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Fate of Washington's Charter School Law to Be Decided, Again, by State Supreme Court

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Washington state's beleaguered charter school law goes before state's high court Thursday. It's the second time in four years that the Washington Supreme Court will consider the constitutionality of the law.

Passed by voter referendum in 2012, the law has been caught in the crosshairs of national charter school advocates and the state's teachers' union ever since.

The Washington Education Association, along with the Washington League of Women Voters and several other groups, challenged the voter-approved charter law and the state supreme court ruled in their favor in 2015.

It was the first time in the country that a state supreme court ruled wholesale against a charter school law.

The ruling was a major blow to charter advocates. Advocates and philanthropic supporters had invested heavily in time and money to protect the state's nascent charter sector. Washington state was a late adopter of charter schools and many advocates saw the state's charter law as among the most evolved in the country—one that avoids many of the pitfalls that have arisen in states that legalized charter schools early on.

Additionally, some charter advocates worried at the time that the legal fight over the constitutionality of charter funding in Washington could potentially provide a template for opponents to challenge laws in other states. So far, Washington's ruling hasn't led to a cascade of new lawsuits over funding, but it was enough to spook charter advocates. The National Alliance for Public Charter Schools launched a legal action and defense fund last year to deal precisely with this type of litigation.

In the broader, national context, the state Supreme Court hearing on Thursday comes at a potentially politically precarious time for charter school advocates. Some fear that President Donald Trump and Education Secretary Betsy DeVos' embrace of school choice is eroding support for charter schools among Democrats ahead of midterm elections.

Perhaps the most striking example of this was in Colorado last month at a Democratic party assembly where delegates booed the head of the Colorado chapter for Democrats for Education Reform, before voting to demand that the group remove the word "democrat" from its name.

In an effort to defend their turf in heavily Democratic California, charter school advocates are spending big to insure they have an ally in the governor's office after November's election. They're backing former Los Angeles Mayor Antonio Villaraigosa in the state's Democratic primaries next month. Charter backers are still smarting from their defeat to raise the cap on charter schools in Massachusetts in the 2016 election.

Washington Charter Schools' Ongoing Legal Saga

In its 2015 ruling, the Washington Supreme Court decided that charters did not qualify as "common" schools—basically, public schools—because they are not overseen by locally elected school boards and, therefore, were not eligible to draw money from the state's general fund.

The ruling came just days into the school year, when several charter schools had already opened and were educating students. The schools scrambled to find ways to remain open while their political supporters put forward a legislative fix to the law.

A bill that changed the funding source for charter schools and subjected them to more regulations and elected oversight barely squeezed out of the legislature the following spring. Several state lawmakers were concerned that the revised law would have trouble passing constitutional muster should it be challenged again. And as a sign of the shaky political ground the law still stood on, Gov. Jay Inslee refused to sign the new legislation, allowing the bill to go into law without his signature.

Within a week, the WEA announced plans to file a new lawsuit on the grounds that the new law still did not require enough oversight from publicly elected officials and still diverted money from district schools, even though it's drawing from a separate pool of money. But a lower court judge ruled that the law was constitutional in early 2017. 

Last time around, it took the Washington Supreme Court nearly a year to issue a decision in the case after hearing oral arguments. 

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Photo: Students and other charter school advocates rally in 2015 at the Capitol in Olympia, Wash. The rally was held by "Act Now for Washington Students," with the goal of halting the closure of any charter schools that have already opened. —Rachel La Corte/AP

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