NO SEA DEFENDANT STATE OF WASHINGTON'S REPLY IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT. Plaintiffs, STATE OF WASHINGTON,

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1 STATE OF WASHINGTON KING COUNTY SUPERIOR COURT 9 EL CENTRO DE LA RAZA, a Washington non-profit corporation; LEAGUE OF 10 WOMEN VOTERS OF WASHINGTON, a Washington non-profit corporation; 11 WASHINGTON ASSOCIATION OF SCHOOL ADMINISTRATORS, a 12 Washington non-profit corporation; WASHINGTON EDUCATION 13 ASSOCIATION, a Washington non-profit corporation; INTERNATIONAL UNION 14 OF OPERATING ENGINEERS 609; AEROSPACE MACHINISTS UNION, 15 IAM&AW DL 751; WASHINGTON STATE LABOR COUNCIL, AFL-CIO; 16 UNITED FOOD AND COMMERCIAL WORKERS UNION 21; WASHINGTON 17 FEDERATION OF STATE EMPLOYEES; AMERICAN FEDERATION OF 18 TEACHERS WASHINGTON; TEAMSTERS JOINT COUNCIL NO. 28; 19 WAYNE AU, PH.D., on his own behalf and on behalf of his minor child; PAT 20 BRAMAN, on her own behalf; and DONNA BOYER, on her own behalf and on behalf of 21 her minor children, NO SEA DEFENDANT STATE OF WASHINGTON'S REPLY IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT 22 Plaintiffs, V. STATE OF WASHINGTON, Defendant. STATE OF WASHINGTON'S REPLY IN SUMMARY JUDGMENT ATTORNEY GENERAL OF WASHINGTON Olympia, WA

2 1 TABLE OF CONTENTS 2 I. INTRODUCTION II. REPLY TO STATEMENT OF FACTS III. ARGUMENT A. Plaintiffs Must Prove Beyond a Reasonable Doubt That the Charter Schools Act is Unconstitutional in All Circumstances B. Public Charter Schools Do Not Violate Article IX, Section The constitutional text, case law, and historical practice refute Plaintiffs' novel argument that non-common, public schools must serve only special 9 populations of students Charter schools are part of the general and uniform system of public schools and they provide a "program of basic education" Charter schools provide specialized programs to meet the special needs 12 of a particular population at risk students C. Charter Schools Are Constitutionally Funded From the Opportunity Pathways Account, and Speculation That They Might be 14 Unconstitutionally Funded in the Future Fails to State a Justiciable Claim D. The Charter Schools Act Does Not Delegate the Task of Defining the "Program of Basic Education" and There Are Substantial Safeguards to 17 Protect Against Arbitrary Action E. - The Superintendent of Public Instruction Has Supervisory Authority Over Charter Schools That Satisfies Article III, Section F. The Charter Schools Act Complies with Article II, Section IV. CONCLUSION STATE OF WASHINGTON'S REPLY IN i ATTORNEY GENERAL OF WASHINGTON 1125 Washington street SE

3 1 TABLE OF AUTHORITIES 2 Cases 3 AllianceOne Receivables Mgmt., Inc. v. Lewis, 180 Wn.2d 389, 325 P.3d 904 (2014) Barry & Barry, Inc, v. State Dep't of Motor Vehicles, 5 81 Wn.2d 155, 500 P.2d 540 (1972) Braam v. State, 150 Wn.2d 689, 81 P.3d 851 (2003) Brown v. State, Wn.2d 254, 119 P.3d 341 (2005) Citizens for Responsible Wildlife Mgmt., 149 Wn.2d Federal Way Sch. Dist. No. 210 v. State, Wn.2d 514, 219 P.3d 941 (2009)...4, 5, 6, 8, 12 League of Women Voters (LWV) v. State, 184 Wn.2d 393, 355 P.3d 1131 (2015)...11, McCleary v. State, Wn.2d 477, 9 P.3d 227 (2012)...3, 5, 9, Mitchell v. Consol. Sch. Dist. No. 201, 17 Wn.2d 61, 135 P.2d 79 (1943) Northshore Sch. Dist. v. Kinnear, Wn.2d 685, 530 P.2d 178 (1974)...5, Pagnotta v. Beall Trailers, 99 Wn. App. 28, 991 P.2d 728 (2000) Sch. Dist. No. 20, Spokane Cty. v. Bryan, Wash. 498, 99 P. 28 (1909)...2, 3, 7, Seattle Sch. Dist., 90 Wn.2d 476, 585 P.2d 71 (1978) State v. Marohl, Wn.2d 691, 246 P.3d 177 (2010)...13, State v. Sullivan, 143 Wn.2d 162, 19 P.3d 1012 (200 1) To-Ro Trade Shows v. Collins, 144 Wn.2d 403,27 P.3d 1149 (2001) STATE OF WASHINGTON'S REPLY IN SUMMARY JUDGMENT 11 ATTORNEY GENERAL OF WASHINGTON PO Boa Olympia, WA

