I have posted below parts of the Complaint that pertain to the unconstitutionality of the Charter School Act.
A summary of the lawsuit can be found on the post Parents, educators, and community groups file lawsuit challenging new charter school law in Washington State.
The complaint in full can be viewed at the Washington Education Association’s website.
Dora Taylor
Introduction of the Complaint:
Article IX, section 1 of the Washington Constitution establishes that the “paramount duty” of the State of Washington (“State”) is to make “ample” provision for the education of children within its borders. The State must provide for a “general and uniform” system of public schools, including “common” schools. Const., art. IX, § 2. A “common school” is a school “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.” Sch. Dist. No. 20 v. Bryan, 51 Wash. 498, 504, 99 Pac. 28 (1909). Certain state funds — revenue derived from the common school fund and the state tax for common schools — are to be used “exclusively” to support the State’s common schools. Const., art. IX, § 2, 3.
In the November 2012 general election, voters enacted Initiative Measure No. 1240 (“1-1240”), which authorizes the creation of charter schools. See ch. 28A.710 RCW, together with the sections of Titles 28A and 41 RCW added or amended by 1-1240 (collectively, “Charter School Act” or “Act”).’ Charter schools are funded from the revenues restricted by the Constitution for exclusive support of the State’s common schools. But unlike the State’s existing common schools, charter schools are operated by private non-profit corporations, are not subject to voter control, and are exempt from a wide array of state laws and rules applicable to school districts, including many of the programing requirements determined by the Legislature to meet the basic education requirements of the Constitution.
This Court already has determined, in McCleary v. State, 173 Wn.2d 477,539, 269 P.3d 227 (2012) and subsequent orders, that the State is failing to satisfy its paramount duty to make ample provision for public education. The Charter School Act further exacerbates this failure by diverting common school funds to private non-profits in violation of the Constitution.
Because the Charter School Act violates the education provisions of the Washington Constitution, impedes the State’s ability to fund public education as required by McCleary, and otherwise violates rights as outlined below, Plaintiffs seek declaratory and injunctive relief against Defendant to declare the Charter School Act unconstitutional and to prevent further implementation of the Act.
FACTS
School districts “must allocate levy moneys to a conversion charter school,” including “local levy moneys approved by the voters before the conversion start-up date of the school[.]” RCW 28A.710.220(6).
A new charter school authorized by a school district also is eligible for levy funds from levies approved before the existence of the charter school. RCW 28A.710.220(7).
The Act does not provide for consideration of the economic impact on school districts in the charter application approval process or for any discretion in the amount of funding that the State and school districts must give to a charter school. See RCW 28A.710.140, .220.
The Act also requires charter schools to comply only with certain specified local, state, and federal laws. RCW 28A.710.040(2). For example, charter schools must “[p]rovide basic education, as provided in RCW 28A.150.210, including instruction in the essential academic learning requirements [‘EARLs’] and participate in the statewide student assessment system as developed under RCW 28A.655.070[.]” RCW 28A.710.040(2)(b).
With the exception of “the specific state statutes and rules” identified in RCW 28A.710.040(2). and any “state statutes and rules made applicable to the charter school in the school’s charter contract[,] . . . [c]harter schools are not subject to and are exempt from all other state statutes and rules applicable to school districts and school district boards of directors[.]” RCW 28A.710.050(3).
Thus, although the Act defines a “charter school” as a “public, common school,” RCW 28A.710.020(l), it exempts charter schools from many of the “Common School Provisions in Title 28A RCW that are applicable to commons schools. The Act also provides that charter schools must “[p]rovide basic education, as provided in RCW 28A.150.210,” RCW 28A.710.040(2)(b), but exempts charter schools from offering many components of the education program outlined in the basic education act. For example, charter schools are exempt from the “minimal instructional requirements” for “basic education” set forth in RCW 28A.150.220.
The Act also exempts charter schools from a range of other state statutes and rules applicable to school districts “in areas such as scheduling, personnel, funding, and educational programs[.]” RCW 28A.710.040(3).
The Charter School Act also provides that charter employees are covered by the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW, and the Educational Employment Relations Act, chapter 41.59 RCW (together, “state collective bargaining laws”), but that “[a]ny bargaining unit or units established at the charter school must be limited to employees working in the charter school and must be separate from other bargaining units in school districts, educational service districts, or institutions of higher education.” RCW41.56.0251, .59.031.
CONSTITUTIONAL VIOLATIONS
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein. (Plaintiffs challenge the constitutionality of the Charter School Act in its entirety.)
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein.
Article IX, section 2 of the Constitution requires the Legislature to provide for a system of public schools, which system must include “common schools” and also may include high schools, normal schools, and technical schools.
