in some places, but there is no evidence to support the statement that charters are “proven” to increase achievement comparable to public schools. Nothing has been “proven” with regards to charter schools and student success, and even the studies done by pro-charter think tanks like the Center for Reinventing Public Education (CRPE), struggle to “prove” categorical achievement. For instance the Mathematica/CRPE study (here) found that charters in their study produced “statistically insignificant” gains in test scores in all subjects, and this was the case even though the charters in their study had fewer English language learners and students in special education. Also, the African American and Latino students in their study were already higher performers before entering into the charters in their study, and this still didn’t give them significant gains.

In general the research on charters overall is pretty clear (see here for one major example that is cited widely) – a few are high performing, most are in the middle, and fair portion do worse than public schools (certainly more are low performing than they are high performing). Also know that in many cases high performing charters either, a) have extra money from foundations to provide more support and/or, b) serve fewer English language learners and fewer (and less severe) students with special needs and/or, c) have very high attrition rates (aka – losing or counseling out low performing students). When proponents suggest that the research clearly backs their claim that charters consistently out perform regular public schools at improving the achievement of low performing students, they either have not read the research, have not understood it, or are simply being dishonest.

Issue #5 – Conservative Agenda: “Conversion Charters” and the Trigger

I’ve written about this a bit more extensively elsewhere (here), but it is critical to note that I-1240, contrary to proponents’ claims, actually contains what is called a “trigger.” Section 213(3) states:

In the case of an application to establish a conversion charter school, the applicant must also demonstrate support for the proposed conversion by a petition signed by a majority of teachers assigned to the school or a petition signed by a majority of parents of students in the school.

This means that a neighborhood school can be “converted” to a charter by a simple majority vote of parents or teachers (plus the application to the charter authorizer). Further, there is no provision in I-1240 that would require this slim majority of parents or teachers to communicate their intentions/decision with the rest of the school community (other parents, teachers, administration, or community members).

This is a classic trigger language that in other states focused only on parents, and the source of this language is from the conservative American Legislative Exchange Council (ALEC), which is gaining a national reputation for providing model language for voter I.D. laws explicitly constructed to suppress voter registration, “stand your ground” gun laws (publicized by the tragic shooting of Trayvon Martin), anti-union laws, anti-environmental protection laws, and anti-work safety laws, to name a few. Triggers like this also lend a veneer of democracy, but the reality is that once the school is converted, there is no guarantee that the teachers or parents who initiated the conversion will have any say in the governance of the school.

Related Issue: Drain on Public Schools Monies

I-1240 also states that, in the case of a conversion, the school district will still be responsible for all building/grounds maintenance and upkeep. In this way a charter conversion will directly draw monies from the regular public schools system (since the money follows the child into the charter, and the district would still be on the hook for supporting the school building).

Issue #6 – Constitutionality

As pointed out in this analysis provided by the SLOG (The Stranger blog), there may be at least two issues that make I-1240 unconstitutional. One is that, because charters could very well be governed by non-democratic, non-elected bodies and run by private non-profit companies, they would not qualify as “common schools” within the framework of the Washington State constitution and past case law – and therefore they should not be eligible to receive public school monies.

Similarly, and again due to the governance structure, another problem could exist. I-1240 section 223(2) states that:

A charter school has a right of first refusal to purchase or lease at or below fair market value a closed public school facility or property or unused portions of a public school facility or property located in a school district from which it draws its students if the school district decides to sell or lease the public school facility or property….

If charters do not qualify as a “common school” then any purchase or lease of existing school district property “below fair market value” can constitute an illegal gift of public funds.

Related Smaller Issue

The “right of first refusal to purchase or lease at or below fair market value” also opens up another issue not related to the state constitution. This provision leaves a big question: What happens when a charter management organization buys district property at below market value, and then the charter fails or is dissolved? In other cities, real estate investors have been investing in charter schools, and when the charters close down, they’ve cashed in on the real estate that was left over.

Big Issue #7 – Whom Are They Serving? Preference ≠ Guarantee

It isn’t at all clear to me that charters under I-1240 will focus on low performing students. Section 214(2) states that:

Authorizers shall give preference to applications for charter schools that are designed to enroll and serve at-risk student populations: PROVIDED, That nothing in this chapter may be construed as intended to limit the establishment of charter schools to those that serve a substantial portion of at-risk students or to in any manner restrict, limit, or discourage the establishment of charter schools that enroll and serve other pupil populations under a nonexclusive, nondiscriminatory admissions policy.

The language here is very specific. They use “give preference,” not “will.” There is no firm commitment to serving low performing students here, just a preference. Further, there is nothing here to say that someone couldn’t start a charter for high-performing students either. Similarly, if we combine this vagueness with the “conversion charter” trigger, we see the possibility of any school, high or low performing, being converted into a charter. I-1240 is a charter initiative that uses language of closing achievement gaps and serving low performing students as its justification, but it does not guarantee that any charters will be created to serve those students. It simply gives “preference,” and that language doesn’t convince me of much when the stakes could be so high.

