El Centro de la Raza v. State , 428 P.3d 1143 ( 2018 )

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CHIEFjusnce
SUSAN L. CARLSON
SUPREME OOURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
EL CENTRO DE LA RAZA,a Washington
nonprofit corporation; LEAGUE OF No. 94269-2
WOMEN VOTERS OF WASHINGTON,a
Washington nonprofit corporation;
WASHINGTON ASSOCIATION OF
SCHOOL ADMINISTRATORS,a
Washington nonprofit corporation;
WASHINGTON EDUCATION
ASSOCIATION, a Washington nonprofit
corporation; INTERNATIONAL UNION
OF OPERATING ENGEvDEERS 609;
AEROSPACE MACHINISTS UNION,
lAM&AW DL 751; WASHINGTON EN BANC
STATE LABOR COUNCIL, AFL-CIO;
UNITED FOOD AND COMMERCIAL
WORKERS UNION 21, WASHINGTON
FEDERATION OF STATE EMPLOYEES;
AMERICAN FEDERATION OF
TEACHERS WASHINGTON;
TEAMSTERS JOINT COUNCIL NO. 28;
WAYNE AU,PH.D., on his own behalf and
on behalf of his minor child, PAT
BRAMAN,on her own behalf; and DONNA
BOYER,on her own behalf and on behalf
of her minor children.
0€T 2 5 2018
Appellants, Filed:
V.
El Centra de la Raza, et al. v. State, No. 94269-2
STATE OF WASHINGTON,
Respondent,
and
ROLAND D. BRADLEY,on his own
behalf and on behalf of his minor child;
GUSTAVO ALEJANDRO CUEVA,on his
own behalf and on behalf of his minor child;
GENEVIEVE FIORINO, on her own
behalf and on behalf and on behalf of her
minor children; NATALIE HESTER;
DELANAS D. JOHNSON,on his own
behalf and on behalf of his minor child;
GAHYUN "SUNNY" LEE,on her own
behalf and on behalf of her minor children;
JENNIFER DIANE LEE, on her own
behalf and on behalf of her minor child;
HEIDI A.R. MITCHELL and SCOTT D.
MITCHELL, on their own behalf and on
behalf oftheir minor child; EDUARDO
PACHECO,on his own behalf and on
behalf of his minor child; DARCELINA
JEAN SOLORIA, on her own behalf and
on behalf of her minor child; CRYSTAL
SWAFFER,on her own behalf and on
behalf of her minor children; SHIRLINE
SHIRRELL WILSON,on her own behalf
and on behalf of her minor child;
INNOVATION SCHOOLS d/b/a
WILLOW PUBLIC SCHOOL;
SPOKANE INTERNATIONAL
ACADEMY;EXCEL PUBLIC CHARTER
SCHOOLS; SOAR ACADEMY;PRIDE
PREP PUBLIC CHARTER SCHOOL;
RAINIER PREP; GREEN DOT PUBLIC
SCHOOLS WASHINGTON
WASHINGTON STATE CHARTER
El Centra de la Raza, et al. v. State, No. 94269-2
SCHOOLS ASSOCIATION, )
)
Respondent-Intervenors. )
^ )
YU, J. — This case concerns the latest constitutional challenge to charter
schools in our state. In 2015, this court held the charter school system created by
Initiative 1240(1-1240)(Charter School Act or Act) was unconstitutional primarily
due to the funding structure. League of Women Voters of Wash. v. State, 184
Wn.2d 393, 413, 355 P.3d 1131 (2015). The following year, the legislature adopted
a modified version of the Charter School Act that attempted to cure its
constitutional deficiencies. LAWS OF 2016, ch. 241.
At the outset, we are aware ofthe deep-seated conflicting opinions regarding
charter schools. While each side ofthe discussion may have legitimate points of
view, it is not the province ofthis court to express favor or disfavor ofthe
legislature's policy decision to create charter schools. Rather, our limited role is to
determine whether the enacted legislation complies with the requirements of our
state constitution. We conclude that its only unconstitutional provision is severable,
and thus we affirm the trial court in part and hold that the remainder ofthe Charter
School Act is constitutional on its face.
El Centra de la Raza, et al. v. State, No. 94269-2
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Washington voters approved 1-1240, codified at chapter 28A.710
RCW,which created a public charter school system. Laws OF 2013, ch. 2. In
League of Women Voters, this court held that 1-1240 violated article IX, section 2 of
the Washington Constitution. 184 Wn.2d at 413. We concluded that 1-1240
incorrectly designated charter schools as common schools and then impermissibly
supported them with money allocated for common schools. Id. at 406-07. Because
the unconstitutional provisions of1-1240 were not severable, the court did not reach
the other challenges raised by the plaintiffs. M at 413.
In 2016, the legislature enacted the Charter School Act with amendments
designed to cure its constitutional defects. LAWS OF 2016, ch. 241. The Act
provides for the establishment of up to 40 charter schools, which are designated as
public schools that are open to all children for free "as an alternative to traditional
common schools." RCW 28A.710.150(1),.020(l)(b).
Plaintiffs' brought suit in King County Superior Court, seeking a declaratory
judgment that the Act is facially unconstitutional. A number of charter school
'El Centre de la Raza, League of Women Voters of Washington, Washington Association
of School Administrators, Washington Education Association, International Union of Operating
Engineers Local 609, Aerospace Machinists Union,lAM&AW DL 751, Washington State Lahor
Council, AFL-CIO, United Food and Commercial Workers Union 21, Washington Federation of
State Employees, American Federation of Teachers Washington, Teamsters Joint Council No. 28,
Wayne Au,PhD,Pat Braman, and Donna Boyer.
El Centra de la Raza, et al. v. State, No. 94269-2
supporters joined the suit as intervenor-respondents.^ On cross motions for
summary judgment, the trial court concluded that the Act did not on its face violate
the Washington Constitution.^ Clerk's Papers(CP)at 3744-69. Plaintiffs sought
direct review from this court pursuant to RAP 4.2(a), and we granted review. We
accepted seven amicus briefs supporting the State and intervenor-respondents.
ISSUES'^
A. Whether the Act violates article IX, section 2's "general and uniform"
requirement?
B. Whether the Act violates article III, section 22 by delegating the
superintendent's supervisory role to the charter school commission?
C. Whether the Act violates article IX, section 2 by diverting restricted state
funds to support charter schools?
D. Whether the Act violates article II, section 37 by revising the state collective
bargaining laws and the Basic Education Act of 1977, RCW 28A.150.200,
without setting forth those revisions and amendments in full?
^ There are 20 intervenor-respondents. They describe themselves as "a mixed group of
charter public school students and parents; charter public schools themselves; a charter public
school management organization; and a statewide nonprofit organization." Clerk's Papers(CP) at
52.
^ Prior to summary judgment, the trial court dismissed two of plaintiffs' claims on
justiciability grounds. CP at 193-206.
Appellants also argued that the Act interferes with the State's paramount duty to amply
fund education, as mandated by McCleary v. State, 173 Wn.2d 477, 269 P.3d 227(2012). This
court has since determined the State fulfilled its funding obligation, and so appellants' claim is
now moot. Order, McCleary v. State, No. 84362-7, at 4(Wash. June 7, 2018).
El Centra de la Raza, et al. v. State, No. 94269-2
ANALYSIS
The Charter School Act represents a policy choice by the legislature to make
charter schools available to Washington students. We have previously recognized
that the legislature "provide[s] the best forum for addressing the difficult policy
questions inherent in forming the details of an education system." McCleary v.
State, 173 Wn.2d 477, 517, 269 P.3d 227(2012). While the appellants may
disagree with the legislature's policy decision in this instance, our review is limited
to whether the Act violates the state constitution.
This case involves issues of statutory construction and constitutional
questions, and thus the standard of review is de novo. City ofRedmond v. Moore,
151 Wn.2d 664, 668,91 P.3d 875 (2004). We look at the issues as if for the first
time and therefore show no deference to the trial court's decision.
A. The Act does not violate article IX, section 2's general and uniform system of
public schools
Article IX, section 2 of the Washington Constitution sets the
framework for the state's public school system. It states in relevant part:
The legislature shall provide for a general and uniform system of
public schools. The public school system shall include common
schools, and such high schools, normal schools, and technical schools
as may hereafter be established.
Const, art. IX, § 2. Accordingly, the constitution requires the legislature to
provide a general and uniform system of public schools that includes common
El Centra de la Raza, et al. v. State, No. 94269-2
schools. However, as we have previously held, the system is not limited to
common schools because "art. [IX], § 2 provides for something considerably more
extensive." Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 522, 585 P.2d 71(1978). It also authorizes, but does not require, the legislature to create non-
common-schools, such as high schools, normal schools,^ or technical schools. At
issue in this case is whether this provision in article IX, section 2 places any
restrictions on the legislature's power to create non-common-schools.
Appellants argue this constitutional provision has two relevant limitations
that the Act violates. First, they claim article IX, section 2 empowers the
legislature to create only non-common public schools similar to those enumerated
in the provision (high schools, normal schools, or technical schools). Because
charter schools are not similar to the type of schools on the list, appellants reason
the legislature does not have the authority to establish them. Second, appellants
contend even if article IX, section 2 does not impose restrictions on the type of
schools the legislature can create, it nevertheless requires that every school
conform to the requirements ofthe "general and uniform system of public
schools." Appellants argue charter schools do not.
At statehood, normal schools.provided training and certification for teachers.
El Centra de la Raza, et al. v. State, No. 94269-2
1. Article IX, section 2 does not limit the legislature's authority to create
non-common-schools
Appellants do not argue that article IX, section 2 contains an
exhiaustive list of all the non-common-schools the legislature may create, nor
is there any limiting language in the provision to support such an
interpretation. However, appellants do argue that high schools, normal
schools, and technical schools represent the type of non-common-schools that
the legislature can create. Appellants reason that at the time the constitution
was written, these schools served a specialized population or taught a
specialized educational program. Accordingly, appellants ask us to interpret
article IX, section 2 as conferring to the legislature the power to create only
specialized non-common-schools.
We have never interpreted article IX, section 2 to limit the legislature's
ability to create non-common-schools. In one of our earliest cases interpreting the
provision, this court endorsed the power ofthe legislature to create a non-common-
school that did not serve a specialized student population or teach a specialized
curriculum. Sch. Dist. No. 20 v. Bryan, 51 Wash. 498, 506, 99 P. 28 (1909).