4 1 Tunstall v. Bergeson, 141 Wn.2d 201, 5 P.3d 691 (2000)...3, 4, 7, 10, 12, 16 2 Tyler Pipe Indus. v. Dep't of Revenue, 3 96 Wn.2d 785, 638 P.2d 1213 (1982) United Chiropractors of Wash., Inc. v. State, 90 Wn.2d 1, 578 P.2d 38 (1978)...17, 18, 22 5 Walker v. Munro, Wn.2d 402, 879 P.2d 920 (1994) Constitutional Provisions 8 Const., Art. III, Const., Art. IX, , 3, 4, 5, 6 10 Const., Art. IX, Fla. Const., Art. IX, Statutes 13 RCW 28A RCW 28A RCW 28A , RCW 28A (9) RCW 28A , 9, RCW 28A , 10, RCW 28A RCW 28A (3) RCW 28A RCW 28A RCW 28A (1) RCW 28A RCW 28A (1)...10 RCW 28A (1)(b)...9 STATE OF WASHINGTON'S REPLY IN iii ATTORNEY GENERAL OF WASHINGTON

5 1 RCW 28A (2)(b) RCW 28A (3) RCW 28A (5) RCW 28A (2) RCW 28A (3)(ii) RCW 28A RCW 28A , 17 8 RCW 28A (2) RCW 28A (2) RCW 28A RCW 28A RCW 28A (5)...12, RCW 28A RCW 28A (1), (3) RCW 28A (2) RCW 28A RCW 28A RCW 28A (2), (3) RCW 28A RCW RCW RCW RCW RCW RCW RCW STATE OF WASHINGTON'S REPLY IN iv ATTORNEY GENERAL OF WASHINGTON

6 1 RCW RCW RCW RCW RCW (1)(c) STATE OF WASHINGTON'S REPLY IN SUMMARY JUDGMENT V ATTORNEY GENERAL OF WASHINGTON PO Bo Olympia, WA

7 1 I. INTRODUCTION 2 Plaintiffs' arguments ignore the facts, misrepresent the law, and largely refute 3 themselves. The Court should deny their Motion and grant the State's. 4 Plaintiffs' primary argument is that charter schools violate Article IX, section 2's 5 requirement that the State create "a general and uniform system of public schools." Plaintiffs 6 concede that, since statehood, the Legislature has created a wide variety of public schools. But 7 they claim that the only schools the Legislature may create beyond common schools are 8 schools "intended to serve discrete student populations with special needs." Pl. Resp. at 7. 9 Plaintiffs provide no citation for this claim, and with good reason: it runs directly contrary to 10 the constitutional text (which allows, for example, "high schools"), to our State's longstanding 11 practice of creating new school programs open to all (like Running Start and skill centers), and 12 to precedent. See, e.g., Sch. Dist. No. 20, Spokane Cty, v. Bryan, 51 Wash. 498, 99 P. 28 (1909) 13 (approving the Legislature's creation of "normal schools" that served the general population of 14 children). Plaintiffs' claim is also utterly illogical. In their view, a specialized school open only 15 to a limited category of students like the University of Washington program for highly 16 capable students is perfectly consistent with a general and uniform system, but charter 17 schools, which in Plaintiffs' own words are "open to all" and "required to meet the same 18 educational goals and offer instruction in the learning requirements applicable to common 19 schools," are not. Pl. Resp. at 9. The argument refutes itself. 20 Plaintiffs also get the facts and the law wrong in arguing that charter schools are too 21 different from common schools to satisfy the uniformity requirement. It is just false that 22 charter schools are exempt from providing statutorily-required components of the program of 23 basic education, and there is no evidence that they impose materially-different discipline than 24 common schools. 25 Plaintiffs admit that charter schools do not receive state general fund dollars. They even 1 identify future options for funding charter schools, proving their argument is not yet ripe. STATE OF WASHINGTON'S REPLY IN ] ATTORNEY GENERAL OF WASHINGTON

