As its “paramount” constitutional duty, Washington State must amply fund a “general and uniform system of public schools.”1×1. Wash. Const. art. IX, §§ 1–2; see Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 96 (Wash. 1978). This system must include common schools with dedicated funding.2×2. Wash. Const. art IX, §§ 2–3 (dedicating a common school fund, common school construction fund, and state tax for common schools “exclusively” to common schools, id. § 3). In 2012, voters passed Initiative 12403×3. Initiative Measure No. 1240 (approved Nov. 6, 2012), https://wei.sos.wa.gov/agency/osos/en/press_and_research/PreviousElections/2012/General-Election/Documents/I-1240_complete_text.pdf [http://perma.cc/NJ4N-FYYH] (codified in scattered sections of Wash. Rev. Code § 28A (2014)); see also Wash. Rev. Code § 28A.710. (“the Act”). The Act authorized the creation of forty charter schools, which it defined and funded as common schools.4×4. Initiative Measure No. 1240, §§ 202(1), 215(1), 220, 223(1) (codified at Wash. Rev. Code §§ 28A.710.020(1), 28A.710.150(1), 28A.710.220, 28A.710.230(1)). Last fall, in League of Women Voters of Washington v. State,5×5. 355 P.3d 1131 (Wash. 2015). the Washington Supreme Court struck down the Act.6×6. Id. at 1133. The court held that charters were not common schools because local voters did not control them; therefore, they could not receive common school funds.7×7. Id. at 1137.
Dictum in the court’s original opinion offered an additional ground for the Act’s invalidity: charters breached the constitution’s “uniform system” requirement.8×8. League of Women Voters of Wash. v. State, No. 89714-0, slip op. at 11 n.10 (Wash. Sept. 4, 2015). The court later ordered this discussion deleted.9×9. Order Changing Opinion and Denying Further Reconsideration, League of Women Voters, 355 P.3d 131 (No. 89714-0). Instead, the court should have emphasized and expanded upon it. Stressing the Act’s creation of heterogeneous charter schools paralleling and competing with the common schools of the uniform public system would have explained the legislature’s inability to implement the Act by appropriating alternative funds. Moreover, it would have clarified Washington’s continued authority to support non-common school enrichment programs as part of the public education system.
Washington had traditionally provided education through school districts overseen by the State Board of Education and the Superintendent of Public Instruction (SPI).10×10. See T.J. Kelly & Calvin W. Brodie, Office of Superintendent of Pub. Instruction, Organization and Financing of Washington Public Schools 27–35 (2011), http://www.k12.wa.us/safs/PUB/ORG/13/Final%20Edition%202013.pdf, [http://perma.cc/QXF2-X33A]. The SPI has “supervision over all matters pertaining to public schools.” Wash. Const. art. III, § 22. The Act established an alternative educational scheme. It permitted private nonprofits to operate state-funded schools11×11. Wash. Rev. Code § 28A.710.010(1) (2014). and defined these charter schools as “public, common school[s].”12×12. Id. § 28A.710.020(1); accord id. § 28A.710.020(2). Charters did need to comply with the state’s basic education goals, essential academic learning requirements (EALRs), and testing regime.13×13. Id. § 28A.710.040(2)(b). The basic education goals require “opportunities . . . to develop” general competencies such as critical thinking. Id. § 28A.150.210. EALRs outline subject-specific goals. E.g., Mary McClellan & Cary Sneider, Office of Superintendent of Pub. Instruction, Washington State K-12 Science Learning Standards (version 1.2 2010) (describing what “students are expected to know . . . in the area of science” but not “prescrib[ing] teaching methods” or “curriculum,” id. at 1). Yet the Act “free[d]” them from “many regulations” imposed on other common schools, including those governing curricula, personnel, and instructional requirements.14×14. Wash. Rev. Code § 28A.710.005(1)(n)(viii); see also id. § 28A.710.040(3).
