El Centro de la Raza v. State

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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.

10
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

11
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.

12
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.

14
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

17
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.

18
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. 175

20
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

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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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