8 I Because charter schools are currently appropriated lottery funds, Plaintiffs' speculative funding 2 challenge fails. And Plaintiffs have failed to cure the defects in their remaining claims. This 3 Court should grant the State's summary judgment Motion. 4 II. REPLY TO STATEMENT OF FACTS 5 Washington's education system is not frozen in the 1890s, when most schools operated 6 only three months a year and almost no students graduated from high school. State's Mot. at Under our Supreme Court's jurisprudence, the Legislature has broad authority to ensure 8 that the system of public education in Washington evolves to meet contemporary needs. 9 McCleary v. State, 173 Wn.2d 477, 5, 9 P.3d 227 (2012). And since our State's founding, 10 the Legislature has created a broad range of non-common, public schools that were open to the I l general population. E.g., Laws of 1897, ch. 118, 1, 190 (technical schools, high schools, 12 normal schools for teacher-training, and model training schools within the normal schools). 13 While Plaintiffs correctly explain that normal schools were created to educate 14 teachers-in-training, they ignore that public school children also attended the mandatory, 15 embedded model training schools at which teachers-in-training gained practical experience. 16 Laws of 1897, ch. 118, 219, 224; Frederick E. Bolton, History of Education in Washington, ; Bryan, 51 Wash. at 500 (model training school students chosen for lack of special needs). 18 And the Bryan Court held that these model schools were public schools that could be funded 19 from the General Fund, just not from common school funds. Bryan, 51 Wash. at It is also indisputable that high schools have always been open to all, even before 21 statehood. E.g. Laws of 1897, ch. 118, 64. Their curriculum was general, not specialized. 22 Bolton at 181 (listing courses including arithmetic, literature, history, grammar, civil 23 government, algebra). Thus, there is no historical basis for Plaintiffs' claim that non-common, 24 public schools can admit only "discrete student populations with special needs." Pl. Resp. at Similarly, there is no basis for Plaintiffs' claim that charter schools fail to serve a discrete population: at-risk students. The authorized schools do serve at-risk students, are STATE OF WASHINGTON'S REPLY IN 2 ATTORNEY GENERAL OF WASHINGTON 1125 Washington street SE