Legislation passed shortly after statehood established a model training school
embedded in each normal school. Senior teachers-in-training at the normal school
acquired "actual practice" teaching students sent from the nearby common school.
El Centra de la Raza, et al. v. State, No. 94269-2
Laws of 1893, ch. 107, § 12. Though a model school could refuse to accept
students "by reason of incorrigibility, or mental defects," enrollment was not
otherwise limited to a specialized population. LAWS OF 1907, ch. 97, § 2.
While this court determined the legislation was unconstitutional, its decision
rested on the schools' funding source and not their program of education or student
body. Bryan, 51 Wash, at 506. These model training schools were unconstitutional
because the legislature improperly designated them as common schools and funded
them with constitutionally protected common school money. But the court was
careful to note,"It is not that the legislature cannot make provision for the support
of a model training school, but in its attempt to do so, it has made provision for it
out of the wrong fund." Id. Therefore, Bryan supports the conclusion that article
IX, section 2 does not prevent the legislature from creating non-common-schools
that are not specialized so long as they do not use funds allocated for common
schools.
Appellants argue that Bryan is only one of many decisions where this court
has struck down legislation supporting non-common-schools. But,just as in Bryan,
the court's decisions have always turned on the legislature's improper use of
common school money. State ex rel. State Bd.for Vocational Educ. v. Yelle, 199
Wash. 312, 316-17, 91 P.2d 573(1939)(vocational rehabilitation of disabled
persons cannot be paid for by the common school fund); Mitchell v. Consol. Sch.
El Centra de la Raza, et al. v. State, No. 94269-2
Dist. No. 201, 17 Wn.2d 61,66, 135 P.2d 79(1943)(plurality opinion)(students
attending private and parochial schools cannot use public school transportation paid
for by the common school fund); League of Women Voters, 184 Wn.2d at 413
(charter schools are not common schools and cannot use common school funds).
None of these cases stand for the proposition that non-common-schools can provide
only specialized educational opportunities.
In sum, article IX, section 2 does not restrict the legislature's ability to create
non-common-schools that provide a general education and are open to all students.^
2. The Act complies with the general and uniform system of public
schools
When the legislature exercises its authority to create a non-common-school
then the school must conform to the requirements ofthe "general and uniform
system of public schools." CONST, art. IX, § 2. We most recently described this
system in Federal Way School District No. 210 v. State:
"A general and uniform system, we think, is, at the present time, one in
which every child in the state has free access to certain minimum and
reasonably standardized educational and instructional facilities and
opportunities to at least the 12th grade—a system administered with
that degree of uniformity which enables a child to transfer from one
^ The State, intervenor-respondents, and amici argue that if this court accepts appellants'
argument, then it jeopardizes numerous non-common-schools or programs provided at non-
common-schools. See, for example, trihal compact schools, RCW 28A.715.020; Running Start,
RCW 28A.600.310; high school programming operated in community college, RCW 28B.50.533;
"Youth Offender Program" operated by the Department of Corrections under contract with
Centralia College, RCW 28A.193.020; CP at 2207; and online learning operated hy nonprofits or
private entities, RCW 28A.232.010. However, the constitutionality ofthese schools and
programs is not before this court.
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El Centra de la Raza, et al. v. State, No. 94269-2
district to another within the same grade without substantial loss of
credit or standing and with access by each student of whatever grade to
acquire those skills and training that are reasonably understood to be
fundamental and basic to a sound education."
167 Wn.2d 514, 524, 219 P.3d 941 (2009){qaoCmgNorthshore Sch. Dist. No. 417
V. Kinnear, 84 Wn.2d 685, 729, 530 P.2d 178(1974)(plurality opinion), overruled
on other grounds by Seattle Sch. Dist. No. 1, 90 Wn.2d at 514).
Based on this definition, we held that the Basic Education Act(BEA), which
provides(1) uniform educational content,(2)teacher certification,(3) minimum
instructional hour requirements, and (4) a "statewide assessment system enabling
students to transfer from one school district to another without loss of credit and
with access to substantially the same educational opportunities," satisfies the
general and uniform system of public schools mandated by article IX, section 2. Id.
at 524-25.
i. The Act is sufficiently similar to the BEA in relevant parts to
satisfy uniformity
The Act is sufficiently similar to the BEA in pertinent parts, and a
comparison ofthe two shows this similarity. First, charter schools provide the same
uniform educational content as the BEA because they provide the same
instructional program of basic education. Id. The Act states that charter schools
must "[pjrovide a program of basic education" that includes(1)the goals codified at
RCW 28A.150.210, which aim to ensure that schools provide all students the
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El Centra de la Raza, et al. v. State, No. 94269-2
opportunity to obtain knowledge and skills essential to their success/ (2)
instruction in the essential academic learning requirements(EALRs), which are
developed by the superintendent of public instruction and "identify the knowledge
and skills all public school students need to know and be able to do," RCW
28A.655.070(1), and (3)the statewide student assessment, which is developed by
the superintendent and assesses students' mastery ofthe EALRs in the areas of
reading, writing, mathematics, and science. RCW 28A.710.040(2)(b).
While the Act does not define "program of basic education," the legislature
expressly directs us to construe Title 28A RCW "in pari materia even though as a
matter of prior legislative history they were not originally enacted in the same
statute." RCW 28A.900.040. Therefore, we consult the definition of"program of
basic education" found in the BEA and applicable to common schools. RCW
28A.150.203(9). '"Program of basic education' means the overall program under
RCW 28A.150.200 and deemed by the legislature to comply with the requirements
of Article IX, section 1 ofthe state Constitution." Id. RCW 28A.150.200(2)(a), in
^ The learning goals are as follows:"(1) Read with eomprehension, write effectively, and
communicate successfully in a variety of ways and settings and with a variety of audiences;(2)
Know and apply the core concepts and principles of mathematics; social, physical, and life
sciences; civics and history, including different cultures and participation in representative
government; geography; arts; and health and fitness;(3)Think analytically, logically, and
creatively, and to integrate technology literacy and fluency as well as different experiences and
knowledge to form reasoned judgments and solve problems; and(4)Understand the importance
of work and finance and how performance, effort, and decisions directly affect future career and
educational opportunities." RCW 28A.150.210.
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El Centra de la Raza, et al. v. State, No. 94269-2
turn, states that the "minimum components" for the instructional program of basic
education are outlined in RCW 28A.150.220. The components are:
(a) Instruction in the [EALRs] under RCW 28A.655.070;
(b) Instruction that provides students the opportunity to
complete twenty-four credits for high school graduation, beginning
with the graduating class of 2019 or as otherwise provided in RCW
28A.230.090. Course distribution requirements may be established by
the state board of education under RCW 28A.230.090;
(c) If the essential academic learning requirements include a
requirement of languages other than English, the requirement may be
met by students receiving instruction in one or more American Indian
languages;
(d) Supplemental instruction and services for students who are
not meeting academic standards through the learning assistance
program under RCW 28A.165.005 through 28A.165.065;
(e) Supplemental instruction and services for eligible and
enrolled students and exited students whose primary language is other
than English through the transitional bilingual instruction program
under RCW 28A.180.010 through 28A.180.080;
(f) The opportunity for an appropriate education at public
expense as defined by RCW 28A.155.020 for all eligible students with
disabilities as defined in RCW 28A.155.020; and
(g) Programs for highly capable students under RCW
28A.185.010 through 28A.185.030.
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El Centra de la Raza, et al. v. State, No. 94269-2
RCW 28A.150.220(3).^ In sum, charter schools,just like common schools, provide
the instructional program of basic education in the BEA.^
Just as the BEA does for common schools, the Act requires charter schools to
employ certified teaehers with limited exceptions that also apply to common
schools. RGW 28A.710.040(2)(c). Charter schools also must provide the same
minimum instructional hours as common schools as mandated by the program of
basic education. RCW 28A.150.220(2).
Finally,just like the BEA,the Act requires charter schools to participate in
the statewide assessment, and nothing in the Act's plain language inhibits students'
ability to transfer between schools. RCW 28A.710.040(2)(b). We are unpersuaded
by appellants' claim that students who transfer into charter schools from other
^ At the time this lawsuit was filed RCW 28A.150.220(3)(d) read,"Supplemental
instruction and services for underachieving students through the learning assistance program
under RCW 28A.165.005 through 28A.165.065." Former RCW 28A.150.220(3)(d)(2014)
(emphasis added). The legislature has since replaced "underachieving students" with "students
who are not meeting academic standards." Engrossed H.B. 2242, 65th Leg., 3d Spec. Sess.
(2017). Because the provision is suhstantively identical, we list the law as it stands today.
^ In addition, the State asserts that all charter school contracts require compliance with the
BEA's instructional program of basic education pursuant to RCW 28A.150.200 and .220. Br. of
Resp't State of Wash, at 27; see also WAC 180-19-030(4)(e).
Appellants also sought review on whether the Act unconstitutionally delegates to charter
schools the authority to define the components of a program of basic education. Appellants'
Statement of Grounds for Direct Review at 7. Because we hold charter schools provide the same
instructional program of basic education as common schools, we do not reach appellants'
delegation argument.
Declarations submitted at the trial court also indicate all charter schools meet the
instructional hours required by the BEA. CP at 973-74, 1100.
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El Centra de la Raza, et al. v. State, No. 94269-2
public schools may lose credits. Br. of Appellants at 29. The Act states that other
public schools must honor credits earned "in the charter school[s] in the same
manner and according to the same criteria that credits are accepted from other
public schools." RCW 28A.710.060(2). While the Act is silent on how credits are
calculated when a student enters a charter school, no provision of the Act indicates
charter schools will not honor credits earned elsewhere. Accordingly, the Act does
not on its face break the uniformity requirement by interfering with students' ability
'"to transfer from one district to another within the same grade without substantial
loss of credit or standing.'" Fed. Way Sch. Dist. No. 210, 167 Wn.2d at 524(quoting Northshore Sch. Dist. No. 417, 84 Wn.2d at 729).
