Look again at what the voters approved. This initiative allows up to 40 public charter schools in a five-year period. No more than eight could be approved in a single year. Only nonprofit corporations -- no sectarian or religious groups -- will be granted charters.
The Board of Education, an independent state agency with long-standing responsibilities that include setting standards for high school graduation, basic education, and school accountability, is given substantial new responsibility for implementation of the charter school law. It's likely the first schools won't open until 2014, given the complexity of the rule-making involved.
It's a carefully structured approach, reflecting two decades of experience in other states. I-1240 is about as radical as an altar guild coffee hour.
Opponents, nonetheless, may yet attempt to have the measure set aside. Superintendent of Public Instruction Randy Dorn believes the initiative violates the state constitution's stipulation that his office "shall have supervision over all matters pertaining to public schools."
The initiative established the nine-member Washington Charter School Commission as an independent agency to oversee the charter schools. Dorn believes SPI should be in charge. Given the similar independence of the state board of education, on which Dorn serves as one of 16 members, the argument seems strained. If the board of education passes muster, so too should the charter commission.
During the campaign, Seattle attorney Hugh Spitzer raised a pair of additional constitutional issues. In a blog post, he contended that I-1240 would be vulnerable to a constitutional challenge because it directed money from the "common school fund" to public charter schools outside the control of the local school board. Further, he argued that the initiative's provision allowing the nonprofit operators of public charter schools to rent or purchase public property at below fair market value violates the constitutional ban of gifts of public funds.
Jana Carlisle, executive director of the Partnership for Learning, which supports charter schools, says the challenge was anticipated. The initiative had a thorough legal review, by private attorneys and the Attorney General's office.
"We believe it's constitutional," she says. "Any challenge will have no merit."
That, unfortunately, does not mean that a prolonged legal challenge will do no harm. While Dorn may be appropriately sensitive to a perceived encroachment on his authority, a lawsuit would be a disproportionate response, creating uncertainty and making Washington less attractive to top public charter school operators.
The education establishment would likely support a lawsuit. The usual suspects opposed I-1240: teachers' unions; statewide associations representing school boards, principals, and superintendents; the state PTA; the League of Women Voters; the state labor council, and so on. When it comes to education reform, a number of folks on the list could be charter members of the "We Hope for No Change Coalition."
Dorn's spokesman says the superintendent has not reached a final decision about the lawsuit. The state Attorney General is required to defend voter-approved initiatives, so if SPI chooses to challenge, outside counsel will have to be retained. A spokesman for SPI says the agency has requested a meeting to explore alternatives. Right now, Dorn's desire is to go to court.
He has another alternative. He could work with public charter school supporters to amend the measure in the Legislature. In that way, he can demonstrate his willingness to support sensible education reform in a state that desperately needs it. And he would show the education establishment that the state's top educator remains constructively engaged in the evolution of public charter schools here.
Those who want him to file suit risk marginalizing themselves as reflexive obstructionists. Their intransigence raises the question: Are they opposed because they believe the schools will fail, or because they fear they might succeed?
Richard S. Davis is president of the Washington Research Council. His email address is email@example.com
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