9 1 located in areas with high concentrations of low-income households, and offer specific services 2 for at-risk students. Halsey Decl., 14 & Att. 1; 2d Halsey Decl., 16 and Att 1 (Resolutions 3 finding charter schools designed to serve at risk students); Anderson Decl ; 8-17 ( intent 4 to "[create] diverse options for families in disadvantaged neighborhoods"). 5 III. ARGUMENT 6 A. Plaintiffs Must Prove Beyond a Reasonable Doubt That the Charter Schools Act is Unconstitutional in All Circumstances 7 Plaintiffs seek declaratory judgment and prospective injunctive relief that the Charter 8 Schools Act is facially unconstitutional. Amended Compl., Prayer for Relief. Thus, they must 9 show the Act is unconstitutional beyond a reasonable doubt in all circumstances. Tunstall v. 10 Bergeson, 141 Wn.2d 201, 221, 5 P.3d 691 (2000). 11 Far from meeting this burden of proof, Plaintiffs frequently raise arguments that, even 12 if valid, would not warrant the remedy they seek. For example, Plaintiffs speculate that charter 13 schools might be funded unconstitutionally under some future legislative appropriation, they 14 claim one charter school does not provide all required services for English Language Learners, 15 and they assert that it will be unconstitutional if charter schools suspend and expel their at-risk 16 students less frequently than traditional common schools. If Plaintiffs were right on the facts 17 and the law, which they are not, they still would be entitled only to limited remedies: a future 18 finding invalidating any unconstitutional appropriation; a finding that one charter school must 19 provide more bilingual instruction; or a finding that charter schools must suspend and expel 20 students as frequently as common schools. They would not be entitled to the drastic remedy 21 they seek a declaration that the entire Act is unconstitutional B. Public Charter Schools Do Not Violate Article IX, Section 2 24 Plaintiffs' central claim is that charter schools violate the requirement that the State 25 provide a "general and uniform system of public schools." But they never quote what our Supreme Court has said that requirement means. "`A general and uniform system... is... one STATE OF WASHINGTON'S REPLY IN 3 ATTORNEY GENERAL OF WASHINGTON PO Bos SUMMARY JUDGMENT Ofympia, WA

10 I in which every child in the state has free access to certain minimum and reasonably 2 standardized educational and instructional facilities and opportunities... administered with 3 that degree of uniformity which enables a child to transfer from one district to another within 4 the same grade without substantial loss of credit or standing..."' Federal Way Sch. Dist. No v. State, 167 Wn.2d 514, 524, 219 P.3d 941 (2009) (quoting Northshore Sch. Dist. v. 6 Kinnear, 84 Wn.2d 685, 729, 530 P.2d 178 (1974)). All students are entitled to the 7 constitutionally-required basic education, but the constitution does not limit how it is delivered. 8 McCleary, 173 Wn.2d at 486; Seattle Sch. Dist., 90 Wn.2d 476, 520, 585 P.2d 71 (1978); 9 Tunstall, 141 Wn.2d at In McCleary, the Supreme Court held that the constitutional duty to define "basic 11 education" was satisfied when the Legislature adopted the four learning goals in RCW 12 28A and required the EALRs. McCleary, 173 Wn.2d at 523. It is within the 13 Legislature's discretion to require basic education components above this constitutional 14 minimum. But the Supreme Court has recognized that additional elements in the Basic 15 Education Act are statutorily, but not constitutionally, required. Brown v. State, 155 Wn.2d , 1, 119 P.3d 341 (2005). More importantly, "[T]he State is not obligated to provide an 17 identical education to all children within the state....," Tunstall, 141 Wn.2d 220, so 18 variations in coursework, teaching methods, or instruction time above the statutory minimum, 19 for example, are by no means fatal to an innovative public school program. 20 Charter schools satisfy article IX, section 2 by providing a "program of basic 21 education" including instruction in the EALRs and all of the components of RCW 22 28A ,.210, and.220. State's Mot. at 9, 25. Among other requirements, charter schools 23 and their students are assessed in the same way as other public schools, they must meet public 24 school accountability measures, their teachers must be state-certificated, and they must comply 25 with state and federal laws regarding civil rights and discipline and submit to Superintendent supervision. RCW 28A ; Halsey Decl., Att 1; Anderson Decl. Att. 2. These STATE OF WASHINGTON'S REPLY IN 4 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Sheet SE

