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A State’s Common Problem With ‘Common Schools’

teacher working with elementary-aged students writing at a table
photo courtesy the U.S. Department of Education

Taxpayers expect - in many cases, even demand - to pay for quality education for children in their state or district. But do taxpayers care, or should they, whether those schools are “common,” or even publicly run?

I don’t think so. Yet a lot of people, many of whom are employed in the public education systems, strongly disagree.

There are many ways to provide a quality, publicly financed education. One is the traditional local school system, run by school boards that are typically elected in low-turnout balloting, and which are often dominated by professional educators. Another is through charter schools, a modern innovation with many permutations, but whose common theme is public funding outside the control of the traditional public school boards, with whom they operate in parallel. Yet another is a voucher system, in which the state hands money over to parents to spend in the school they believe best fits their children’s needs.

Some states offer one of these options. Some offer several. A lot of us have our own opinions about the merits and drawbacks of each approach. One thing is pretty certain, however: Conditions change over time, and so do public views about education policy. And, for that matter, all sorts of other public policy as well.

That is why it is a bad idea to write specific policies, of almost any sort, into state constitutions. (Or the federal Constitution, either.) Constitutions are for expressing fundamental principles and societal goals: equality of treatment or opportunity, freedom from the repression of movement or of ideas, and the requirements for making binding agreements that may extend across generations, whether in the form of international treaties or local bond issues.

When constitutions get too specific, they hamstring our ability to adapt to changing conditions or new priorities.

We are seeing the consequences in Washington state. Washingtonians passed a referendum in 2012 that created a legal framework for charter schools. The first opened in Seattle last year, and eight more opened their doors across the state this fall. But the Friday before Labor Day weekend, the state’s Supreme Court dealt a harsh blow to charter school supporters, by ruling 6-3 that the schools do not satisfy the state constitution’s mandate that public funds be spent on “common schools.”

The people of Washington state wanted to introduce a new method of delivering publicly funded education to their state’s students. But because the state constitution demands such education be delivered in “common” schools, the relative merits of charter schools were not even at issue in the case. “Our inquiry is not concerned with the merits or demerits of charter schools,” Chief Justice Barbara Madsen wrote for the majority. The only issue was whether the new approach fit into the old box. According to the Court, it didn’t.

The main stumbling block, according to the majority, was that charter schools do not fall under local voter control. That’s more or less part of the definition of charter schools, so there is no easy fix that could make such institutions consistent with the Supreme Court’s reading of the state’s constitution. The Court did not determine what would happen to the charter schools in which students have already enrolled, instead sending the case back to the King County Superior Court and leaving administrators at those schools in limbo.

The Washington State Charter Schools Association issued a statement subsequent to the ruling, pledging to continue pursuing legal options to keep the charter schools in operation. While such determination is admirable, it is hard to see how these schools will find a way forward unless and until the state’s constitution is amended. That is exactly what happened in Georgia in a similar legal struggle over the status of charter schools.

Constitutional amendments aren’t designed to be easy, and Washington’s procedure is no exception. Either branch of the legislature may propose an amendment; the legislature must then approve either the proposal or a counterproposal by a two-thirds majority. Only then does it go before the general electorate, becoming law if a majority of voters approve. Alternately, if two-thirds or more of each branch of the legislature approves, or if a majority of all the voters in an election call for one, a constitutional convention can be held instead.

If Washington voters want to get the education delivery system they approved back in 2012, an amendment is likely their only real option. It will be a cumbersome process at best, unworkable at worst. But it is what happens when we legislate through our constitutions instead of statutes.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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