Justice Madsen's dissent does not dispute that charter schools provide the
same program of basic education, employ certified teachers, meet the minimum
instructional hours, and participate in the statewide assessment. The dissent
nevertheless concludes without evidence that charter schools violate uniformity
because they "frustrate a student's access to standardized educational opportunities
and his or her ability to freely transfer to other schools without negative impact."
Dissent(Madsen, J.) at 6. In essence, the dissent would hold that all public schools
must be identical to common schools in order to satisfy uniformity. There is no
support for such a sweeping assertion. Neither the constitution nor our precedent
require non-common-schools to be indistinguishable from common schools, and
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El Centra de la Raza, et al. v. State, No. 94269-2
adopting the dissent's position would greatly limit the legislature's ability to
innovate.
In sum, charter schools are not rendered unconstitutional just because they do
not operate identically to common schools. The Act on its face satisfies the general
and uniform system of public schools because, in relevant parts, it is sufficiently
similar to the BEA, which we have already held satisfies article IX, section 2.
ii. Non-common-schools are not required to have locally elected
school boards
As described above, charter schools satisfy the general and uniform system as
defined in Federal Way School District No. 210, but we address an argument raised
by appellants and Justice Madsen's dissent regarding local voter control. Both
appellants and Justice Madsen's dissent argue the Act violates article IX, section 2
because, unlike common schools, charter schools are not run by locally elected
school boards. This argument attempts to extend the local voter control
requirement that applies to common schools to all public schools, but the public
school system "is neither limited to common schools nor is it synonymous
therewith." Seattle Sch. Dist. No. 1, 90 Wn.2d at 522. Therefore, while Bryan
established that local voter control "is a most important feature" of common
schools, we have never said it is a constitutional requirement that applies to all
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El Centra de la Raza, et al. v. State, No. 94269-2
schools in the general and uniform system of public schools. Bryan, 51 Wash, at
504.
Justice Madsen's dissent concedes that Bryan's, discussion of local voter
control is limited to common schools, but it nevertheless argues that local voter
control is "an established core characteristic" ofthe general and uniform system.
Dissent(Madsen, J.) at 4. This conclusion is not supported by precedent or history.
As previously discussed, the court in Bryan determined the model schools were
unconstitutional—^not because oftheir governance structure, but because they were
improperly funded using common school money. The court did not declare that
model schools must have locally elected school boards but, instead, noted that all
such "experiments in education must be indulged, if at all," using non-
constitutionally-protected funds. Bryan, 51 Wash, at 505. Therefore, Bryan does
not suggest that local voter control is an essential element of the general and
uniform system of public schools.
There are also numerous examples of non-common-schools without locally
elected school boards that date back to this state's founding. The first normal
schools, a type of non-common-school expressly recognized in article IX, section 2,
were established the year after the constitution was written. LAWS OF 1890, § 1, at
278, § 1, at 281. They were governed by separate unelected boards oftrustees. Id.
§ 4, at 278, § 3, at 282. Today, the State and intervenor-respondents also identify
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El Centra de la Raza, et al. v. State, No. 94269-2
many non-common-schools that are not subject to local voter control. Br. of Resp't
State of Wash, at 33; Intervenor-Resp'ts' Br. at 6-7.
It also makes sense that charter schools are not required to have locally
elected school boards because oftheir funding source. Unlike common schools,
charter schools receive no local levy money. Therefore, they do not raise the same
concerns as common schools about local control over locally raised tax dollars.
In sum,the Act does not violate article IX, section 2 due to lack of a locally
elected school board because the constitution does not require it.
B. The Act does not violate article III, section 22 by delegating the
superintendent's supervisory role to the Washington State Charter School
Commission
Article III, section 22 provides,"The superintendent of public instruction
shall have supervision over all matters pertaining to public schools, and shall
perform such specific duties as may be prescribed by law." Appellants and Justice
Wiggins' dissent argue the Act divests the superintendent of his supervisory power
over charter schools because it creates the Washington State Charter School
Commission (Commission).
The Commission is an independent state agency with the authority to
authorize charter schools anywhere in the state. RCW 28A.710.070(1)." The
"A school district can also apply to be an authorizer through the Washington State Board
of Education. RCW 28A.710.090. Once approved, it can authorize charter schools within its
district.
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El Centre de la Raza, et al. v. State, No. 94269-2
Commission reviews charter school applications according to nationally recognized
procedures, practices, and criteria. RCW 28A.710.140. If the Commission grants
an application, it executes a contract with the school that sets academic and
operational expectations with metrics such as student achievement, the school's
financial performance, and its compliance with its contract and all laws. RCW
28A.710.160(2),.170(2).
The Commission is also charged with "continually monitor[ing] the
performance and legal compliance" of the schools it authorizes "to ensure the
highest standards of accountability and oversight for these schools." RCW
28A.710.180(1),.070(1). If the Commission determines that a school is not
complying with its legal obligations, then it can impose sanctions or revoke the
school's contract. RCW 28A.710.180(3)-(4). It cannot renew a school's contract if
the school performs in the bottom quartile on the student achievement index, absent
exceptional circumstances. RCW 28A.710.200(2). In essence, the Commission
functions like a school district board that monitors the performance and operation of
its schools.
The superintendent of public instruction is an integral part ofthe
Commission. The superintendent is one ofthe Commission's 11 members and is
joined by the chair of the state board of education and 9 members appointed by the
governor, senate, and the house of representatives. RCW 28A.710.070(3). The
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El Centra de la Raza, et al. v. State, No. 94269-2
Commission is also housed at the office ofthe superintendent for administrative
purposes. RCW 28A.710.070(8). Despite the superintendent's critical role on the
Commission, the issue raised by appellants and Justice Wiggins' dissent is whether
the Commission interferes with the superintendent's constitutional duty to supervise
all public schools because the Commission oversees the schools it authorizes.
Const, art. Ill, § 22.
While there is no relevant precedent from this court interpreting article III,
section 22, we have interpreted what the term "supervision" means in other
contexts. In Great Northern Railway Co. v. Snohomish County, this court was
asked to interpret the term ''general supervision,'"' which appeared in a statute giving
the state board oftax commissioners general supervision over assessors and county
boards of equalization. 48 Wash. 478, 483,93 P. 924(1908). Supervision, the
court determined, requires '"the power to review all the acts ofthe local officers,
and to correct, or direct a correction of, any errors committed by them. Any less
power than this would make the "supervision" an idle act, —a mere overlooking
without power of correction or suggestion.'" Id. at 484(quoting Vantongeren v.
Heffernan, 5 Dakota 180, 38 N.W. 52, 56 (1888)).
This court later applied that definition of general supervision to the
superintendent of public instruction's supervisory powers as codified by the school
code. State ex rel. Sch. Dist. No. 301 v. Preston, 84 Wash. 79, 86, 146 P. 17520
El Centra de la Raza, et al. v. State, No. 94269-2
(1915). The court concluded that the superintendent's supervision meant
"something more than the power merely to confer with and advise, or to receive
reports, or file papers. In other words, that the power of supervision is not granted
to an officer as a mere formality." Id. at 86-87.
While we have not applied our interpretation ofthe term supervision to
article III, section 22, the attorney general has, and we consider official opinions
persuasive authority. Everett Concrete Prods., Inc. v. Dep 't ofLabor & Indus., 109
Wn.2d 819, 828, 748 P.2d 1112(1988);.yee 1975 Op. Atfy Gen. 1, at 8. The
attorney general notes that the legislature "is quite free to shape the state's
education system as it may choose, and to define the Superintendent's role within
that system" so long as it respects the superintendent's supervisory role. 1998 Op.
Att'y Gen. No. 6, at 4. Accordingly, the attorney general determined the legislature
may delegate administration of a program of basic education to an agency or
institution so long as the superintendent retains supervision and is not made
subordinate to any other agency. 2009 Op. Att'y Gen. No. 8, at 15 (citing 1998 Op.
Att'y Gen. No. 6, at 4).
Therefore, considering our case law and the opinions of the attorney general,
there is no article III, section 22 violation so long as the Commission does not
interfere with the superintendent's power to take corrective action and so long as
the superintendent is not made subordinate to the Commission.
21
El Centra de la Raza, et al. v. State, No. 94269-2
The Act expressly recognizes the superintendent's supervisory duty when it
states, "Charter schools are subject to the supervision of the superintendent of
public instruction and the state board of education, including accountability
measures, to the same extent as other public schools, except as otherwise provided
in this chapter." RCW 28A.710.040(5). There is nothing in chapter 28A.710 ROW
that qualifies or diminishes the superintendent's powers.
The Commission does not interfere with the superintendent's statutory duties.
For example, the superintendent develops and revises the EALRs that are a
mandatory component ofthe program of basic education used in charter schools
and common schools. RCW 28A.655.070(1). The superintendent manages teacher
certification, and charter schools must employ certified teachers. RCW
28A.410.010(2); RCW 28A.710.040(2)(d). The superintendent develops the
statewide student assessment, which charter schools must complete. RCW
28A.655.070(3)(a). Finally, the superintendent reports on the management and
improvement of all public schools, which includes charter schools. RCW
28A.300.040(2). The Commission does not play a role in the superintendent's
execution of any of these codified duties.
Nor does the Commission divest the superintendent offinancial control over
Commission-authorized charter schools. Appellants place great weight on language
in the Act that states the superintendent "shall distribute state funding to charter
22
El Centra de la Raza, et al. v. State, No. 94269-2
schools." RCW 28A.710.220(2). Appellants allege this mandate means the
superintendent can never withhold funds. However, nothing in this statutory
language points to any interference by the Commission in how funding is
distributed. There are also similar statutory provisions applicable to both common
schools and non-common-schools, and there is no indication that they prevent the
superintendent from withholding funds when necessary. RCW 28A.510.250(1)(the
superintendent '"shall apportion from the state general fund" money for common
schools (emphasis added)); RCW 28A.715.040(2)(funding for tribal compact
schools "shall be apportioned by the superintendent of public instruction"
(emphasis added)).