Under the Act, either a statewide charter school commission or host school districts would authorize and monitor charters.15×15. Id. §§ 28A.710.080, 28A.710.100. “[E]xcept as otherwise provided,” charters remained “subject to the supervision” of the SPI and State Board of Education. Id. § 28A.710.040(5). The appointed commission was an independent agency, exempt from oversight by the Board of Education or SPI.16×16. See id. §§ 28A.710.070(1)–(2), 28A.710.070(8). Significantly, all prospective commissioners needed to demonstrate “commitment to charter schooling.” Id. § 28A.710.070(3). Though authorizers would specify “performance expectations,”17×17. Id. § 28A.710.160(2); see also id. § 28A.710.170. these had to conform to standards of the pro-charter National Association of Charter School Authorizers.18×18. Id. § 28A.710.100(3). Moreover, oversight could “not unduly inhibit” charters’ “autonomy.”19×19. Id. § 28A.710.180(2).
The SPI would allocate funds to charter schools based on enrollment using “the same funding criteria used for noncharter public schools.”20×20. Id. § 28A.710.220(2). Charters would receive a share of local levies.21×21. Id. § 28A.710.220(5)–(8). They could “apply for state grants on the same basis as a school district”22×22. Id. § 28A.710.220(2). and obtain “matching funds for common school construction.”23×23. Id. § 28A.710.230(1).
Parents, educators, and educational and civic organizations sued in King County Superior Court for a declaratory judgment of the Act’s unconstitutionality and an injunction against its implementation.24×24. Complaint for Declaratory Judgment & Injunctive Relief at 3–8, League of Women Voters of Wash. v. State, No. 13-2-24997-4 SEA, 2013 WL 11109512 (Wash. Super. Ct. Dec. 12, 2013). Ruling on cross-motions for summary judgment, Judge Rietschel found the Act’s funding provisions unconstitutional but severable.25×25. League of Women Voters, 2013 WL 11109512, at *4–5. She held that the charters met the constitution’s uniformity requirement but were impermissibly designated common schools in light of a lack of local control.26×26. See id. at *3. Thus, the Act impermissibly diverted revenue from the dedicated common school construction fund to charters.27×27. Id. at *4. As a facial challenge, the trial court avoided other constitutional concerns. Id.
The Washington Supreme Court heard League of Women Voters on direct appeal. Writing for the court, Chief Justice Madsen agreed that the Act misdesignated charters as common schools and illegally granted them access to the common school construction fund; however, she also held the Act’s other funding mechanisms invalid.28×28. See League of Women Voters, 355 P.3d at 1133–34. Justices Johnson, Owens, Stephens, Wiggins, and Yu concurred. Reversing the superior court’s conclusion that the void provisions were severable, she declared “the entire Act unconstitutional.”29×29. Id. at 1141.