11 I requirements ensure that charter school students meet the Federal Way standard of uniformity. 2 See 167 Wn.2d at The constitutional text, case law, and historical practice refute Plaintiffs' novel argument that non-common, public schools must serve only special 4 populations of students 5 Plaintiffs now assert that because charter schools are open to all and provide a broad 6 education aimed at "the same educational goals... [as] common schools," they are somehow 7 non-uniform. Pl. Resp. at 9. This argument turns the concept of uniformity on its head by 8 essentially arguing that charter schools are too similar to traditional common schools to 9 properly be part of the general and uniform public school system. Pl. Resp. at 6-9. This theory is unhinged from any legal definition of the general and uniform public school system that appears in the case law. See Federal Way, 167 Wn.2d at 524. Plaintiffs may, as a matter of 12 policy, disagree with the idea that charter schools offer some families an alternative choice, but 13 that policy debate is for the Legislature to resolve. 14 Plaintiffs flagrantly misrepresent the nature of this case when they say the question 15 Presented is whether the Legislature may create a new set of schools "to replace" common 16 schools. Pl. Resp. at 6. The Legislature's authorization of a maximum of 40 charter schools 17 statewide is clearly not intended to "replace" the 2,000+ common schools in Washington. But 18 setting factual exaggerations aside, Plaintiffs are wrong when they assert that "the Washington 19 Constitution requires that only common schools can provide the general basic education." See 20 Pl. Resp. at Article IX, section 2 says "The legislature shall provide for a general and uniform 22 system of public schools. The public school system shall include common schools, and such 23 high schools, normal schools, and technical schools as may hereafter be established." Nothing 24 in this text supports the notion that only common schools may provide a general education 25 open to all. The "general and uniform" requirement applies to the "system of public schools," not just common schools. STATE OF WASHINGTON'S REPLY IN 5 ATTORNEY GENERAL OF WASHINGTON

12 I Similarly, Plaintiffs' description of "high schools, normal schools, and technical 2 schools" as schools that did not historically provide a "general" basic education is untenable. 3 As explained above, the mandatory, model training schools embedded in the normal schools 4 educated the general population of students with a typical curriculum. Laws of 1897, ch. 118, 5 219, 224; Bolton at 282; Bryan, 51 Wash. at 500. The Bryan Court allowed these schools to 6 exist as public schools, if not common schools. Bryan, 51 Wash. at Similarly, high 7 schools have always been open to all and their early curriculum was not specialized. E.g. Laws 8 of 1897, ch. 118, 64; Bolton at Moreover, since soon after statehood, the Legislature has defined the public school 10 system to include a wide spectrum of non-common, public school alternatives not limited to 11 special populations or special curricula. Laws of 1909, ch. 97, 1 (public school system 12 embraced, in addition to common schools, "technical schools... normal schools,... training 13 schools... and such other educational institutions as may be established by law and 14 maintained at public expense."). The modern definition of "public school" similarly includes 15 common schools, charter schools, and "those schools and institutions of learning having a 16 curriculum below the college or university level as now or may be established by law and 17 maintained at public expense." RCW 28A The Legislature has never endorsed the 18 limitation that Plaintiffs suggest. There is no historical or modern basis for Plaintiffs' claim 19 that non-common, public schools can only exist if they admit only "discrete student 20 populations with special needs." Pl. Resp. at Plaintiffs can also cite no case supporting their restrictive interpretation of article IX. 22 Instead, our Supreme Court has defined a "general and uniform" system as "one in which 23 every child in the state has free access to certain minimum and reasonably standardized 24 educational and instructional facilities and opportunities... administered with that degree of 25 uniformity which enables a child to transfer from one district to another within the same grade without substantial loss of credit or standing." Federal Way, 167 Wn.2d at 524. This definition STATE OF WASHINGTON'S REPLY IN 6 ATTORNEY GENERAL OF WASHINGTON