Article IX, sections 2 and 3 require that certain state funds be used exclusively to support the State’s common schools. A “common school,” as the term is used in the Constitution, means a school: 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 power to discharge them if they are incompetent. Sch. Dist. No. 20 v. Bryan, 51 Wash. 498, 504, 99 Pac. 28 (1909).
Using enumerated state monies to fund schools other than common schools violates the Constitution.
The Charter School Act requires the State to apply monies from the restricted state common school fund to support charter schools. Charter schools do not meet the requirements for common schools because charter schools are neither subject to, nor under the control of, the qualified voters of the school district.
For example, voters do not have the right, through their chosen agents, to select and discharge teachers. Instead, a charter school board comprised of members appointed or selected under the terms of a charter application submitted by a private non-profit corporation has the authority to hire, manage, and discharge any charter school employee.
Additionally, voters do not have the right to elect agents with supervisory authority over charter schools authorized by the Commission. Instead, the Commission, which is comprised of appointed members, supervises the charter schools it authorizes.
Thus, the Charter School Act violates article IX, sections 2 and 3 of the Constitution by applying restricted state common school funds to support schools other than common schools.
Title 28A RCW’s “Common School Provisions,” which include the basic education act, “satisfy the ‘general and uniform’ portion of the legislature’s article IX duty.” Id. at 525 (citation omitted).
The Charter School Act exempts charter schools from numerous provisions in the “Common School Provisions,” Title 28A RCW. For example, charter schools arenot required to offer certain components of the education program outlined in the basic education act, including many of the “minimal instructional requirements” for “basic education” set forth in RCW 28A. 150.220. Charter schools also are exempt from a range of other state statutes and rules applicable to school districts “in areas such as scheduling, personnel, funding, and educational programs[.]” RCW 28A.710.040(3).
Thus, the Charter School Act violates the general and uniform requirement of article IX, section 2 of the Constitution because charter schools do not offer every child the same advantages or subject them to the same discipline as every other child in Washington public schools and, thus, charter schools are not required to offer students a constitutionally sufficient education.
ARTICLE IX, SECTION 1 OF THE CONSTITUTION (PARAMOUNT DUTY)
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein.
Article IX, section 1 of the Constitution establishes that “[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders[.]”
In order to comply with its paramount duty under Article IX, the State must provide “substantive content” to the word “education” and to the “program it deems necessary to provide that ‘education’ within the broad guidelines.” Seattle Sch. Dist. No.1 v. State, 90 Wn.2d 476, 5 18-19, 585 P.2d 71(1978).
The State may delegate the execution of public functions to an administrative agency or private entity only if adequate standards, guidelines, and procedural safeguards exist. Specifically, the State must provide standards to indicate what is to be done and designate the agency to accomplish it. Additionally, the State must provide procedural safeguards to control arbitrary administrative action and abuse of discretionary power.
The Charter School Act constitutes an unconstitutional delegation of the State’s paramount duty because the Act fails to provide sufficient standards and guidelines to charter schools to ensure they provide a constitutionally sufficient education and fails to provide procedural safeguards to control arbitrary administrative action and abuse of discretionary power.
The Legislature has defined the substance of the constitutionally required “education” by, among other things, identifying the four learning goals set forth in RCW 28A.150.210 and adopting the EALRs.
Additionally, however, the Legislature also has defined the program necessary to provide this constitutionally required education by identifying several offerings, including the education program outlined in the basic education act.
The Charter School Act fails to set forth standards and guidelines to ensure that charter schools offer the program necessary to provide a constitutionally sufficient education. The Act does not require charter schools to offer the program that the Legislature has deemed necessary to provide students with a basic education. For example, charter schools are not required to offer many of the “minimal instructional requirements” for “basic education” set forth in RCW 28A. 150.220. Charter schools also are exempt from a range of state statutes and rules applicable to school districts in areas including scheduling, personnel, funding, and programming. The Act offers no standards or guidelines for replacing these programing requirements.
The Charter School Act also fails to set forth standards and guidelines regarding the conversion of a public school into a charter school. The Charter School Act requires only that a conversion application include a petition signed by a majority of parents or teachers at the school and that the conversion charter school provide sufficient capacity to allow any enrolled student to remain after the conversion. The Act provides no standards or guidelines for the formation or implementation of a conversion school, including but not limited to what options students who do not want to attend the conversion charter would have, whether teachers and other staff would continue to be employed at the school, or how the conversion would accommodate programs for special needs students or other specialty programs housed at the school.