For Chief Justice Madsen, the case hinged on School District No. 20 v. Bryan,30×30. 99 P. 28 (Wash. 1909). which defined common schools as falling under local voter control.31×31. League of Women Voters, 355 P.3d at 1137 (citing Bryan, 99 P. at 30). Charters failed this requirement because “appointed board[s] or nonprofit organization[s]” ran them.32×32. Id. The court had also noted that the appointed statewide commission could establish charters anywhere in the state. Id. at 1134. Therefore, the court found charters constitutionally barred from using any fund dedicated to common schools: the common school fund, common school construction fund, and state tax for common schools.33×33. Id. at 1138–39. The court placed in the final category “all money ‘allocated to the support of the common schools’” regardless of its source.34×34. Id. at 1138 (emphasis added) (quoting State ex rel. State Bd. for Vocational Educ. v. Yelle, 91 P.2d 573, 575 (Wash. 1939)). The legislature had appropriated the basic education allocation for common schools, a portion of which the Act unconstitutionally redirected to charters.35×35. Id. at 1139 (citing Wash. Rev. Code §§ 28A.710.220(2), 28A.150.200, 28A.150.250(1), 28A.150.380(1) (2014)). Alternatively, even had the state tax for common schools consisted only of the common school property levy, the court would have prohibited funding charters out of the portion of the education allocation derived from unrestricted revenue.36×36. See id. Commingling the state’s general fund with its property levy made it impossible to ensure that only common schools drew from the latter.37×37. See id. The property levy is a statewide tax collected for common schools and deposited into the general fund. See Wash. Rev. Code §§ 84.52.065, 84.52.067. Finally, the Act impermissibly granted charters restricted common school construction funds.38×38. League of Women Voters, 355 P.3d at 1140 (citing Wash. Rev. Code § 28A.710.230(1)). Because these funds were central to the Act’s approval and necessary for its operation, the court invalidated the entire Act.39×39. Id. at 1140–41. Severability was impermissible if an invalid provision was “so connected to the remaining provisions that it [could not] be reasonably believed that” voters would have passed only the valid remainder or if that remainder was “useless” to achieve the Act’s purpose. Id. at 1140. The Act failed both prongs: proponents had sold the Act as a costless shift of revenue from common to charter schools, and the consequent lack of funding rendered charters unviable. Id. at 1141. Justice Fairhurst reached the opposite conclusion. First, neither the bill nor the voters’ guide stated that charters would use restricted funds. Thus, voters had not presumed their use. Id. at 1147 (Fairhurst, J., concurring in part and dissenting in part). Second, the Act still permitted creation of forty charters within five years if the legislature appropriated funds. Id. at 1148.
Prior to the opinion’s amendment, dictum tucked in footnote ten provided an additional ground for the Act’s unconstitutionality: lack of voter control ruptured the requisite uniformity of the common school system.40×40. League of Women Voters of Wash. v. State, No. 89714-0, slip op. at 11 n.10 (Wash. Sept. 4, 2015). Bryan required that a uniform system give each child “the same advantages” and subject him “to the same discipline.”41×41. Sch. Dist. No. 20 v. Bryan, 99 P. 28, 29 (Wash. 1909). It highlighted “control through school boards and county superintendents” and a regular procedure for hiring “efficient teachers” as undergirding this uniformity.42×42. League of Women Voters, slip op. at 11 n.10 (quoting Bryan, 99 P. at 29). The legislation in Bryan breached uniformity by shifting resources and pupils from common schools under districts’ control to academies under the direction of normal schools.43×43. See Bryan, 99 P. at 29–30. Likewise, the Act would “eliminate the local voter control that [was] a hallmark of common schools, thereby resulting in different (nonuniform) governance for charter schools.”44×44. League of Women Voters, slip op. at 11 n.10. Yet the court declined to elaborate on this observation, preferring to ground its holding on the unconstitutional diversion of common school funds.45×45. Id. In fact, it ultimately struck footnote ten following a motion for reconsideration.46×46. Order Changing Opinion and Denying Further Reconsideration, supra note 9; see also State of Washington’s Motion for Reconsideration at 7–10, League of Women Voters, 355 P.3d 1131 (No. 89714-0).
