League of Women Voters of Wash. v. State

184 Wash.2d 393

355 P.3d 1131

LEAGUE OF WOMEN VOTERS OF WASHINGTON, a Washington nonprofit corporation; El Centro De La Raza, a Washington nonprofit corporation; Washington Association of School Administrators, a Washington nonprofit corporation; Washington Education Association, a Washington nonprofit corporation; Wayne Au, Ph.D., on his own behalf; Pat Braman, on her own behalf; Donna Boyer, on her own behalf and on behalf of her ininor children; and Sarah Lucas, on her own behalf and on behalf of her minor children, Appellants

v. STATE of Washington, RespondentandWashington State Charter Schools Association; League of Education Voters ; Ducere Group ; Cesar Chavez Charter School; Initiative 1240 Sponsor Tania De Sa Campos; and Matt Elisara, Respondents/Intervenors.

No. 89714–0.

Supreme Court of Washington. En Banc.

Argued Oct. 28, 2014.

Decided Sept. 4, 2015.

As Amended on Denial of Reconsideration Nov. 19, 2015.

Paul J. Lawrence, Jessica Anne Skelton, Jamie L. Lisagor, Pacifica Law Group LLP, Seattle, WA, for Appellants.

David Alan Stolier, Colleen G. Warren, Aileen B. Miller, WA Attorney General's Office, EDU, Solicitor General Division Attorney General, Attorney at Law, Rebecca R. Glasgow, Attorney General's Office, Olympia, WA, for Respondent/Cross–Appellant.

Harry J.F. Korrell III, Michele G. Radosevich, Joseph P. Hoag, Davis Wright Tremaine LLP, Seattle, WA, for Respondents Intervenors.

Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, amicus counsel for Pacific Legal Foundation.

Gregory Mann Miller, Carney Badley Spellman PS, Seattle, WA, William P. Bethke, Kutz & Bethke LLC, Lakewood, CO, amicus counsel for National Association of Charter School Authorizers.

Jeffrey Iver Tilden, Gordon Tilden Thomas & Cordell LLP, Seattle, WA, Chad A. Readler, Kenneth M. Grose, Jones Day, Columbus, OH, amicus counsel for National Alliance for Public Charter Schools, Black Alliance for Educational Options, and National Center for Special Education in Charter Schools.

Robert M. McKenna, Andrew Robert Ardinger, Orrick, Herrington & Sutcliffe LLP, Seattle, WA, amicus counsel for First Place Scholars Charter School, Excel Public Charter School, Soar Academy, Rainier Prep Public Charter School, Pride Prep Public Charter School, the Black Education Strategy Roundtable, Rep. Eric Pettigrew, Stand for Children-washington, Washington Roundtable, Technology Alliance, and Teachers United in Support of Respondents.

Opinion

MADSEN, C.J.

¶ 1 This case is a direct review of a King County Superior Court decision that found certain portions of Initiative 1240 (I–1240) (Charter School Act or Act), codified at chapter 28A.710 RCW, unconstitutional but left the remainder of the Act standing. We hold that the provisions of I–1240 that designate and treat charter schools as common schools violate article IX, section 2 of our state constitution and are void. This includes the Act's funding provisions, which attempt to tap into and shift a portion of moneys allocated for common schools to the new charter schools authorized by the Act. Because the provisions designating and funding charter schools as common schools are integral to the Act, such void provisions are not severable, and that determination is dispositive of the present case.

FACTS

¶ 2 In November 2012, Washington voters approved I–1240, codified in the Act, providing for the establishment of up to 40 charter schools within five years. Clerk's Papers (CP) at 39–78; RCW 28A.710.150(1). The Act was intended to provide parents with “more options” regarding the schooling of their children. RCW 28A.710.005(1)(f) ; see also RCW 28A.710.020(1) (new charter schools are public “common school[s] open to all children free of charge”). But the new schools came with a trade-off: the loss of local control and local accountability. Charter schools must provide a basic education, similar to traditional public schools, including instruction in the essential academic learning requirements, which are developed by the superintendent of public instruction. See RCW 28A.710.040(2)(b) ; former RCW 28A.655.070(1)-(2) (2013). However, under the Act's provisions, charter schools “free teachers and principals from burdensome regulations that limit other public schools” thereby giving charter schools “the flexibility to innovate” regarding staffing and curriculum. RCW 28A.710.005(1)(g). Charter schools are exempt from many state rules. 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,” charter 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 ... in areas such as scheduling, personnel, funding, and educational programs.”RCW 28A.710.040(3).