The superintendent has recovered funds from a charter school. First Place Scholars
Charter School was overpaid due to "some recordkeeping and reporting inadequacies by the
school" and enrollment falling below initial projections. CP at 2206. The superintendent
withheld a portion of its disbursements and First Place Scholars Charter School later reimbursed
the superintendent the remaining overpayment. Id.The State cites numerous WACs as evidence that the superintendent maintains financial
control over charter schools. They are not critical to a facial challenge of the Act, but they
highlight the superintendent's involvement in the budget process for charter schools. The
superintendent reviews a charter school's adopted budget annually, including, but not limited to,
"completion of data entry and edit, review of revenues and unreserved fund balances for accuracy,
appropriateness of expenditures, and determination of whether or not the budget is in compliance
with this chapter, state statutory law, and budget instructions issued by the superintendent of
public instruction." WAC 392-123-0795. If the budget does not comply with applicable law,
then the superintendent notifies the charter school board and the charter school's authorizer.
WAC 392-123-080. The superintendent can impose binding restrictions on a charter school to
improve its financial position if the schools is unable to balance its budget. WAC 392-123-060.
If the authorizer finds the charter school has not complied with the binding restrictions, then the
superintendent may withhold funds. WAC 392-123-065.
23
El Centra de la Raza, et al. v. State, No. 94269-2
Justice Wiggins' dissent infers a constitutional violation because each
statutory provision assigning duties to the Commission does not also explicitly state
that the superintendent still maintains his or her constitutional supervisory authority.
The dissent then concludes that any power given to the Commission necessarily
takes supervisory power away from the superintendent. Nothing in the Act requires
this interpretation. The Act gives the Commission enumerated powers, but it does
not disturb the superintendent's supervision.
It would be absurd to require that every statute that gives power to an
individual or entity also include a recitation ofthe superintendent's inherent,
constitutionally granted supervisory authority. Statutes related to common schools'
boards of directors do not include such a disclaimer. For example, RCW
28A.150.230 outlines the responsibilities of common school boards of directors.
Boards supervise various aspects ofthe districts, including adopting policies that
"establish performance criteria and an evaluation process for its superintendent,
classified staff, certificated personnel, including administrative staff, and for all
programs constituting a part of such district's curriculum." RCW
28A.150.230(2)(a). Boards are similarly charged with adopting policies to establish
final curriculum standards and to evaluate teaching materials. Id. at (2)(f)-(g).
Nowhere in the statute does it declare that the powers given to the school board are
limited by article III, section 22. Just as it is unnecessary to reiterate the
24
El Centra de la Raza, et al. v. State, No. 94269-2
superintendent's power over school boards, it is unnecessary to reiterate the
superintendent's power over the Commission.
In sum, we hold that on its face the Act does not violate article III, section 22.
There is nothing in the Act that interferes with the superintendent's supervisory
duty, and so we conclude that the superintendent supervises charter schools in the
same manner as all other public schools. The phrase "except as otherwise
provided" appears to open the door to qualify or diminish the superintendent's
power, but any such amendment risks jeopardizing the Act's constitutionality.
RCW 28A.710.040(5). Were the Commission to interfere with the superintendent's
supervisory authority, as feared by Justice Wiggins' dissent, an as-applied challenge
would be appropriate.
C. The Act does not violate article IX, section 2 by diverting restricted common
school funds to support charter schools
Article IX, section 2 protects funding for common schools by requiring that
"the entire revenue derived from the common school fund and the state tax for
common schools shall be exclusively applied to the support ofthe common
schools." (Emphasis added.)"" While the constitution refers to a "common school
fund," today the restricted common school money is commingled with unrestricted
money in the general fund. Because "[tjhere is no way to track the restricted
Article IX, section 3 also establishes the common school construction fund for the
exelusive use of common schools.
25
El Centra de la Raza, et al. v. State, No. 94269-2
common school funds or to ensure that these dollars are used exclusively to support
the common schools," this court held non-common-schools cannot be funded out of
the general fund. League of Women Voters, 184 Wn,2d at 409.
The legislature has directed that charter schools are now to be funded by the
Opportunity Pathways Account(CPA), which is funded by lottery revenue. ROW
28A.710.270; ROW 28B.76.526. It is undisputed that the CPA is the sole funding
source for charter schools, and it contains no money from the general fund. CP at
2310, 2312.
Appellants allege that the Act,"[a]lbeit [i]ndirectly," diverts restricted
common schools funds to charter schools. Br. of Appellants at 32(underlining
omitted). Appellants first argue that charter schools' costs are increasing and they
will exhaust the OPA,forcing the legislature to use the general fund to pay for
charter schools. Alternatively, appellants contend that as more charter schools are
established, costs will rise and they will use a greater portion ofthe CPA, which
also supports education scholarships and early education programming. ROW
28B.76.526. Appellants then reason the legislature will use the general fund to
supplement funding for non-charter-school programs that currently rely on the
26
El Centra de la Raza, et al. v. State, No. 94269-2
OPA,though there is no authority for why the legislature is prohibited from doing
so.'^
Our inquiry ends with the Act's plain language because charter schools are
funded exclusively by the OPA and therefore receive no money from the general
fund. Appellants only speculate that the legislature will use an improper funding
source if and when it exhausts the OPA, but this is better reserved for an as-applied
challenge. Therefore, we hold that the Act does not on its face violate article IX,
section 2 by diverting restricted common school money to charter schools.
D. The provision ofthe Act that violates article II, section 37 is severable
Article II, section 37 provides,"No act shall ever be revised or amended by
mere reference to its title, but the act revised or the section amended shall be set
forth at full length." Appellants argue the Act violates this constitutional provision
because it changes the collective bargaining rights of charter school employees
without fully setting forth those revisions.'^ Appellants allege existing laws give all
public school employees the right to organize across schools within a school
Appellants also ask this court to take judicial notice ofthe latest enacted budget as
evidence that the legislature is using more general fund money for other programs that also
receive money from the OPA. Reply of Appellants at 23. They ask us to infer that charter
schools must be the cause of any budget adjustments. Because the legislature did not use general
fund money to support charter schools, we do not speculate about other legislative appropriations.
Appellants also argue that the Act violates article II, section 37 because it amends the
BEA by allowing charter schools to alter components of the instructional program of basic
education. Br. of Appellants at 46. Because we hold that charter schools are required to provide
the instructional program of basic education in the BEA, we do not further address appellants'
claim.
27
El Centra de la Raza, et al. v. State, No. 94269-2
district. They contend the Act amends without reference these existing laws to
restrict the rights of charter school employees.
Appellants' challenge concerns two ofthe state's collective bargaining laws,
chapters 41.59 and 41.56 RCW. Chapter 41.59 RCW gives certified school district
employees "the right to self-organization, to form,join, or assist employee
organizations,[and] to bargain collectively." RCW 41.59.060(1). Chapter 41.56
RCW applies broadly to public employees but excludes those covered by other
collective bargaining laws like chapter 41.59 RCW. RCW 41.56.020. Its purpose
is to "provid[e] a uniform basis for implementing the right of public employees to
join labor organizations oftheir own choosing and to be represented by such
organizations in matters concerning their employment relations with public
employers." RCW 41.56.010. Both chapters outline the process for how collective
bargaining units are determined. RCW 41.59.080; RCW 41.56.060.
The Act adds a nearly identical section to chapters 41.59 and 41.56 RCW.
RCW 41.59.031; RCW 41.56.0251. In relevant part, the new provision provides;
This chapter applies to any charter school established under chapter 28A.710
RCW. Any bargaining unit or units established at the charter school must be
limited to employees working in the charter school and must be separate from
other bargaining units in school districts, educational service districts, or
institutions of higher education. Any charter school established under
chapter 28A.710 RCW is a separate employer from any school district,
including the school district in which it is located.
28
El Centra de la Raza, et al. v. State, No. 94269-2
RCW 41.59.031; RCW 41.56.0251. While the Act expressly applies chapters 41.59
and 41.56 RCW to charter schools, it significantly limits the bargaining right of
charter school employees by restricting their bargaining units to individual charter
schools. The Act does not reference any other existing collective bargaining laws,
including the statutes that direct how bargaining units are determined. See RCW
41.59.080; RCW 41.56.060. The issue is whether the legislature violated article II,
section 37 when it limited the bargaining units of charter school employees to
individual schools but did not lay out in full or reference any other existing
collective bargaining laws.
We use a two-part test to evaluate an article II, section 37 challenge because
while '"[njearly every legislative act of a general nature changes or modifies some
existing statute, either directly or by implication,'" that does not necessarily mean
that the legislation is unconstitutional. Citizensfor Responsible Wildlife Mgmt. v.
State, 149 Wn.2d 622, 640, 71 P.3d 644(2003)(quoting Holzman v. City of
Spokane, 91 Wash. 418, 426, 157 P. 1086(1916)). First, we consider whether '"the
new enactment [is] such a complete act that the scope ofthe rights or duties created
or affected by the legislative action can be determined without referring to any other
statute or enactment.'" State v. Manussier, 129 Wn.2d 652, 663, 921 P.2d 473(1996)(quoting Wash. Educ. Ass'n v. State, 97 Wn.2d 899, 903,652 P.2d 1347(1982)). The purpose ofthis part ofthe test is to make sure the effect of new
29
El Centra de la Raza, et al. v. State, iNo. 94269-2
legislation is clear and to "'avoid[]confusion, ambiguity, and uncertainty in the
statutory law through the existence of separate and disconnected legislative
provisions, original and amendatory, scattered through different volumes or
different portions ofthe same volume.'" Amalg. Transit Union Local 587 v. State,
142 Wn.2d 183, 245, 11 P.3d 762(2000)(quoting Flanders v. Morris, 88 Wn.2d
183, 189, 558 P.2d 769(1977)).
Turning to the second part ofthe test, we ask whether '"a straightforward
determination of the scope of rights or duties under the existing statutes [would] be
rendered erroneous by the new enactment.'" Manussier, 129 Wn.2d at 663 (quoting
Wash. Educ. Ass'n, 97 Wn.2d at 903). If the answer is no, the legislation does not
violate article II, section 37. This prong ofthe test ensures that the legislature is
aware of the legislation's impact on existing laws. Amalg. Transit, 142 Wn.2d at
246.
The Act satisfies the first part ofthe test because it is complete. The rights of
charter school employees are "readily ascertainable from the words ofthe statute
alone." Citizensfor Responsible Wildlife Mgmt., 149 Wn.2d at 642. It does not
matter that the Act defines bargaining units for charter school employees differently
than for other public school employees because the rights of charter school
employees can be understood by reading only the Act.