Justice Fairhurst concurred in part and dissented in part.47×47. Justices González and McCloud joined Justice Fairhurst’s opinion. Despite agreeing that charters were not common schools, she rejected the facial challenge because the Act did not “expressly require the use of restricted funds.”48×48. League of Women Voters, 355 P.3d at 1141 (Fairhurst, J., concurring in part and dissenting in part). She identified the state tax for common schools as the common school property levy. Because this levy “constitute[d] only a fraction of the total appropriation” for public schools, the State could fund charters out of the rest.49×49. Id. at 1143. The onus lay on plaintiffs to prove that an act could not be “applied under any circumstances.” Id. at 1146. In arguing that commingling precluded the State from showing use of unrestricted funds, the majority had reversed this burden. Id. Justice Fairhurst also rejected the theory that commingling the property levy and general fund rendered both restricted, as this would forbid “any expenditure” from the latter unless it supported common schools. Id. at 1144. Not only did Justice Fairhurst deny that education appropriations became, ipso facto, the protected tax, but she also noted that a statute used by the majority to establish the allegedly restricted appropriation did not itself appropriate funds.50×50. Id. at 1144. It required future appropriations. Wash. Rev. Code § 28A.150.380(1) (2014). Yet the statute did authorize support of “additional, noncommon school educational programs.”51×51. League of Women Voters, 355 P.3d at 1144 (Fairhurst, J., concurring in part and dissenting in part); see id. at 1144–45; see also Wash. Rev. Code § 28A.150.380(2). Thus, appropriations under the statute could fund any educational program — including charters.52×52. League of Women Voters, 355 P.3d at 1146 (Fairhurst, J., concurring in part and dissenting in part). Finally, even were current appropriations restricted, she suggested that the next budget could fund the Act with a line item for charters.53×53. Id. at 1147. Justice Fairhurst also argued that, although the Act made charters eligible for “matching funds for common school construction,” it did not stipulate payment from the common school construction fund. Id. at 1143 (quoting Wash. Rev. Code § 28A.710.230(1)). Just as most basic education financing came from sources other than the property levy, unrestricted funds covered most public school construction. Id.
By relying solely on the Act’s misappropriation of restricted funds, the court failed to dispose of two questions raised by Justice Fairhurst: First, what prevented the legislature from fulfilling the Act’s mandate by appropriating separate, unrestricted funds for charters in the next budget?54×54. See id. at 1147. Second, why could the State fund other non-common-school education programs but not charters?55×55. See id. at 1144–45. Footnote ten suggested the basis for one response: charters violate the uniformity clause. Not only do charters not qualify as common schools, but — as heterogeneous alternatives to the parallel system of common schools — their support also conflicts with the State’s paramount duty to provide a uniform education system. In contrast, supplemental programs that do not fill the same niche as common schools do not implicate the uniformity clause and are permissible components of the public education system.
Article IX of the constitution commands the State to provide amply for public education.56×56. Wash. Const. art. IX, § 1. The legislature must “discharge” this paramount duty “by means of a ‘general and uniform system of public schools,’”57×57. Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 96 (Wash. 1978) (quoting Wash. Const. art. IX, § 2). to which children possess a positive right.58×58. Id. at 76; McCleary v. State, 269 P.3d 227, 247–48 (Wash. 2012). This uniform system must have a “unity of purpose as well as an entirety of operation,”59×59. Northshore Sch. Dist. No. 417 v. Kinnear, 530 P.2d 178, 202 (Wash. 1974) (quoting Serrano v. Priest, 487 P.2d 1241, 1248 (Cal. 1971)), overruled on other grounds by Seattle Sch. Dist., 585 P.2d 71. The State must provide “minimum and reasonably standardized educational and instructional facilities and opportunities”; it must administer the system with enough uniformity for children to acquire basic skills and to change schools without losing credit. Fed. Way Sch. Dist. No. 210 v. State, 219 P.3d 941, 946–47 (Wash. 2009) (quoting Northshore Sch. Dist., 530 P.2d at 202). which requires regularity of educational opportunity and governance. Within the common school framework, the legislature has defined the former by specifying “uniform educational content, teacher certification, and instructional hour requirements . . . with access to substantially the same educational opportunities” in all schools.60×60. Fed. Way Sch. Dist., 219 P.3d at 947 (citing Wash. Rev. Code §§ 28A.150.200, 28A.410 (2014)). The State has provided for common schools’ structural uniformity by “promulgat[ing] an integrated system of agencies for the acquisition, construction, financing, administration, supervision, maintenance and operation of public schools.”61×61. State ex rel. DuPont-Fort Lewis Sch. Dist. No. 7 v. Bruno, 384 P.2d 608, 612 (Wash. 1963). That hierarchical system has made educational organs from the SPI down to local districts “[a]dministratively and functionally . . . interdependent.”62×62. Id. They have collectively delivered a comprehensive educational program.