¶ 3 Under the Act, charter schools are devoid of local control from their inception to their daily operation.¹ Charter schools can be approved in two ways. First, the Washington Charter School Commission, which is an “independent state agency” established by the Act and made up of nine appointed members, has the power to establish charter schools anywhere in the State. See RCW 28A.710.070(1, 2), .080(1).² Second, school districts may apply to the Washington State Board of Education for permission to authorize charter schools. RCW 28A.710.080(2). The commission and approved school districts (referred to as “charter school authorizers”) solicit charter applications, approve or deny applications, and negotiate and execute charter contracts. RCW 28A.710.100(1). Charter school authorizers also monitor performance and legal compliance of charter schools, RCW 28A.710.180(1), but such oversight cannot “unduly inhibit the autonomy granted to charter schools,” RCW 28A.710.180(2), and such oversight must also be consistent with the principles and standards developed by another private organization, the National Association of Charter School Authorizers. RCW 28A.710.100(3).³

¶ 4 As for daily operation, charter schools are not governed by elected local school boards. Instead, charter schools are operated by a “charter school board,” RCW 28A.710.020(3), which is “appointed or selected under the terms of a charter application to manage and operate the charter school.” RCW 28A.710.010(6). The board is responsible for functions typically handled by an elected school board, including hiring, managing, and discharging employees; receiving and disbursing funds; entering contracts; and determining enrollment numbers. RCW 28A.710.030(1), .050(5).

¶ 5 As for funding, the Act requires the superintendent to apportion funds to charter schools on the same basis as public school districts. See RCW 28A.710.220, .230(1). Such disbursements include basic education moneys appropriated by the legislature in the biennial operating budget for the use of common schools and moneys from the common school construction fund. See RCW 28A.710.220(2), .230(1); RCW 28A.150.380(1), .250(1).

¶ 6 Alarmed over the lack of local accountability and fiscal impacts of the Act, appellants⁴ sued the State of Washington in King County Superior Court, seeking a declaratory judgment that the Act is unconstitutional.⁵ Several supporters of charter schools intervened.⁶ All three parties moved for summary judgment, and the trial court granted summary judgment to the State and intervenors on all issues but one. The trial court held that charter schools are not “common schools” under article IX of Washington's Constitution and, therefore, the common school construction fund could not be appropriated to charter schools. CP at 1043, 1045. The trial court found, however, that the provisions permitting such appropriations were severable. The trial court concluded that the Act was otherwise constitutional. All parties sought direct review, which we granted.

ANALYSIS

¶ 7 We begin by noting what this case is not about. Our inquiry is not concerned with the merits or demerits of charter schools. Whether charter schools would enhance our state's public school system or appropriately address perceived shortcomings of that system are issues for the legislature and the voters.⁷ The issue for this court is what are the requirements of the constitution. Cf. Gerberding v. Munro, 134 Wash.2d 188, 211, 949 P.2d 1366 (1998) (“we are not swayed in our analysis of [the term limits initiative] by the policy merits or demerits of term limits for officeholders”). Accordingly, “[o]ur review here is limited to the issue of whether the voters acted in compliance with our state's constitution in expressing their collective will.” Id. “[W]hile initiative measures are reflective of the reserved power of the people to legislate, the people in their legislative capacity remain subject to the mandates of the Constitution.” Id. at 196, 949 P.2d 1366 (citation omitted). Moreover, we have made clear that the initiative process is limited in scope to subject matter that is legislative in nature, that an initiative attempting to achieve something not within its power is invalid, and that the initiative power may not be used to amend the constitution. Id. at 210 n. 11, 949 P.2d 1366.

Charter Schools Are Not Common Schools

¶ 8 This case turns on the language of article IX, section 2 of our state constitution and this court's case law addressing that provision. See Tunstall v. Bergeson, 141 Wash.2d 201, 220–21, 5 P.3d 691 (2000) (“the court's focus when addressing constitutional facial challenges is on whether the statute's language violates the constitution”). Article IX, section 2 of the Washington Constitution provides:

The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for

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