The Charter School Act also constitutes an unconstitutional delegation of the State’s paramount duty because the Act lacks procedural safeguards to control arbitrary action and abuse of discretionary power by private non-profits.
The private interest at stake is the affirmative right of all children residing within the state to have the State make ample provision for their education through a general and uniform common school system. This right is paramount under the Constitution.
There is great risk of an erroneous deprivation of that interest because the Charter School Act exempts charter schools from offering the programs needed to provide a constitutionally sufficient education. There is no mechanism for voters or parents of students at charter schools to control the programs offered by charter schools or the hiring or firing decisions at the school.
The Act provides that authorized schools districts and the Commission may revoke or decline to renew charter contracts only under specified circumstances and only after notice, time to prepare a response, a hearing that includes documents and testimony, a reasonable period for deliberation, and a final written determination, during which time all students enrolled at the charter school would be receiving a constitutionally inadequate education.
At charter schools authorized by the Commission, no elected official has supervisory authority over the private charter school board or the authority to revoke or decline to renew a charter contract.
The State’s interest (if any) in maintaining the limited procedures applicable to charter schools is minimal.
For at least these reasons, the Charter School Act violates the State’s paramount duty under article IX, section 1 of the Constitution because the Act fails to provide adequate standards, guidelines, and procedural safeguards to ensure that students receive a constitutionally sufficient education.
ARTICLE IX, SECTION 1 OF THE CONSTITUTION (AMPLE PROVISION FOR EDUCATION)
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein.
Article IX. section 1 of the Constitution establishes that the “paramount duty” of the State is to make ample provision for the education of all children residing within its borders.
The State has failed and continues to fail to provide the funding needed to fulfill this duty. As a result, in McCleary, 173 Wn.2d at 547, the Washington Supreme Court ordered the Legislature to fully fund basic educational programs by 2018.
Charter schools are not part of the basic educational programs the Supreme Court ordered the Legislature to fund.
Charter schools are exempt from many of the basic education requirements identified by the Washington Supreme Court as necessary to provide a constitutionally sufficient education.
The Charter School Act requires that already deficient state funds be diverted to support charter schools.
The Act does not provide for consideration of the economic impact on school districts in the charter approval process or for any discretion in the amount of funding that the State and school districts must provide to a charter school.
The Charter School Act therefore violates article IX, section 1 of the Constitution and is contrary to the Supreme Court’s decision in McCleary because the Act diverts funds from public schools to charter schools without providing any mechanism to ensure that doing so will not interfere with the State’s paramount duty to make ample provision for education.
ARTICLE III, SECTION 22 OF THE CONSTITUTION (SUPERINTENDENT SUPERVISION)
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein.
Article III, section 22 of the Constitution requires that the state superintendent of public instruction “have supervision over all matters pertaining to public schools[.]”
The Charter School Act defines charter schools as public common schools.
The Charter Commission, through its management, supervision, and enforcement of the charter contracts, administers the portion of the public common school system consisting of the charter schools it authorizes.
Members of the Charter Commission are appointed by the Governor, the President of the Senate, and the Speaker of the House of Representatives, not the superintendent of public instruction.
The Charter Commission is an independent state agency and is not subject to oversight by the board of education or the superintendent of public instruction.
The Charter School Act provides that a charter school is managed and operated by a charter school board, which is comprised of members appointed or selected under the terms of a charter application, not the superintendent of public instruction.
The superintendent of public instruction thus has no supervisory authority over the Charter Commission or charter schools authorized by the Charter Commission in violation of Article III, section 22 of the Constitution.
ARTICLE VII, SECTION 2(a) OF THE CONSTITUTION (SCHOOL DISTRICT LEVIES)
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein.
Article VII, section 2(a) of the Constitution requires that “a proposition under this subsection to levy an additional tax for a school district shall be authorized by a majority of the voters voting on the proposition, regardless of the number of voters voting on the proposition[.]”
Because levies of taxes must be approved by voters in the tax district, taxes levied for one purpose cannot be applied by the district to another purpose.
RCW 84.52.053 grants school districts the authority to levy taxes. Under this provision, voters in nearly every school district in Washington have passed levies for the funding of education and/or for construction of school facilities in their respective districts.
The Charter School Act improperly mandates the use of school district levy funds already approved by voters for a purpose other than the purpose for which the levies were approved.
RCW 28A.710.220(6) requires that conversion charter schools receive levy funds from levies approved by the voters before the existence of the conversion charter school.
RCW 28A.710.220(7) provides that a new charter school authorized by the school district also is eligible for levy funds from levies approved before the existence of the charter school.
Voters in each district approved levies for a specified purpose and use, including but not limited to the purpose of funding the school district’s public, common schools, without knowing that the money would be diverted to charter schools.
