Editor’s Note: This September, Washington state’s Supreme Court ruled that taxpayer-funded charter schools are unconstitutional. Preston Green, the John and Carla Klein Professor of Urban Education in the Neag School and an expert on charter school law, penned this piece, summarizing the ruling and its implications:

In 2014, there were more than 6,400 charter schools serving more than 2.5 million students. Charter schools are commonly defined as public schools that receive greater freedom in their operations, while being held accountable for student achievement.

Legal scholars have countered that charter schools are really hybrid institutions that possess both private and public characteristics. For instance, charter schools are like public schools in that they are funded by state and local taxes, cannot discriminate on the basis of race or religion, and cannot charge tuition. By contrast, charter schools are similar to private schools in that they are “schools of choice” and are run by independent school boards.

Because of the hybrid nature of charter schools, courts have a difficult time determining whether they are public or private. Indeed, charter schools have argued that they are private in order to evade state and federal laws that they do not like.

One question that courts have had to address is whether charter schools are too privately governed to be eligible for funding under state constitutional law. This question is significant because 18 charter school states have constitutional provisions that prohibit such funding.

“Charter schools have argued that they are private in order to evade state and federal laws they do not like.”

—Preston Green, John and Carla Klein Professor
of Urban Education, Neag School of Education

Courts in California and Michigan rejected state constitutional challenges that charter schools were too privately governed to be eligible for public funding. In both cases, the courts observed that state agencies and charter school authorizers exercised control over charter schools from the approval of applications to decisions to revoke charters. Because of this authority, the courts found that they were public schools even though private boards of directors operated them.

However, in League of Women Voters v. State, the Washington Supreme Court has just ruled that charter schools are not “common” or public schools under the state constitution. This is the first case in which a state supreme court has ruled in this manner.

The court based its ruling on a 1909 decision in which it defined a common school, in part, as being under the “complete control” of the “qualified voters of the school district.” Such control included the power to elect members of school boards as well as the power to discharge them if the voters were so inclined.

Because appointed boards or nonprofit organizations ran the state’s charter schools, the court ruled in the League of Women Voters case that charter schools could not qualify as common schools under the state constitution. Because charter schools were not common schools, the court further concluded state could not use the “common school fund” to fund charter schools.

League of Women Voters is significant because so many charter school states have constitutional provisions that are similar to that of Washington’s. While it is impossible to determine how other courts would interpret their constitutional provisions in light of League of Women Voters, it is safe to say that there will be more state constitutional challenges in the future.