Charters disrupt this uniform system. First, they undermine uniformity of educational opportunity. For example, the Act did not bind charters to the “educational content” or “instructional hour requirements” that the court has emphasized as uniform aspects of common schools.63×63. Fed. Way Sch. Dist., 219 P.3d at 947 (citing Wash. Rev. Code §§ 28A.150.200, 28A.410); see Wash. Rev. Code § 28A.710.040. Contrary to Bryan’s explicit dictate, charters’ students are not “subject to the same discipline as every other child.”64×64. Sch. Dist. No. 20 v. Bryan, 99 P. 28, 29 (Wash. 1909). Compare Wash. Rev. Code § 28A.710.040, with, e.g., id. § 28A.150.300. Though pupils can transfer from charters to other public schools without losing credit — another judicially imposed proxy for uniformity65×65. Fed. Way Sch. Dist., 219 P.3d at 946–47 (citing Northshore Sch. Dist. No. 417 v. Kinnear, 530 P.2d 178, 202 (Wash. 1974)). — the Act accomplishes this by fiat, rather than by ensuring uniform training.66×66. See Wash. Rev. Code § 28A.710.060(2). Moreover, the Act does not guarantee that a student transferring into a charter will not lose standing.
Secondly, charters disrupt the coherence of common-school governance. Substituting private boards for local voters “result[s] in different (nonuniform) governance for charter schools as compared to common schools.”67×67. League of Women Voters of Wash. v. State, No. 89714-0, slip op. at 11 n.10 (Wash. Sept. 4, 2015). The court might also have noted that charters offend the integrated and interdependent structure of educational oversight. Whereas common schools answer in turn to school districts, the State Board of Education, and the SPI, charters may answer only to their authorizers,68×68. See, e.g., Wash. Rev. Code §§ 28A.710.100, 28A.710.070. which may not “unduly inhibit” charters’ “autonomy.”69×69. Id. § 28A.710.180(2).
Because charters disrupt the public school system, the State cannot fund them. Article IX requires the legislature to amply fund the public system through “dependable and regular tax sources.”70×70. See Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 97 (1978); id. at 96–97. This is “the State’s first and highest priority before any other state programs.”71×71. McCleary v. State, 269 P.3d 227, 249 (Wash. 2012) (quoting McCleary v. State, No. 07-2-02323-2 SEA, 2010 WL 9073395, at *21 (Wash. Super. Ct. Feb. 4, 2010)). Yet, because funding follows students, the Act diverts funds from common schools within the constitutionally required public system and directs them to discretionary charters.72×72. Wash. Rev. Code § 28A.710.220; see, e.g., Office of the Sec’y of State, State of Washington & Clark County Voters’ Pamphlet: November 6, 2012 General Election 14–18 (2012), https://wei.sos.wa.gov/agency/osos/en/press_and_research/PreviousElections/2012/General-Election/Documents/14-%20Clark.pdf [http://perma.cc/9HFS-5UVG]. In shifting revenue to charters on a per pupil basis, the Act follows the practice in all states with charters. Yilan Shen & Alexander Berger, Charter School Finance 1–2 (2011), http://www.ncsl.org/documents/educ/charterschoolfinance.pdf [http://perma.cc/BCQ3-33KX].