30
El Centra de la Raza, et al. v. State, No. 94269-2
The answer to the second part ofthe test is more difficult to determine. To
understand whether the Act alters any existing rights, we separately analyze the
existing collective bargaining rights pursuant to chapters 41.59 and 41.56 RCW.
Chapter 41.59 RCW confers collective bargaining rights to certified school district
employees. RCW 41.59.020(4). But charter school employees are not school
district employees. Most charter schools are authorized by the Commission and
have no relationship to a school district. The employees ofthose authorized by
school districts are also not school district employees pursuant to their charter
contracts. CP at 1004. Therefore, there is no article II, section 37 violation with
respect to chapter 41.59 RCW because no rights were altered; certified school
district employees did not have an existing right to bargain with certified charter
school employees.
Chapter 41.56 RCW provides collective bargaining rights to "any county or
municipal corporation, or any political subdivision of the state of Washington,"
except those covered by other collective bargaining laws. RCW 41.56.020. Its
sweeping application means public school employees, including noncertified
charter school employees, have collective bargaining rights. One ofthose rights
concerns the way that bargaining units are determined. The statute charges the
Public Employment Relations Commission(PERC)with determining, modifying,
or combining bargaining units after considering employees' duties, skills, and
31
El Centra de la Raza, et al. v. State, No. 94269-2
working conditions; history of collective bargaining; organization; and desires.
RCW 41.56.060(1). Nothing in the statute's plain language prohibits PERC from
creating a bargaining unit that includes school district and charter school
employees.
Appellants argue the Act amends existing laws like RCW 41.56.060 because
bargaining units must be individual charter schools regardless offactors like
employees' duties, skills, and working conditions. But because the legislature did
not lay out existing laws, appellants contend "[t]he impact ofthe Act's
restrictions . . . cannot be fully understood." Br. of Appellants at 46. Appellants
rely on Washington Education Ass'n v. State, 93 Wn.2d 37, 38,604 P.2d 950(1980), where this court considered an appropriations bill that set limits on salary
increases for certain school district employees. Existing laws empowered school
districts "to spend funds, from whatever source, as they choose on teacher salaries."
Id. at 41. The court determined that the bill was unconstitutional because it
attempted to amend the school districts' power without fully setting out the existing
law. Id. Similar to Washington Education Ass'n, appellants argue that while the
Act purports to grant charter school employees bargaining rights, the Act actually
significantly reduces their existing power.
In contrast, the State argues that the legislature did not amend existing laws
because it "simply added charter school employees to the many sets of public
32
El Centra de la Raza, et al. v. State, No. 94269-2
employees covered by RCW 41.56." Br. of Resp't State of Wash, at 49. The
State's argument is not well taken because noncertified charter school employees
effectively had existing rights pursuant to chapter 41,56 RCW,even if the charter
schools did not yet exist. The State also attempts to justify the legislature's action
by arguing the legislature has made similar carve-outs for other groups of
employees and separately defined their bargaining units. See, e.g., RCW 41.56.025
(restricting the bargaining units of education providers who teach juveniles detained
at Department of Corrections facilities). However, our only concern is whether the
legislature complied with the requirements of article II, section 37 in this instance.
We return to the purpose of article II, section 37, which is to ensure that
'"[cjitizens or legislatures must not be required to search out amended statutes to
know the law on the subject treated in a new statute.'" Wash. Citizens Action of
Wash. V. State, 162 Wn.2d 142, 152, 171 P.3d 486(2007)(quoting Wash. Ass'n of
Neigh. Stores v. State, 149 Wn.2d 359, 373, 70 P.3d 920, abrogated on other
grounds by Filo Foods, LLC v. City ofSeaTac, 183 Wn.2d 770, 357 P.3d 1040(2015)). In this case, the Act produces the exact harm article II, section 37 attempts
to avoid: it requires a thorough search of existing laws in order to understand the
Act's effect on other provisions of chapter 41.56 RCW. After careful review, it is
clear that charter school employees not covered by chapter 41.59 RCW would be
covered by chapter 41.56 RCW because they are public employees. It is also clear
33
El Centra de la Raza, et al. v. State, No. 94269-2
that absent legislation restricting their rights, charter school employees' bargaining
units would not be restricted to individual charter schools because bargaining unit
determinations would be controlled by RCW 41.56.060. Therefore, the effect ofthe
Act is to greatly restrict the existing bargaining rights of charter school employees
without "explicitly show[ing] how [the Act] relates to statutes it amends." Id.(emphasis omitted). We hold this violates article II, section 37.
The next question is whether the Act's offending provision is severable. In
making a severability determination, we consider
"whether the constitutional and unconstitutional provisions are so
connected ... that it could not be believed that the legislature would
have passed one without the other; or where the part eliminated is so
intimately connected with the balance ofthe act as to make it useless
to accomplish the purposes ofthe legislature."
State V. Abrams, 163 Wn.2d 277, 285-86, 178 P.3d 1021 (2008)(alteration in
original)(quoting Gerherding v. Munro, 134 Wn.2d 188, 197, 949 P.2d 1366(1998)).
As to the first requirement, we have held that when legislation includes a
severability clause, it "provide[s] the necessary assurance that the Legislature would
have enacted the appropriate sections ofthe legislation despite the unconstitutional
sections." Gerherding, 134 Wn.2d at 197. In this case, the legislature included a
severability clause that states,"If any provision of this act or its application to any
person or circumstance is held invalid, the remainder of the act or the application of
34
El Centra de la Raza, et al. v. State, No. 94269-2
the provision to other persons or circumstances is not affected." ENGROSSED
Second Substitute S.B. 6194, at § 305, 64th Leg., Reg. Sess.(Wash. 2016). This
clause favors concluding that the legislature still would have passed the Act absent
the offending provision.
Turning to the second requirement, the collective bargaining rights of
noncertified employees are not so intertwined as to undermine the purpose of the
legislation. The purpose ofthe Act is to authorize the creation of up to 40 charter
schools over a five-year period. RCW 28A.710.150(1). This purpose is not
undercut when the bargaining units of noncertified employees are not limited to
individual charter schools. Our determination is also bolstered by the fact that the
provision is '"grammatically, functionally, and volitionally severable.'" Abrams,
163 Wn.2d at 287(quoting McGowan v. State, 148 Wn.2d 278, 295, 60 P.3d 67(2002)). It stands alone as a separate section of the Act, it is the only provision that
addresses the collective bargaining rights of noncertified employees, and there is no
evidence the legislature would not have passed the Act without it. We conclude it
is severable.
In sum, we hold that the Act violates article II, section 37 by adding a
provision to chapter 41.56 RCW that renders erroneous existing collective
bargaining rights without reference. However,the offending provision is severable,
and the remainder ofthe Act stands.
35
El Centra de la Raza, et al. v. State, No. 94269-2
CONCLUSION
Appellants raise many challenges to the constitutionality of the Act, but we
agree with only one. The Act violates article II, section 37 with respect to its
revision of chapter 41.56 ROW; however, that provision is severable. Appellants
have otherwise failed to carry their heavy burden to show that there is no way the
remainder of the Act can be implemented in a manner that is constitutional.
Therefore, we affirm the trial court in part, strike the provision that we find
unconstitutional, and hold that the remainder ofthe Act is constitutional on its face.
36
El Centra De La Raza, et al. v. State, No. 94269-2
WE CONCUR:
37
El Centro de la Raza v. State
No. 94269-2
Gonzalez,J.(concurring in part and dissenting in part)—agree with the
lead opinion's well-reasoned opinion on all points except one. I cannot join the
lead opinion's conclusion that RCW 41.56.0251, as enacted, violates article II,
section 37 of our state constitution.
I agree that the critical question is,"Would a straightforward determination
of the scope of rights or duties under the existing statutes be rendered erroneous by
the new enactment?" Wash. Educ. Ass'n v. State, 93 Wn.2d 37, 41,604 P.2d 950(1980)(citing Weyerhaeuser v. King County, 91 Wn.2d 721, 731, 592 P.2d 1108(1979)). 1 also agree that the Public Employees' Collective Bargaining Act,
chapter 41.56 RCW,was affected. Under chapter 41.56 RCW,the Public
Employment Relations Commission usually decides who is in which bargaining
unit. RCW 41.56.060. The charter school act effectively divested the commission
of that power as to charter school employees by limiting the bargaining unit to
each charter school. Laws OF 2016, ch. 241, § 137.
El Centra de la Raza v. State, No. 94269-2
(Gonzalez, J., concurring and dissenting)
But I am not persuaded that a straightforward determination of rights and
duties under chapter 41.56 RCW was rendered erroneous by the charter school act.
The Public Employment Relations Commission never had authority to determine
bargaining units for charter schools because they did not exist. Initiative 1240 both
created charter schools and limited charter school employees' ability to organize.
Laws of 2013, ch. 2 & § 307(currently codified at RCW 41.56.0251). This was a
deliberate policy choice by the drafters. The charter school act reenacted that
language without change. Laws of 2016, ch. 241, § 137. No charter school
employee has been employed in this state or been available to organize without this
limitation on the books. This was a policy choice the legislature had the power to
make (and, of course, to unmake). I cannot say that "a straightforward
determination of the scope of rights or duties under the existing statutes [was]
rendered erroneous by the new enactment" when the same act that created the new
type of employee also limited their collective bargaining power. Wash. Educ.
Ass'n, 93 Wn.2d at 41 (citing Weyerhaeuser, 91 Wn.2d at 731). Regardless of
whether it was a good policy choice, article II, section 37 is not offended.
I agree with the lead opinion that that the legislature would have passed the
charter school act without RCW 41.59.031 and RCW 41.56.0251. Thus,I concur
with the lead opinion that those provisions are severable.
El Centra de la Raza v. State, No. 94269-2
(Gonzalez, J., concurring and dissenting)
Accordingly, I respectfully concur in part and dissent in part.
El Centra de la Raza v. State, No. 94269-2
(Gonzalez, J., concurring and dissenting)
A'VoXtt
El Centra de la Raza, et al. v. State, et al.
