A legal victory against charter schools

September 16, 2015

The news was overshadowed by the Seattle teachers' strike that began less than a week later--where the union yesterday announced a tentative contract agreement that is now being considered by members--but supporters of quality public education won another important legal battle in Washington state this month.

On September 4, the Washington state Supreme Court ruled that charter schools shouldn't receive public funds because they are run by private entities rather than locally elected school boards. The decision overturns a state initiative, bankrolled by corporate school deform advocate Bill Gates and others, that passed in 2012 by a narrow margin. In the meanwhile, the Supreme Court also ruled that Washington schools are not adequately funded, as required by the state constitution--the state legislature has been fined $100,000 a day since mid-August for failing to come up with a plan to meet the court's requirements.

Wayne Au, an editor at Rethinking Schools and author of Unequal by Design: High-Stakes Testing and the Standardization of Inequality, was a plaintiff in the case. He spoke to Brian Jones about the significance of the ruling and its relationship to the teachers strike.

WHY IS this ruling significant? Why does it matter how the state defines what is a public school?

THE RULING here by the Washington state Supreme Court is significant because it essentially rebukes a major argument that charter school advocates and private school voucher proponents have been advocating for such a long time. The Supreme Court basically ruled that because charter schools here don't have any publicly accountable, publicly elected, essentially democratic oversight, charter schools aren't eligible to receive public tax dollars that would come from the state--money that originally goes to our actual public schools.

The reason why that's so significant is that charter school advocates have been trying to redefine the "public" in public education by saying that it's public money following the kid to the school, so that makes it a public school. What's critical about the ruling is it says that's not good enough. Just because it's public money doesn't make it a public school. You need to have public governance over the school in order to make it public.

Bill Gates opining on education "reform"
Bill Gates opining on education "reform"

I think this has had an effect nationally. I think charter advocates are reeling in the face of this decision. It's the first time that they've had their agenda stopped in its tracks.

CAN YOU talk about where this victory came from? I know you were involved as a plaintiff in the case.

WE DID organizing around this charter school law in Washington state for several years. The charter school law was essentially voted in by Washington state's citizens in 2012--because we have an initiative system. It was introduced as Initiative 1240.

We had built up a very strong base of organizers fighting against this initiative before it became law-–in the lead-up to the public election. In the end, it was voted into law by the narrowest of margins. We're talking a 50.7 percent majority. So it was a majority of roughly 40,000 votes out of a total of 3 million votes cast.

On top of that, there was close to $11 million invested in the campaign to get the charter school law passed here in Washington state. Bill Gates was the largest donor, along with folks like Eli Broad and the Waltons. So there was a lot at stake with this, and it took all that money just to barely eke out the votes to win during the election season.

When the lawsuit came together, it was very clear that we knew who the players were--who the folks were who were invested in fighting this law--based on our organizing. So, for instance, El Centro de la Raza was also a plaintiff in the lawsuit. El Centro is a community-based organization that has been working with Latinos and Chicanos in the Seattle area for decades. The League of Women Voters was also one of the plaintiffs--it came out very strongly opposed to the charter law when it was up as an initiative.

The Washington Education Association, our teachers' union at the state level, was also opposed to the initiative from the beginning, and they were also a plaintiff, as well as one of the school administration organizations. The suit included individuals as well--a couple of parents, acting on behalf of themselves and their children.

Then they asked me to be involved, because I was a vocal leader here in the fight against the charter school law. They also knew that it would be helpful to have a professor, someone who has expertise in this area also as a plaintiff in the lawsuit.

For me personally, it's been really important because I was able to concretely contribute to this lawsuit--not only as a plaintiff and lending my name, but also being able to add my expert opinion and understanding of education policy, and point them in the direction of research and the kind of arguments to make in terms of the legal team. So it ended up being a real big victory for me personally--but also a victory for those of us fighting against the privatization of public education.

NOW IT seems like there's a pushback to your pushback. I read that charter school advocates in Washington state were able to raise, in just a few days after the ruling, $14 million to try to keep state charter schools open. What do you think the prospects are for charter school supporters?