Similar reasoning drove Florida’s Supreme Court to invalidate that state’s voucher program in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006). Id. at 398, 408–09. Florida’s constitution declared an adequately funded, uniform system of public schools a “paramount duty of the state.” Fla. Const. art. IX, § 1. Yet, like Washington’s Act, Florida’s program diverted funds from the mandated system to nonuniform schools on a per-pupil basis. Holmes, 919 So. 2d at 408–09. (Although the vouchers were doubly odious because they funded private schools, the court principally objected to their funding schools that were nonuniform. Id. at 398.) This impermissibly reduced money available to the uniform public system that provided “the exclusive means set out in the Constitution . . . to make adequate provision for the education of children.” Id. at 408–09. The current inadequacy of public school funding only accentuates this breach. In 2012, McCleary v. State73×73. 269 P.3d 277. declared this funding deficient.74×74. Id. at 231. In August 2015, the court imposed monetary sanctions in the face of continued default.75×75. Order, McCleary v. State, No. 07-2-02323-2 SEA (Wash. Aug. 13, 2015). Because charters are not part of the public system, funding them directly contravenes McCleary’s command to amply fund the public system before any other program.76×76. Id. at 2; McCleary, 269 P.3d at 249. The State may not simply appropriate less for common schools and reallocate the savings to charters.
In addition to withdrawing financing from the constitutionally required public system, supporting charters compounds the injury by undercutting the system’s mandated uniformity. As noted above, the uniform system provides the sole means for the legislature to discharge its duty to “provi[de] for the education of all children.”77×77. Wash. Const. art. IX, § 1. Yet, the Act seeks to transfer children out of the uniform system and into a parallel system of heterogeneous academies. Supporting charters in direct competition with the uniform system’s common schools works at cross-purposes with the legislature’s primary obligation.78×78. The Florida Supreme Court likewise objected that the Florida voucher program “foster[ed] plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system” and “in competition with the free public schools that are the sole means set out in the Constitution for the State to provide for” education. Bush v. Holmes, 919 So. 2d 392, 398 (Fla. 2006).
The State and Justice Fairhurst wrongly argued that footnote ten’s approach to the uniformity clause not only banned charters, but also threatened supplemental educational programs.79×79. See State of Washington’s Motion for Reconsideration, supra note 46, at 7–10. Unlike charters, which replace common schools, permitted programs “enrich the program of basic education.”80×80. Wash. Rev. Code § 28A.150.380 (2014). Like Bryan, footnote ten demanded local control not as a per se requirement of uniformity, but rather as a “hallmark of common schools” within the public system.81×81. League of Women Voters of Wash. v. State, No. 89714-0, slip op. at 11 n.10 (Wash. Sept. 4, 2015). Bryan did not require that all aspects of the public system operate under the control of local school boards and county superintendents.82×82. Sch. Dist. No. 20 v. Bryan, 99 P. 28 (Wash. 1909). The legislature eliminated county superintendents in 1969. 1969 Wash. Sess. Laws 1271. Rather, Bryan objected to model schools’ masquerading as common schools while they avoided the latter’s governance structure by operating under the aegis of normal schools.83×83. Bryan permitted funding normal schools if they did not receive dedicated funds. Bryan, 99 P. at 30–31. Unlike common schools, normal schools were “not intended for the education of the children . . . but for the training of teachers.” Id. at 30 (quoting Gordon v. Cornes, 47 N.Y. 608, 616 (1872)). Likewise, model schools’ “main purpose” was “to benefit the normal pupil.” Id. In contrast, supplemental programs like the Youth Offender Program and University of Washington’s Early Entrance Program do not fill the same niche as common schools.84×84. See Reply Brief of Appellants at 18, League of Women Voters, 355 P.3d 1131 (No. 89714-0). Respectively, these serve prisoners unable to attend common schools85×85. Wash. Rev. Code § 28A.193.005–901. and gifted students, whose needs go unmet in common schools.86×86. Id. § 28A.185.040. By serving distinct populations, they do nothing to break the uniformity of common schools or, therefore, of the larger public school system.87×87. Florida’s Supreme Court similarly concluded that banning vouchers did not endanger enrichment programs. Bush v. Holmes, 919 So. 2d 392, 411–12 (Fla. 2006).
The majority provided one reason why Washington could not fund charters. Had it elevated its discussion of uniformity, it might have explained two more points: The State may not fund charters from any source because they undermine the uniformity of the public school system. It may, however, fund programs to supplement basic education.