This guest post is by Hugh Spitzer, who teaches State Constitutional Law and Local Government Law at the University of Washington School of Law.

Initiative 1240 will again present voters with the chance to approve a charter school program for Washington State, a concept they have rejected three times in recent history. But regardless of the pros and cons of charter schools, this specific initiative contains basic state constitutional defects that could disappoint the initiative’s supporters and voters if the measure passes.

Initiative 1240 would allow a limited number of charter schools to be supported by distributions from the State’s Common School Fund. The charter schools would be selected through a process supervised by the State Board of Education, would be deemed “public, common schools,” and would be open to any students. At the same time, they would be operated by private nonprofit corporations that are governed by independent, self-appointed or member-appointed boards. The charter school boards would be subject to the open public meetings act and the public records law, and would be subject to certain performance standards that apply to all schools. But they would be exempt from the bulk of the curriculum and other requirements that apply to public schools generally.

The initiative obscures whether the non-profit charter school corporations would be truly public or private, and this will lead to legal uncertainty and litigation. Most important, Initiative 1240 contains defects that run afoul of at least two state constitutional provisions.

In 1909, Washington’s supreme court held that money from the Common School Fund may be sent to “common schools” but to no other schools—including other publicly-operated schools.

In that instance, the legislature had approved special public schools attached to each of the state’s teacher training colleges. The colleges would select the staff of the special schools and would govern their operation, giving teachers-in-training the opportunity to gain skills under the supervision of experienced master teachers. Pupils selected to attend special schools would bring their State Common School Fund allocations with them.

The Cheney School District objected to students and money being diverted to the teacher college that is now Eastern Washington State University, successfully challenging the training school system on the grounds that the special schools were not “common schools” as described in the Washington Constitution.

The State Supreme Court wrote that the Constitution’s drafters meant for Common School Fund money to be applied exclusively to schools that were uniform in character and controlled by local school boards and county superintendents who picked the principals and teachers. Justice Stephen Chadwick wrote that a common school must not only be open to all children but must also be “subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to selected qualified teachers, with powers to discharge them if they are incompetent.” Justice Chadwick pointedly added that the Legislature’s calling a school a “common school” didn’t make it one.

The drafters of the charter school initiative are certainly aware of the 1909 case and have tried to accommodate certain aspects of the ruling. But the proposal is still constitutionally flawed because Common School Fund money would be diverted to schools governed by privately-selected boards rather than elected school boards, and because the charter schools would not be subject to the uniform curriculum requirements that were of great importance to the Supreme Court.

The other constitutional defect in the proposal is a provision granting the non-profit charter school corporations the right to purchase or rent school district and certain other public property at below fair market value. Unless the courts ruled that these corporations, with their privately-appointed boards, were actually governmental entities, the below-market sale or lease of public property to these charter schools would violate the State Constitution’s ban on gifts of public funds to the private sector.

The charter school concept needs more thought and legal refinement before it is ready to pass constitutional muster in Washington State. Until charter schools are subject to much stronger control by locally-elected school boards, they will be subject to a successful legal challenge.