What's Next In This Epic Battle for the Charter School Movement?

A pro-charter rally in Olympia, Washington's State Capital

Charter school advocates and their supporters in Washington State are no doubt celebrating a recent court decision that upholds the constitutionality of that state's charter school law, following state policy changes enacted in 2016. The court decision comes more than a year after a 2015 decision by the state Supreme Court that charter schools violated the Washington state constitution.

The Feb. 17 ruling by a state Superior Court judge represents a victory for the Bill and Melinda Gates Foundation, as well as other local pro-charter funders like the Bezos Family Foundation. Gates has invested heavily over the years in an effort to bring charter schools to the Evergreen State, which has been slower than many other states to embrace the charter movement. Other deep-pocketed donors in this fight include not only Mike and Jackie Bezos, but Steve Ballmer, Paul Allen and some out-of-staters like Alice Walton and Reed Hastings—all of whom have made campaign contributions to advance charters in Washington State. 

In fact, if you want an example of the role of wealthy donors in advancing charters using both philanthropic and political giving, Washington may now be the best case study around, as Joanne Barkan has documented. Most recently, these donors sought to knock off some of the state Supreme Court justices during the 2016 election who ruled against charters. 

And this battle is hardly over. Plaintiffs are likely to appeal this latest ruling, which did not resolve all of the legal challenges to the state charter school law, narrowly passed by Washington voters in 2012, more than 20 years after Minnesota passed the nation's first charter law.

In the fall of 2015, as a new school year was just getting started, things were not looking so good for Washington state charters. At that time, the state Supreme Court ruled that charter schools were not "common schools" as defined by the state constitution because they lacked elected governing boards and were therefore not subject to local voter control, rendering them unconstitutional. 

In the latest court decision, issued February 17, Judge John Chun wrote that charter schools may not fit the state definition of common schools, but that does not automatically make them unconstitutional, according to a report by the pro-reform education news site The 74. He noted that there are other education programs in the state, such as youth offender programs and tribal compact schools, which are considered constitutional despite differing from the common school model. 

Chun further noted that the Supreme Court in 2015 ruled that Washington state charters were unconstitutional because they diverted money away from traditional public schools, but that state legislative changes enacted in 2016 addressed this problem. State lawmakers in 2016 adopted legislation to fund charter schools through the state Opportunity Pathways Account, which is funded in part by state lottery revenue.

This arrangement may satisfy the courts for now, but it leaves open questions of what the future holds as the state's charter school program expands in both number of schools and number of students served, or how the state will respond in times of stagnant or reduced lottery revenue—a challenge that has ensnared many a state that relies on such revenue to fund public schools. Judge Chun conceded in his ruling that these issues could arise again if the mechanism for funding charter schools changes, according to The 74.

Clearly, this debate is not over, so look for funding to continue from wealthy donors intent on winning a final victory in what's become an epic battleground for the charter school movement. Bill Gates and the Gates Foundation are the most deeply invested here, by far. Gates has sunk millions of dollars in political contributions into this fight, while his foundation has spent many millions more to support the establishment of charter schools in its home state. Most notably, it's given over $13 million to the  Washington State Charter Schools Association over the past few years, according to the foundation's grants database. 

Plaintiffs challenging the state's charter school law include La Raza, the state's League of Women Voters, and the Washington Education Association, the state's largest teachers unions. These and other opponents of deep-pocketed charter school advocates may face similar battles in state capitals and courtrooms across the country.

The recent confirmation of Betsy DeVos, a staunch advocate of charters and private school vouchers, as secretary of education under President Donald Trump raised the stakes for organizations who wish to slow the growth of the charter school movement, which they see as coming at the expense of traditional public schools. DeVos appears interested in rolling back the reach of the federal education department, which could make states the key battlegrounds for education reform issues.