No. 94269-2
MADSEN,J.(dissenting)—agree with Justice Wiggins's dissent that the 2016
charter school act(Act), Laws of2016, ch. 241, violates article III, section 22 of our state
constitution by usurping the constitutional duties ofthe superintendent of public
instruction, and that the offending provisions are not severable, thereby rendering the
entire Act unconstitutional. I write separately because, in my view, the Act additionally
violates the uniformity requirement contained in article IX, section 2 of our state
constitution, as discussed below.
The lead opinion holds that "charter schools are not rendered unconstitutional just
because they do not operate identically to common schools." Lead opinion at 16. While
I do not disagree with the underlying general principle that all schools need not be
identical, in my view, the sweeping exceptions the Act provides for charter schools,
coupled with the absence of any direct accountability to the local community that charter
schools purport to serve, result in a failing of uniformity that violates article IX, section 2
of our state constitution. Accordingly,I dissent.
The relevant constitutional provision states,"The legislature shall provide for a
general and uniform system of public schools. The public school system shall include
common schools, and such high schools, normal schools, and technical schools as may
No. 94269-2
Madsen, J., dissenting
hereafter be established." WASH. CONST, art. IX, § 2; see also Sch. Dist. No. 20 v. Bryan,
51 Wash. 498, 501,99 P. 28(1909)(quoting same). In Bryan, this court explained that
our state constitution "imposed upon the legislature [the duty] of providing a general and
uniform system of public schools." Bryan, 51 Wash, at 502. Relevant to the context in
Bryan, this court explained:
The system must be uniform in that every child shall have the same
advantages and be subject to the same discipline as every other child. A
system of control through school boards and county superintendents is
provided for, their duties defined, and a method supplied to secure, in
theory at least, efficient teachers and instructors.
Id. at 502-03.
In Bryan, the challenged legislation authorized students to be taught at model
schools set up in normal (i.e., teachers') schools as an aid for trainee teachers. Bryan
held in part that the legislation at issue was invalid because "its operation ... would
break the uniformity ofthe common school system," that is, by having students instructed
by uncertified teachers. Id. at 504. Although this court's decision in Bryan ultimately
turned on the improper diversion of common school funds, its discussion of required
uniformity concerning the public school system remains relevant.
Here, the "uniform system of public schools" that article IX, section 2 requires is
thwarted by the method of governance provided for charter schools by the Act. Under
the Act, charter schools are run by an appointed board or nonprofit organization.^ See
^ Such managing entity (i.e., the appointed charter school board or the nonprofit organization
hired by the board to manage the charter school) is responsible for functions that would normally
be handled by an elected school board, including hiring, managing, and discharging employees;
No. 94269-2
Madsen, J., dissenting
RCW 28A.710.010(1),(5),(6), .030(l)(c). Thus, they are not subject to local voter
control and lack any direct accountability to the communities they purport to serve. In
Bryan, this court acknowledged the importance of local voter control regarding common
schools stating:
[A]common school, within the meaning of our constitution, is one that is
common to all children of proper age and capacity, free, and subject to and
under the control of the qualified voters ofthe 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 select
qualified teachers, with powers to discharge them if they are incompetent.
51 Wash, at 504.
Here, charter schools are "[ojpen to all children free of charge" and are required to
provide equivalent educational opportunities and advancement as compared to common
schools, while utilizing public funds. See RCW 28A.710.020(l)(a), .020(2), .040(2)(b);
see also RCW 28A.710.050(1)(charter schools are "open to any student regardless of his
or her location of residence"), .280(1)(state funding for charter schools is to be
distributed "equitably"),.020(l)(b)(charter schools are "an alternative to traditional
common schools"). But, because charter schools are not subject to local voter control, as
are common schools, the different(nonuniform) governance of charter schools runs afoul
of the constitutional requirement of a "uniform public school system." Again, while I do
not disagree with the lead opinion's general notion that legislatively created non-
receiving and disbursing funds; and entering into contracts, among other typical management
tasks. 5'eeRCW28A.710.030(l).
No. 94269-2
Madsen, J., dissenting
common-schools need not operate identically to common schools in every respeet,^
nevertheless, the private governance and commensurate lack of accountability to local
voters regarding charter schools that are open to all students, marks a fundamental and, in
my view, dispositive difference between charter schools and common schools sufficient
to render the new eharter schools outside the uniformity requirement of article IX, section
2.
I acknowledge that in Bryan this court was addressing the characteristies for
common schools and that we have recently made clear that charter schools are not
common schools. See League of Women Voters of Wash. v. State, 184 Wn.2d 393, 412,
355 P.3d 1131 (2015). Nevertheless, the Act creates a parallel publie school system (i.e.,
up to 40 sehools that are open to all students, RCW 28A.710.150(1)), teaching a general
curriculum, using public funds, and lacking direct local voter control. That last attribute
renders charter schools at odds with an established core charaeteristie of our general
edueation public school system—loeal accountability—and results in nonuniformity.
This is so because eharter schools, which purport to be open to all students and to provide
a general edueation, are exempt from many of the requirements of our state public school
system. The Act provides that charter schools are subject to express charter contract
terms and state and federal laws concerning health, safety, parents' rights, eivil rights.
^ In stating that "the dissent would hold that all public schools must be identical to common
schools in order to satisfy uniformity," lead opinion at 15, the lead opinion clearly misreads the
dissent.
No. 94269-2
Madsen, J., dissenting
and nondiscrimination; but the Act otherwise provides sweeping exemptions to charter
schools, stating,
For the purpose of allowing flexibility to innovate in areas such as
scheduling, personnel, funding, and educational programs to improve
student outcomes and academic achievement, charter schools are not
subject to, and are exempt from, all other state statutes and rules applicable
to school districts and school district boards of directors. Except as
provided otherwise by this chapter or a charter contract, charter schools are
exempt from all school district policies.
RCW 28A.710.040(3). These exemptions authorize wide variations of personnel
management, curriculum, discipline, and academic accountability, both among charter
schools and between charter schools and other portions of our general education public
school system. This court has repeatedly indicated that under article IX, section 2's
uniformity requirement,"every child shall have the same advantages and be subject to the
same discipline as every other child." Bryan, 51 Wash, at 502; Fed. Way Sch. Dist. No.
210 V. State, 167 Wn.2d 514, 524, 219 P.3d 941 (2009). The noted exemptions violate
that principle, rendering the Act nonuniform.
Further, in light of such sweeping exemptions, local voter control would be
essential to ensure that charter schools are held accountable to the people the schools
purport to serve. But there is no local control under the Act. Thus, the accountability this
court found essential in Bryan is absent. See Bryan, 51 Wash, at 504(recognizing the
importance of voter control of the schools through their chosen agents).
The lead opinion relies on Federal Way School District, in which this court
reiterated.
No. 94269-2
Madsen, J., dissenting
"A general and uniform system, we think, is, at the present time, one
in which every child in the state has free access to certain minimum and
reasonably standardized educational and instructional facilities and
opportunities to at least the 12th grade—a system administered with that
degree of uniformity which enables a child to transfer from one district to
another within the same grade without substantial loss of credit or standing
and with access by each student of whatever grade to acquire those skills
and training that are reasonably understood to be fundamental and basic to
a sound education."
167 Wn.2d at 524 ((\aotmg Northshore Sch. Dist. No. 417 v. Kinnear, 84 Wn.2d 685,
729, 530 P.2d 178 (1974), overruled on other grounds by Seattle Sch. Dist. No. 1, 90
Wn.2d 476, 514, 585 P.2d 71 (1978)).^ But, in my view, the Act's sweeping exemptions
can only frustrate a student's access to standardized educational opportunities and his or
her ability to freely transfer to other schools without negative impact.
Further, in the present context, I would add local voter control to the above quoted
list of general education public school system uniformity attributes. This court made
clear in Bryan that local voter control ofthe school, to ensure accountability to those
served by the school, was a hallmark of common schools. In my view, to maintain
uniformity within the public school system, a charter school, which is open to all children
and offers a general education, must likewise be subject to local voter control. As noted,
this court stated in Bryan,"Uniform" means that ''every child shall have the same
^ In Federal Way School District, we again addressed a funding issue. The Northshore School
District decision, from which the Federal Way School District decision quoted, also addressed a
challenge to the state school system's funding. In Federal Way School District, we ultimately
rejected the school district's contention that the school funding system, as it concerned staff
salaries, violated the uniformity requirement of article IX, section 2. In considering the historical
context of article IX, section 2's uniformity provision this court stated in relevant part,"At the
time ofthe constitution and since,. . . local control has been assured through locally elected
school board administrators." 167 Wn.2d at 523.
No. 94269-2
Madsen, J., dissenting
advantages and be subject to the same discipline as every other child.'" Bryan, 51 Wash,
at 502(emphasis added). In my view, accountability to those served by a general
education school via local voter control is a historically established attribute (i.e., an
"advantage" to which all general education students are entitled) that falls within article
IX, section 2's uniformity requirement.
I acknowledge that some other legislatively created schools and educational
programs are also not subject to local voter control. The parties point to several, such as
tribal compact schools.'^ But these programs are distinguishable in that they either serve
discrete populations or provide special instruction.^ See, e.g., Tunstall v. Bergeson, 141
Wn.2d 201, 222-23, 5 P.3d 691 (2000)(holding that chapter 28A.193 RCW makes ample
provision for educational programs designed to address "the special educational and
'^See RCW 28A.715.020(2)(tribal compact schools are "exempt from all state statutes and rules
applicable to school districts and school district boards of directors"); see also RCW
28A.600.310("Running start program" authorizing qualified 11th and 12th grade high school
students to take classes offered at higher education institutions), .350 (for both high school and
postsecondary credit), .385 (and such program may include participation by nearby Oregon and
Idaho cormnunity colleges); RCW 28A.185.040(conceming the University of Washington's
early entrance program and transition school for the education of highly capable students below
18 years of age; providing that the transition school is limited to 30 enrollees per year); RCW
28A.193.020 (authorizing superintendent of public instruction to solicit an education provider for
the Department of Corrections'(DOC)juvenile inmates); Clerk's Papers at 873 (noting the
DOC's operation of a "Youth Offender Program" under contract with Centralia College for the
education ofjuvenile inmates).