The Charter School Act therefore violates article VII, section 2(a) of the Constitution by changing the purpose of taxes levied by school districts.
ARTICLE II, SECTION 37 OF THE CONSTITUTION (LEGISLATIVE AMENDMENT)
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein.
Article II, section 37 of the Constitution requires that “[n]o act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.”
Under article II. section 37, where a new enactment is not a complete act such that the scope of the rights or duties created or affected by the new enactment can be determined without referring to any other statute or enactment, the existing act and/or section must be set forth in full.
Additionally, where a straightforward determination of the scope of rights or duties under the existing statutes would be rendered erroneous by the new enactment, the existing act and/or section must be set forth in full.
1-1240 and the Charter School Act revise and amend the scope of rights and duties of common schools, and the rights and duties of common schools to provide a basic education, without setting forth those revisions and amendments in full.
Although the Act defines a “charter school” as a “public, common school,” RCW 28A.710.020(l), the Act also exempts charter schools from many of the “Common School Provisions” in Title 28A RCW that are applicable to commons schools.
Additionally, although the Act requires that charter schools “[p]rovide basic education, as provided in RCW 28A.150.210,” RCW 28A.710.040(2)(b), the Act also exempts charter schools from offering many components of the education program outlined in the basic education act. For example, charter schools are exempt from the “minimal instructional requirements” for “basic education” set forth in RCW 10 28A.150.220.
1-1240 and the Charter School Act fail to set forth these revisions and amendments to existing law in full, in violation of article II. section 37 of the Constitution.
1-1240’s and the Charter School Act’s effect on the scope of the rights and duties of common schools, including but not limited to the scope of the rights and duties of common schools to provide a basic education, cannot be determined without referring to existing provisions governing common schools and the basic education act.
Additionally, a straightforward determination under existing law of the scope of the rights or duties of common schools, including but not limited to the rights or duties of common schools to provide a basic education, would be rendered erroneous by the revisions and amendments in 1-1240 and the Charter School Act.
1-1240 and the Charter School Act also revise and amend the scope of the rights and duties under state collective bargaining laws without setting forth those revisions and amendments in full.
RCW 41.56.0251 and RCW 41.59.031 provide that charter employees are covered by state collective bargaining laws.
1-1240 and the Charter School Act purport to add new sections to state collective bargaining laws that restrict bargaining units to charter employees working in each charter school but fail to set forth existing sections of state collective bargaining laws governing the determination of bargaining units.
1-1240 and the Charter School Act fail to set forth these revisions and amendments to existing law in full, in violation of article iT, section 37 of the Constitution.
1-1240s and the Charter School Act’s effect on the scope of rights and duties regarding the determination of collective bargaining units cannot be determined without referring to existing state collective bargaining provisions.
Additionally, a straightforward determination under existing law of the scope of the rights and duties regarding the determination of collective bargaining units would be rendered erroneous by the revisions and amendments to existing state collective bargaining laws in 1-1240 and the Charter School Act.
Thus, 1-1240 and the Charter School Act amend existing law in violation of article II, section 37 of the Constitution.
FIRST CAUSE OF ACTION: DECLARATORY JUDGMENT
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein.
For reasons including but not limited to those stated herein, an actual dispute exists between Plaintiffs and Defendant, which parties have genuine and opposing interests, which interests are direct and substantial, and of which dispute a judicial determination would be final and conclusive.
Alternatively, this matter raises important constitutional questions about the State’s paramount duty to provide an education to children within its boundaries, and a judicial opinion will benefit the public, other branches of government, and school districts within the state.
Plaintiffs will suffer immediate damage and harm if the Charter School Act is not declared unconstitutional and is permitted to be enforced.
Plaintiffs are, therefore, entitled to a declaratory judgment that the Charter School Act is unconstitutional, as well as such other and further relief as may follow from the entry of such a declaratory judgment.
VIII. SECOND CAUSE OF ACTION: INJUNCTIVE RELIEF
Plaintiffs repeat and re-allege each of the foregoing allegations as though fully set forth herein.
For reasons including but not limited to those stated herein, Plaintiffs are entitled to prevent implementation of the Charter School Act.
Plaintiffs have clear legal rights to prevent implementation of the Charter School Act as described herein.
Plaintiffs have a well-grounded fear of immediate invasion of those rights by Defendant, which invasion will result in actual and continuing injury. No adequate remedy at law exists to remedy this invasion of Plaintiffs’ rights.
Plaintiffs are, therefore, entitled to an injunction prohibiting implementation of the Charter School Act.
In other words…
Seattle Education 