THERE'S GOING to be pushback--there already has been. The Seattle Times is very pro-corporate education reform, so they're pushing charter schools. They've been anti-union, and they've been pushing for value-added measurement [tying teachers' evaluation to test scores], so that's been their orientation here.

So in terms of the charter law, we've been getting creamed by the local media and the stories the Seattle Times has been putting out. You knew it was going to happen. Look, if Gates is willing to give $3 million toward the campaign...I mean, $14 million is a drop in the bucket for him or any of the other billionaires involved in supporting charter schools here and nationwide.

I expected that to happen, although they've been very secretive about who that money actually came from, so I think they might be a little worried about how it might look if it was Gates or Broad or Walton or any of those guys. The irony is they're still trying to call them public charter schools even though they're getting private money--which is really ironic to me because they're now private schools, right?

But there's pushback happening in terms of legal challenges. Some folks have been calling for a special session of the legislature to get back in and essentially fix the law so the funding can work--so they can re-open as "public schools" by their definition.

It would be the greatest of hypocrisies if the state legislature did that because of the context here in Washington state. The Washington state Supreme Court has already found the state legislature in contempt of court for not fully funding public education for the entire state. The court has actually been fining the state legislature $100,000 a day now for over a month for not meeting their legal obligations.

Added to that is the fact that the legislature has not honored another public initiative voted into law here in Washington state this last fall, which was a massive class-size reduction law. And so the state legislature might get back together and convene a special session essentially to save nine charter schools that are serving approximately 1,200 to 1,300 kids across the state--at the same that they aren't fully funding public education or reducing class sizes for the 1 million students we have in the state's public schools.

So there's pushback, but I think our local context is also limiting what their options are because there are a lot of political costs if they decide to just save nine schools.

YOU HAVE a new article in the Washington Post called "A perfect education storm in Washington state" describing all of this context. We should add to this, of course, that Seattle educators on strike right now with a really interesting list of demands-–not just better compensation for themselves, but things that are clearly aimed at improving schools, like trying to challenge patterns of racism in student punishment, caps on caseloads for school psychologists and guidance counselors, reducing high-stakes standardized testing in the schools. How is that fight in the city of Seattle connected to the statewide context?

IT'S CONNECTED in a couple of different ways. One is that it's really exciting to be here right now, having both the Seattle educators' strike and also a couple of other strikes around the state going on, and several locals came on the verge of striking based on their contract negotiations.

It's created this incredible energy. Not only do we get this major victory around charter schools, which the unions and a lot of us education activists have been organizing against for years, but now we have the Seattle educators striking, also around trying to push for quality education for all kids, fighting against racism in schools, limiting the amount of high-stakes standardized testing, putting caps on the caseloads for a lot of the professional staff working with students.

This isn't just a bread-and-butter strike. It's about creating quality public education, which is essentially what the fight around charter schools is as well. With all this happening together, that's why the piece ended up being called the "perfect storm"--because we have all of this energy amassed around the strike, around the charter school ruling, around the class-size initiative, and around the Washington state Supreme Court ruling in favor of fully funding public education.

I think it's important to note that this all is happening in Bill Gates' backyard. The Gates Foundation is based in Seattle. Gates lives in the region. Gates has been the one pushing charter schools, both here and around the country, in addition to all sorts of other things-–he's been pushing high-stakes testing everywhere and the tying of tests to teacher evaluations.

His policies are having an impact on our kids and our schools. That's something else I forgot to add about the Seattle educators' strike--they've been bargaining for mandatory recess. That's an exact outgrowth of the hyper-focus on high-stakes testing, because schools are prioritizing extra classroom time in place of recess and lunch, despite what we know to be the importance of recess and lunch on kids' learning and overall health and well-being.

So to have all this going on right here where the Gates Foundation is based is also a political statement which I think is meaningful around the country and possibly even around the world. If he can't control what's happening with his reforms right here, what does that mean for folks elsewhere?

We have this massive energy and organizing happening, and I think it's really exciting. We've got something great going on--I'm hoping we can just carry this momentum forward.

Transcription by Rebecca Anshell Song

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