^ See, e.g., RCW 28A.715.030(3)(state-tribal education compact schools "may prioritize the
enrollment of tribal members" if the school's capacity is insufficient to enroll all students who
apply); see also RCW 28A.715.800 (authorizing a pilot project for participating tribal compact
schools that provides flexibility to accommodate cultural, fisheries, and agricultural events and
practices, and permits replacing statewide student assessments with locally developed, culturally
relevant assessments),.810(exempting student participants in such pilot project from general
requirements, such as the obligation to earn a certificate of academic achievement as a
prerequisite for graduation from public high school).
No. 94269-2
Madsen, J., dissenting
rehabilitative needs of children incarcerated in adult prisons"). Further, I agree with the
lead opinion that the constitutionality of these special programs and schools is not before
the court in this case. See lead opinion at 10 n.6. By contrast, charter schools under the
Act are required to be open to all children and to provide equivalent education to
common schools. This distinguishes them from special and limited educational
programs. And, as discussed, in this circumstance the requirements of uniformity, in my
view, include accountability through local voter control.^
In sum,the Act creates a parallel public school system that provides a general
education, serves all students, and uses public funds, but lacks local voter control or
oversight. In my view, it therefore violates the uniformity requirement of article IX,
section 2.
For the reasons discussed, I dissent.
^ I acknowledge the State's contention that the Spokane School District has authorized two
charter schools and that under the Act those schools are "subject to district oversight." Br. of
Resp't at 33. However,the Act expressly limits that oversight. RCW 28A.710.180(2) provides,
in relevant part, that an authorizer's oversight of a charter school may not "unduly inhibit the
autonomy granted to charter schools." In my view, such limited oversight by authorizers is an
inadequate substitute for the right of school district voters to exercise "complete control ofthe
schools ... through their chosen agents," which this court recognized in Bryan, 51 Wash, at 504.
8
No. 94269-2
Madsen, J., dissenting
/
El Centra de la Raza at al. v. State
No. 94269-2
WIGGINS, J. (dissenting)—Suppose our legislature enacted a law providing
that for an act of the governor to become effective, the action must be ratified by a
commission of 10 appointed officials. There is no doubt such a law would be
unconstitutional. But that is the situation we have in the state charter school act—with
respect to charter schools, the constitutional responsibility of the superintendent of
public instruction to supervise all matters pertaining to public schools has been largely
reassigned to the state commission on charter schools, "an independent state
agency." RCW 28A.710.070(1). Although the superintendent is a member of the
commission on charter schools, the superintendent is 1 member of 11 and does not
act alone. Id. at (3)(a).
I agree with Justice Madsen's dissent that the charter schools act violates
article IX, section 2 of our state constitution. Other than my dissent and Justice
Madsen's dissent, I agree with the lead opinion.
ANALYSIS
Article III, section 22 of the Washington Constitution provides, "The
superintendent of public instruction shall have supervision over all matters pertaining
to public schools, and shall perform such specific duties as may be prescribed by law."
The key term for this case is the word "supervision," and I begin by defining it.
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
I. Meaning of "Supervision"
Webster's defines "supervision" as "the act, process, or occupation of
supervising : direction, inspection and critical evaluation : oversight,
SUPERINTENDENCE." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2296 (2002).
To "supervise" means "to coordinate, direct, and inspect continuously and at first hand
the accomplishment of : oversee with the powers of direction and decision the
implementation of one's own or another's intentions : superintend." Id.These words emanate action and authority. One who exercises supervision
directs, inspects, and critically evaluates. One who supervises coordinates, directs,
and inspects "continuously" in order to oversee the implementation of one's own or
another's intentions. As a matter of common sense and normal usage, the meaning
of "supervision" is to exercise control over other people in order to further a goal or
agenda.
In addition to the dictionary, we have the benefit of the opinion of the Attorney
General's Office (AGO), 1961 Op. Att'y Gen. No. 2, interpreting this same section of
our state constitution and what it means for the superintendent of public instruction to
supervise the public schools. The AGO was asked,"Would a statute providing that the
state superintendent of public instruction shall be subordinate to the state board of
education and be subject to its direction in matters pertaining to the public schools, be
constitutional?" Id. at 1. The AGO answered that the constitution "charges the state
superintendent in the broadest and most sweeping terms with the duty of supervision
'over all matters pertaining to public schools'" and, therefore, the legislature cannot
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
"change or modify the supervision [by the superintendent of public instruction] over all
matters relating to the public schools." Id. at 2.
The AGO explained more generally that the powers of an officer in an office
created by the legislature may be changed by the legislature, '"[bjut when an office is
created by the constitution, it cannot be enlarged or lessened in scope by any statute,
or be filled in any other manner than the manner directed by the constitution.'" Id. at
2-3 (quoting People ex rel. Ahern v. Bollam, 182 III. 528, 532, 54 N.E. 1032 (1899)).
In light of these principles, the AGO concluded, "[l]t is the opinion of this office
that any legislative enactment which would attempt to make the state superintendent
subordinate to the state board of education and subject to its direction in matters
pertaining to the public schools would be unconstitutional." Id. at 3.
In 1998, the AGO revisited these issues when asked several questions
regarding the powers of the superintendent of public instruction, including:
What grant of authority and responsibility is given to the Superintendent
of Public Instruction by the term "supervision" under this section? Does
the term "supervision" place limits on the authority of the Superintendent
of Public Instruction?"
1998 Op. Att'y Gen. No. 6, at 2.
The AGO distilled several principles from its review of the relevant authorities,
most relevant for this opinion that article III, section 22 imposes a limitation on the
legislature's power to infringe on the superintendent's powers of supervision. AGO
opinion no. 6 suggests this test for the constitutional limits on infringing on the
superintendent's powers:
If the proposal subordinates the Superintendent to some other officer or
body (as discussed in AGO 1961-62 No. 2) or shifts so many
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
responsibilities to other officers or agencies that the Superintendent no
longer "supervises" the public school system, the proposal is probably
unconstitutional. Otherwise, the Legislature is free to assign specific
roles as it thinks best.
Id. at 4.
The AGO opinions expand on our understanding of the meaning of
"supervision" by adding these additional indicia of an unconstitutional infringement on
the powers of the superintendent: an attempt to make the superintendent subordinate
to another entity, such as the state board of education, or shifting the supervision of
elements of the public school system out of the responsibilities of the superintendent.
In addition to dictionary definitions and AGO opinions, at least one of our cases
speaks to the importance of supervision. Great N. Ry. Co. v. Snohomish County, 48
Wash. 478, 484, 93 P. 924 (1908). Great Northern challenged the assessment of
railroad property by the county assessor and state board of tax commissioners,
arguing for a lower assessment by the state board. Id. at 479-80. The state board was
given "general supervision" over county assessors and county boards of equalization.
The county argued that the state board's general supervision over local assessors
and boards gave the state board only the power to confer and advise, issuing only
advisory opinions. Id. at 484. We unequivocally rejected the county's argument: "We
cannot believe that the legislature went through the idle formality of creating a board
thus impotent." Id. We approved Webster's definition of "supervision" as "overseeing:
inspection; superintendence." Id. at 485. Consistent with the language of our
constitution, dictionary definitions, and AGO opinions, our Great Northern decision
emphasizes the active role of one who supervises, including oversight and correction
of the supervised entity.
El Centra de la Raza v. State, No. 94269-2
Wiggins, J., dissenting
II. "Supervision" by the Superintendent of Public Instruction
I turn now to determining whether the charter school act unconstitutionally
infringes on the superintendent's power of supervision. Article III, section 22 of the
constitution broadly grants supervisory power to the superintendent: "The
superintendent of public instruction shall have supervision over all matters pertaining
to public schools."
This expansive language gives to the superintendent the power of oversight,
inspection, and correction, as well as all other functions inherent in supervision, of all
public schools. Charter schools are, of course, public schools. ROW 28A.710.010(5).
The issue for us to decide is whether the charter school act gives the superintendent
of public instruction supervision over charter schools. The answer is that with respect
to charter schools, the superintendent has only supervisory power shared with 10
other members of the charter school commission. The constitutional grant of
supervision to the superintendent calls for 1 individual to exercise supervision, not a
group in which the superintendent holds less than 10 percent of the vote.
Chapter 28A.710 RCW establishes the Washington State Charter School
Commission, which is by definition "an independent state agency." RCW
28A.710.070(1). Of the 11 members of the commission, 9 are appointed, some by
legislators and others by the governor, the chair of the state board of education, and
the superintendent of public instruction. RCW 28A.710.070(3). One of the powers of
this charter school commission is to exercise "supervision" over the charter schools:
"The commission shall, through its management, supervision, and enforcement of the
charter contracts and pursuant to applicable law, administer the charter schools it
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
authorizes in the same manner as a school district board of directors administers other
schools." RCW 28A.710.070(2)(emphasis added). In short, the charter school act
creates "an independent state agency" to which it delegates the power of supervision
of the charter schools, which unconstitutionally reduces the control of the
superintendent of public instruction from 100 percent strength conferred by the
constitution to a mere 9 percent share devised by legislative mandate, i.e., 1 vote out
of 11.
The constitutional violation embodied within the charter school act becomes
even clearer upon a review of the act. The act is built around the powers given to
"authorizers," which can authorize the creation and supervision of a charter school.
RCW 28A.710.010(3). The act defines two entities that can authorize and operate
charter schools: the charter school commission and a school district board of directors
wanting to include charter schools within the district. Id.] RCW 28A.710.080.
Authorizers have the power to "oversee the charter schools the entity has authorized."
RCW 28A.710.010(3). No authority is given to the superintendent to exercise any
oversight of the authorizer, which in the case of the charter school commission is "an
independent state agency." RCW 28A.710.070(1). Thus, because there is no authority
given to the superintendent to oversee the independent authorizers, the act deprives
the superintendent of the constitutional power to superintend.
Repeatedly, the charter school act gives powers to the charter school
commission and school district authorizers without giving any oversight to the
superintendent. Some of the powers are as follows.
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
Charter school authorizers must file an annual report describing a number of
subjects, Including "[ojngoing charter school oversight and evaluation." ROW
28A.710.100(3)(d). No authority Is given to the superintendent to exercise his or her
constitutional power of supervision.
