Washington Law Review

Comment

The Washington State Constitution and Charter Schools: A General and Uniform Prohibition?

March 21, 2017 | 92 Wash. L. Rev. 371

Abstract: In its 2015 opinion in Washington League of Women Voters v. State, the Washington State Supreme Court invalidated Initiative 1240—which authorized the creation of charter schools. The Court considered two issues on appeal: (1) that the charter schools unconstitutionally diverted common school funds to non-common schools; and (2) that the charter schools violated article IX, section 2 requiring the legislature to establish a "general and uniform system of common schools." The Court resolved the case on the common school fund issue and did not reach the "general and uniform" challenge. In its slip opinion, the Court had included a footnote explaining that the charter schools under Initiative 1240 also violated the uniformity of the common school system. After denying the State’s petition for reconsideration, the Court issued an amended opinion omitting the footnote. Thus, the import of the article IX uniformity mandate on charter schools remains unsettled.

In response to the Court’s opinion in League of Women Voters invalidating Initiative 1240, the Washington State Legislature passed the Charter Public School Act (the CPSA). The CPSA establishes a system of charter schools outside the common school system. Because the Washington State Supreme Court has not yet considered a challenge to charter schools under the article IX "general and uniform mandate," it is unclear whether charter schools—which are relatively free from regulation and focused on providing alternative and varied learning experiences—can fit within a general and uniform system of public schools.

This Comment argues that the uniformity requirement in article IX, section 2 of the Washington State Constitution requires the legislature to establish a uniform system of laws by which the public schools are administered. Although cases interpreting the article IX uniformity mandate emphasize the substantive uniformity of the schools themselves, the text of the Constitution, the structure of the public school system, and interpretations advanced in other contexts support a procedure-based interpretation. Because a procedurally uniform system does not necessarily require identical schools, this Comment argues that the charter school system established under the CPSA fits within the general and uniform system of public schools.

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