Issue #8 – In Whose Interest?

When we line up supporters of I-1240 and those opposed, we see some clear alignment. The Yes On 1240 campaign claims to be an extension of the Washington Coalition for Public Charter Schools, but they don’t list endorsers, and it isn’t clear who constitutes this “coalition.” Instead, all we can do is look at the list of funders for the Yes On 1240 campaign. As of October 21, 2012, the Yes On 1240 Washington Coalition for Public Charter Schools had received $9,132,994.26 in donations. $6.7 million, or roughly 73% of that comes from 5 donors:

1. Bill Gates – $3,000,000;
2. Alice Walton (heiress daughter of Walmart founder, Sam Walton) – $1,700,000;
3. Nicolas Hanauer  (venture capitalist, early investor in Amazon.com) – $1,000,000;
4. Mike Bezos (father of Amazon.com founder Jeff Bezos) – $500,000;
5. Jackie Bezos (mother of Amazon.com founder Jeff Bezos) – $500,000;

Another $2.15million comes from 14 donors, mostly investors, notables in the technology industry, and corporate education reform organizations:

1. Connie Ballmer (wife of Microsoft CEO Steve Ballmer) – $500,000;
2. Anne Dinning (managing director of hedge fund giant, D.E. Shaw Investments) – $250,000;
3. Michael Wolf (Yahoo! Inc. board of directors) – $250,000;
4. Katherine Binder (EMFCO Holdings Chairwoman) – $200,000;
5. Eli Broad (real estate mogul, Broad Foundation) – $200,000;
6. Paul Allen (Microsoft co-founder) – $100,000;
7. Doris Fisher (Gap co-founder) – $100,000;
8. Reed Hastings (CEO of Netflix) – $100,000;
9. Gabe Newell (formerly of Microsoft, co-founder of video game developer Valve Corporation) – $100,000;
10. Benjamin Slivka (former Microsoft, co-founder DreamBox Learning) – $100,000;
11. Microsoft – $100,000;
12. Bruce McCaw (co-founder of McCaw Cellular, now known as Cingular Wireless) – $50,000;
13. Jolene McCaw (wife of Bruce McCaw, both of the Apex Foundation) – $50,000;
14. Education Reform Now Advocacy (a wing of the Democrats for Education Reform) – $50,000;

(Source: Public Disclosure Commission)

That’s $8.85 million, or just under 97% of the campaign being funded by just 19 donors, most of them being millionaires or billionaires, and some of them out-of-state.

The two sister No On 1240 campaigns (here and here) are quite different in nature from the Yes campaign. As one might suspect, the teachers’ union is a driving force in one. However, community groups (El Centro de la Raza, Japanese American Citizens League, and the Seattle-King County NAACP), local school boards (Renton, Tacoma, and  Seattle), state superintendents, WA state Democrats, the League of Women Voters, and parents (PTA) have endorsed either of the “no” campaigns. The two campaigns are of decidedly different flavors, and comparing them raises very fundamental questions about the relationship between democracy, power, and money.

Conclusion

Because of the above state reasons, many of them related to the issue of lack of democratic governance and lack of public accountability, I think there are reasons to be deeply concerned with I-1240 and its implications for public education in Washington State. As a final observation, and by way of summary, the following “worst case scenario” would be legal under I-1240:

• An out-of-state charter management organization (CMO) establishes non-profit status/operations in WA State;
• This CMO works with a slim majority of teachers (or parents) to convert a high performing school or a low performing school to a charter, and they do so with no notification to the other teachers or parents;
• The appointed state commission on charters approves the charter and conversion;
• The out-of-state CMO selects its own charter school board to oversee its charter school;
• Parents and students at the newly converted charter school have to make a decision about either dispersing to other schools or remaining at the new charter;
• The CMO, perhaps backed by real estate investors or with real estate investors selected for the charter school board, purchases the converted school at below market value;
• The CMO goes bankrupt or there is fiscal mismanagement or there are other ethical/legal issues (all of which have happened elsewhere) and the converted charter closes OR the charter school does not show academic improvement and is eventually closed as a “failed” school.
• Either way the now-closed building (purchased at below market value) is sold to developers at a profit to the real estate investors (Under I-1240, the only money that has to be returned to the district is that which they got from the students. All other monies return to outside funders. If outside monies purchased the school “for” the charter, then they get their money – i.e. their purchase – back).
• Parents, teachers, and students from the closed school have absolutely no recourse because the appointed charter school board has been disbanded due to failure.

And I’m not sure if it would be “worse” if this happened to a low performing school or a high performing school.