The State Board of Education Is responsible for "overseeing" the performance
of school districts that are authorizers of charter schools. ROW 28A.710.120. The
charter school act provides for Imposition of sanctions and conditions on a poorly
performing authorlzer, but there Is no role for the superintendent In this process. See
id. Similarly, authorizers have the power to "continually monitor the performance and
legal compliance" of the charter schools they have authorized. RCW 28A.710.180(1).
"An authorlzer may conduct or require oversight activities that enable the authorlzer
to fulfill Its responsibilities under this chapter, Including conducting appropriate
Inquiries and Investigations." Id. at (2). There Is no role for the superintendent In this
process.
Applications to become a charter school must be submitted to and approved by
an authorlzer In accordance with statutory requirements. RCW 28A.710.140. The
charter school act makes no provision for the superintendent to supervise the
application process.
An authorlzer can terminate the contract of a charter school that falls to perform
appropriately. RCW 28A.710.200. Once again. It Is the authorlzer that makes this
decision and acts on it.
To recapitulate, the supervision of one particular kind of public school—the
charter school—has been reassigned by the charter school act to the state charter
El Centro de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
school commission. The superintendent of public instruction is not a part of the
supervision process, which is largely delegated to "authorizers." Nor can the
superintendent supervise the charter school commission—of which the
superintendent is 1 vote out of 11—because the Washington State Charter School
Commission is "an independent state agency" and therefore not subject to the
authority of the superintendent of public instruction. In Webster's words, the
superintendent has lost the ability to "oversee with the powers of direction and
decision the implementation of[the superintendentj's intentions."
To summarize, the charter school act has given the authorizers of charter
schools the following powers, among others: to "oversee" schools they charter, to
report annually on their "oversight" of the schools they charter, to continually monitor
the performance of their chartered schools, to review and act on applications from
entities wanting to open a charter school, and to terminate schools that fail to perform.
In the words of the AGO's 1998 opinion no. 6, the charter school act "shifts so many
responsibilities to other officers or agencies that the Superintendent no longer
'supervises'the public school system," and this shift of power from the officer clothed
with the constitutional power to supervise all aspects of the public schools is
unconstitutional. 1998 Op. Att'y Gen. No. 6, at 4.
The lead opinion points to language in the charter school act that seems to the
lead opinion to preserve the superintendent's power to supervise the charter schools:
'"Charter schools are subject to the supervision of the superintendent of public
instruction and the state board of education, including accountability measures, to the
same extent as other public schools, except as otherwise provided in this chapter.'"
8
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
Lead opinion at 22(quoting RCW 28A.710.040(5)). What the legislature has given to
the superintendent in the first 30 words of this statute, the legislature has taken back
in the final 7 words: "except as otherwise provided in this chapter." As discussed
above, what is "otherwise provided in this chapter" is that the charter school
commission, not the superintendent, is given the power of supervision of the charter
schools while section after section of the act gives powers of oversight and
supervision to the commission. Where the lead opinion sees "nothing in chapter
28A.710 RCW that qualifies or diminishes the superintendent's powers," id., I see
sections that bestow on the commission the powers constitutionally given to the
superintendent.
The lead opinion fails to offer any interpretation that might conceivably make
the charter schools act consistent with our constitution. The Washington Constitution
gives to the superintendent "supervision over all matters pertaining to public
schools ... ." Const, art. Ill, § 22. The legislature has given to the charter school
commission the power to exercise "supervision" of the charter schools, which are
public schools. RCW 28A.710.070(2). The charter school commission is "an
independent state agency." RCW 28A.710.070(1). This is an inherent conflict. The
superintendent cannot supervise an independent agency. The constitution provides
the key to resolving this deadlock: the power of supervision ultimately lies with the
superintendent, not with the commission.
The lead opinion attempts to justify this shift of the power of supervision by
pointing to language in the charter school act that makes charter schools "subject to
the supervision of the superintendent." RCW 28A.710.040(5). But this apparent grant
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
of power to the superintendent is immediately qualified by the clause "except as
otherwise provided in this chapter." Id.
The lead opinion attempts to trivialize the fact that the charter school act gives
powers to the charter school commission and school district authorizers without giving
any oversight of these powers to the superintendent. Lead opinion at 23-24. But the
lead opinion cannot escape the fact that the act specifically gives these powers to the
commission without clarifying that the superintendent also retains these powers. The
lead opinion fails to read the act as a whole. And as noted immediately above, the act
declares that the superintendent retains the power of supervision, "except as
otherwise provided in this chapter." RCW 28A.710.040(5). The delegation of specific
powers to the commission denies the powers to the superintendent.
The issue before us is a specific application of an undisputed principle of
constitutional law—powers that the constitution has given to a specific government
official cannot be taken and bestowed on another government actor. Or, as was stated
by a respected and influential judge and professor within a few years of our
constitutional convention of 1889, "[Sjuch powers as are specially conferred by the
constitution upon the governor, or upon any specified officer, the legislature cannot
require or authorize to be performed by any other officer or authority: and from those
duties which the constitution requires of him he cannot be excused by law." Thomas
M. CooLEY, A Treatise on the Constitutional Limitations Which Rest upon the
Legislative Power of the States of the American Union 135-36 (5th ed. 1998)
(1883). The issue is whether the constitution has conferred on the official a power that
the legislature has later tried to affix to a different official. That is exactly what we have
10
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
in this case. The fact that the superintendent nnay be left with other duties, see lead
opinion at 20-24, does not rectify taking from the superintendent the one duty
expressly mentioned in the constitution: supervision over "all matters pertaining to
public schools."
As a result, the charter school act is unconstitutional. Before I turn to the
consequence of the constitutional violation, I note that two sister states have held that
statutes similarly infringed on similar language in their constitutions. Thompson v.
Craney, 199 Wis. 2d 674, 699, 546 N.W.2d 123(1996); Powers v. State, 2014 WY 15,
318 P.3d 300,302. The constitutional provisions establishing the office of
superintendent of public instruction in both constitutions are similar to Washington's,
and the Supreme Courts of both states held that statutes infringing on the power of
supervision were unconstitutional.
The Wisconsin Constitution provides, "The supervision of public instruction
shall be vested in a state superintendent and such other officers as the legislature
shall direct; and their qualifications, powers, duties and compensation shall be
prescribed by law." Wis. Const, art. X, § 1. The Wisconsin Supreme Court held that
the original intent of the drafters was that the general supervision over the state
education system was within the responsibility and authority of the superintendent.
Thompson, 199 Wis. 2d at 685.
Wyoming's constitution provides,"The general supervision of the public schools
shall be entrusted to the state superintendent of public instruction [(SRI)], whose
powers and duties shall be prescribed by law." Wyo. Const, art. VII, § 14. The
Supreme Court of Wyoming held that although the legislature could alter the powers
11
El Centra de la Raza v. State, No. 94269-2
Wiggins, J., dissenting
and duties of the SPI, it could not deprive the SPI of its constitutionally vested power
of "general supervision of the public schools." Powers, 318 P.3d at 323.
III. Constitutionality of the Remaining Sections of the Act
When the court declares a part of a legislative act to be unconstitutional, the
remaining provisions of the act are not necessarily unconstitutional; the question is
whether the remaining provisions are severable from the unconstitutional provisions.
League of Women Voters of Wash. v. State, 184 Wn.2d 393, 411, 355 P.3d 1131(2015). "The test for severability is whether the unconstitutional provisions are so
connected to the remaining provisions that it cannot be reasonably believed that the
legislative body would have passed the remainder of the act's provisions without the
invalid portions, or unless elimination of the invalid part would render the remaining
part useless to accomplish the legislative purposes." Id. at 411-12.
The charter school act includes a severability clause: "If any provision of this
act or its application to any person or circumstance is held invalid, the remainder of
the act or the application of the provision to other persons or circumstances is not
affected." Engrossed Second Substitute S.B. 6194, § 305, 64th Leg., Reg. Sess.
(Wash. 2016). A severability clause indicates that the legislature would have passed
the statute without the severed language, but It Is not dispositive. The court must still
evaluate whether the act would have been passed even without unconstitutional
provisions.
The critical language for our purposes includes both the acknowledgement in
the act that the superintendent of public instruction's power of supervision was being
reduced—charter schools are subject to the superintendent's supervision "except as
12
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
otherwise provided in this chapter," RCW 28A.710.040(5)—as well as the provisions
allocating to the charter school commission powers of supervision without the
superintendent's oversight or participation. As discussed above, the act includes the
creation of the charter school commission as "an independent state agency"
responsible for "oversight," "management," "supervision," and administration of the
new charter schools, RCW 28A.710.070(1 )-(2). The "independen[ce]" of the
commission is reinforced by the requirement that all appointed members of the
commission "shall have demonstrated an understanding of and commitment to charter
schooling as a strategy for strengthening public education." RCW 28A.710.070(4).
The charter school act confers other powers on the commission that conflict
with the constitutional grant of these powers to the superintendent. As an "authorizer"
of charter schools, the commission has the power to create and supervise charter
schools, to report on its "oversight and evaluation" of the charter schools it authorized
(RCW 28A.710.010(3), .100(3)(d)): to continually monitor the charter schools it has
authorized (RCW 28A.710.180); to authorize the applications to become a charter
school(RCW 28A.710.140); and to terminate the contract of a charter school it has
authorized (RCW 28A.710.200).
The specificity of the act's allocation to a new commission of key responsibilities
in supervising the charter schools weighs against the conclusion that the act would
have been passed without the powers granted to the commission—powers that the
constitution confers on the superintendent.
On a more practical level, what statutory language would the court change in
the charter school act to make the act constitutional? One possibility would be to strike
13
El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
from RCW 28A.710.040(5) the language "except as otherwise provided in this
chapter," leaving the subsection to read, "Charter schools are subject to the
supervision of the superintendent of public instruction and the state board of
education, including accountability measures." How would that change affect the
remaining allocations of supervisory power over charter schools? Would the
commission continue to be solely responsible for creation, supervision, and
termination of the charter schools it authorizes? Similar questions abound. In short,
severing the offending language from the charter school act would leave the act
incomplete and unworkable without further legislative direction.
The unconstitutional delegation of supervisory powers to the charter school
commission cannot be segregated from the constitutional provisions. I would hold that
the act is unconstitutional and therefore respectfully dissent.
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El Centra de la Raze v. State, No. 94269-2
Wiggins, J., dissenting
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