Are charter schools unconstitutional?

As millions of American students, including 840,000 in Minnesota, headed back to public schools a few weeks ago, a ruling by the Supreme Court in the state of Washington outlawing charter schools in that state sent shock waves throughout the nation's educational establishment. The reverberations could shake education in Minnesota, too.

In early September, on a 6-3 vote, the judges in Washington agreed with the charter school challengers — a group including the League of Women Voters in that state, the public school teachers union and some parents — holding that the charter school system devised there three years ago violates the state constitution.

The court reasoned in League of Women Voters vs. State of Washington that charter schools in Washington, created by a voter-inspired initiative in 2012, are incompatible with a provision of the state constitution that requires the use of public funding for "common schools," a term referring to the K-12 public school system.

The majority of the court held that the charters — independent bodies created largely by parents and other supporters — run afoul of the state constitutional requirement because they receive public funding with no oversight by locally elected officials. This arrangement, the majority concluded, constitutes an impermissible diversion of taxpayer dollars from public schools — a "shift" [of] public school funding from existing common schools to charter schools.

The constitutional gravamen of the Washington system is that public funds are being expended without supervision from elected officials in the charter school system. That issue conflicts with the constitutional requirement for using taxpayer dollars to fund public education in that state and, for that matter, in nearly all other states as well. Local control through elected officials and public funding are intertwined; unelected charter school boards don't measure up under the Washington constitution.

The decision comes at a time when the Washington public schools are, to say the least, beleaguered. The state is under a court mandate to provide a new system for funding K-12 schools and is being fined $100,000 per day by a judge overseeing that litigation. Meanwhile, teachers in Seattle, the state's largest school district, went on strike for a week at the beginning of the school year, closing down public schools in that community before a settlement was reached giving teachers a 9.5 percent pay hike over three years, coupled with longer school days.

The judges gave Washington a 20-day grace period to come up with a permissible program for charter schools. The decision will have slight practical effect because, since its inception in 2012, the Washington charter school movement has been small, with only nine schools. But it could block establishment of more charters in the state — and serve as a legal precedent for challenging charter school arrangements around the country, including here in Minnesota.

Charter school advocates and adversaries here are taking a close look at the decision. Minnesota is ground zero for the movement. Charter schools began here in 1992, two decades before they reached Washington, under the auspices of legislation led by state Sen. Ember Reichgott Junge, who has gone on to become a bestselling author with a book describing the uphill battle to create the charter schools, titled, appropriately, "Zero Chance of Passage."

Since then, Minnesota has reached a level of 157 charter schools, enrolling 40,000 K-12 students last month. They are, like the Washington schools, governed by independent boards, usually parents and some faculty and staff, who volunteer for the posts and are not subject to scrutiny or review by the public. Yet, like the Washington schools, they are financed by public funds, drawn from state coffers.

The Washington case could be pointed to as a precedent on which to challenge charter schools in Minnesota. The state Constitution here has one provision dealing with public school education — Article XIII, Section 1. It states that because stability in a "republican form of government depends mainly upon the intelligence of the people," the Legislature is required to establish a "general and uniform system of public education," using public funds to create "a thorough and efficient system of public schools throughout the state."

The Minnesota Supreme Court in a 1993 case, Skeen vs. State, allowed creation of a "fundamental right" for Minnesotans to a "general and uniform system of education." But it ruled that while the state is required to fund "adequate" education, it is not obligated to go beyond that modest level.

What this means is that public education for grades K-12 in Minnesota is constitutionally required to be state-funded at a sufficient level to provide basic, but not elaborate, schooling for the residents in the state. While the Constitution makes no mention of charter schools, the rationale relied on in the Washington case could equally, and perhaps easily, be brought to bear here.

The terminology in the respective state constitutions in Washington and Minnesota differ. In Washington, the constitution calls for establishment of a "general and uniform system" of the public schools, and for state funding to be "exclusively provided" to them. The latter clause, the exclusivity provision, underlies the ruling of the Washington case, as the judges reasoned that public funds should not be expended without oversight by elected officials, which charter schools lack.

The Minnesota Constitution's language calls for the establishment of a "general and uniform system of public education," but does not have the exclusivity clause. However, the parallel "general and uniform" language, mandating in both states uniformity in public education, could make the Washington reasoning applicable in Minnesota as well.

Many public school teachers, their unions and some parents who support the public school system would not mind if that were to occur. Many feel that, as the Washington court reasoned, charter schools undermine the public school system. They are troubled by the diversion of public funding — the "shift" of taxpayer money, in the words of the Washington court, from the control of elected officials, representing the populace, to parents and faculty, who are unrestricted by such oversight. Critics also insist that charter schools diminish the resources available to the public school system, along with its bases of support among the general public.

Charter schools, to be sure, offer some advantages. They can be effective for those students who are not well-suited for conventional education or academic environments, including some members of ethnic and racial minorities. They also provide parents and faculty more flexibility in designing programs that break the mold of traditional education.

But they have their disadvantages as well. Teachers and staff generally receive lower pay and fewer benefits than do teachers in the public school system, and their sometimes inferior working conditions have led to a drive for unionization in those charter schools. A pair of charters in St. Paul, a German immersion school and the Hmong-based Community School of Excellence, have achieved union status for teachers, and others may follow.

Moreover, a serious question has arisen about the quality of education in charter schools. A study by this newspaper earlier this year revealed that most charter schools are not achieving adequate performance compared to public schools in test scores. A number of charters have faltered, including the Mill City High School in downtown Minneapolis, which closed in September after only two weeks in operation. Others have run into regulatory problems, such as the School of Excellence, which is being investigated by the Department of Education for improprieties on a student field trip to Thailand two years ago.

Whether a Washington-type charter school challenge will be mounted here remains to be seen. But Minnesota, the national home of the charter movement, must cast a wary eye to the west.

Marshall H. Tanick is a Twin Cities attorney whose practice includes education law.