13 offers no indication whatsoever that the Legislature is barred from offering programs open to all that aim for "the same educational goals" as common schools. Pl. Resp. at 9. Indeed, Plaintiffs' vision that the Legislature can comply with article IX only by offering "specialized educational opportunities to a limited student population" is in enormous tension with our Supreme Court's definition of a general and uniform system. How can the hallmark of acceptable uniformity be "specialized educational opportunities" open "to a limited student population" when the system must include "reasonably standardized instructional facilities and opportunities" and allow students to transfer "without substantial loss of credit"? Plaintiffs cannot reconcile their position with precedent. It is true that the Tunstall Court recognized that within a constitutionally valid public school system, there must be programs that will satisfy the special needs of discrete populations given the rights conferred under article IX, section 1. Id. at But nothing in Tunstall holds, or even remarks, that the youth offender programs fell outside of the general and uniform system or that non-common, public schools violate article IX if they are open to all students who choose them. Id. at And it would be deeply troubling to require that a public school program restrict admission to be constitutionally valid. The Tunstall Court did not limit "general" basic education under the basic education act to common schools only. Id. No Washington court has ever done that, and courts would be hard-pressed to draw a principled line between "general" and "specialized" basic education. 2. Charter schools are part of the general and uniform system of public schools and they provide a "program of basic education" Plaintiffs' next claim that even if the constitution allows public schools that offer a broad education and are open to all, charter schools differ too greatly from traditional common schools to qualify as part of a "general and uniform system." Here again, however, Plaintiffs ignore what our Supreme Court has actually said about what qualifies as a "general and STATE OF WASHINGTON'S REPLY IN SUMMARY JUDGMENT 7 ATTORNEY GENERAL OF WASHINGTON Olympia, WA

14 I uniform system," and instead invent their own definition that they claim public charter schools 2 fail to meet. 3 Plaintiffs never apply the Federal Way definition of the "general and uniform system" 4 or explain why charter schools fall short. To begin with, public charter schools do not deny any 5 child free access to reasonably standardized educational opportunities fundamental to a basic 6 education. See Federal Way, 167 Wn.2d at 524. Federal Way held that the basic education 7 statute's 1) uniform educational content, 2) statewide teacher certification, 3) instructional hour 8 requirements, and 4) the statewide assessment system satisfy the Federal Way standard. Id. at Plaintiffs do not dispute that charter schools' teachers must be certificated, they meet 10 instructional hour minimums, and they fully participate in the state assessment system. Pl. 11 Resp. at Charter schools also provide their students with the constitutionally-required "uniform 13 educational content" through compliance with the four learning goals in RCW 28A and instruction in the EALRs. See McCleary, 173 Wn.2d at 523; RCW 28A (2)(b). The amendments to the Act expressly require that charter schools must provide a "program of 16 basic education," RCW 28A (1)(b), which by statutory definition includes all of the 17 components in RCW 28A State's Mot. at 25-; RCW 28A (9) and (2)(a). Legislative definitions reveal the Legislature's intent as to the meaning of a term. 19 See State v. Sullivan, 143 Wn.2d 162, , 19 P.3d 1012 (2001). Plaintiffs assert that the 20 definition of "program of basic education" does not apply outside of chapter RCW 28A.150, 21 but RCW 28A requires that all of the provisions in Title 28A RCW be construed in 22 pari materia even if they were enacted separately. See also, e.g., 41liance0ne Receivables 23 Mgmt., Inc. v. Lewis, 180 Wn.2d 389, 393, 325 P.3d 904 (2014) (Courts must consider a 24 provision within the context of the entire statutory scheme to determine its plain meaning). 25 Plaintiffs offer no credible alternative meaning for this term of art. STATE OF WASHINGTON'S REPLY IN 8 ATTORNEY GENERAL OF WASHINGTON

15 I Plaintiffs also continue to ignore the express requirements of the charter contracts. In 2 practice, the charter authorizers have always required compliance with RCW 28A , 3 even before the Act's amendment. 2d Halsey Decl. 9; Halsey Decl. at 13, Att. 3 at 24, 8.3; 4 Anderson Decl., Att. 1 at 6, clause 6.B.3; 5 (posting of all Commission-school contracts).' 6 Plaintiffs continue to assert that charter schools are not subject to "the vast majority of 7 uniform common school laws," conflating the common with public schools and improperly 8 linking uniformity with common schools. The argument again ignores charter contracts, 9 RCW 28A (3), which require charter schools to comply with all applicable state and 10 federal discipline laws. Halsey Decl ; Anderson Decl., IT 3-5. The only discipline 11 argument Plaintiffs articulate is that charter schools may suspend and expel their students less 12 often than traditional common schools, and this somehow destroys the public school system's 13 uniformity. Pl. Resp. at Appleseed and Team Child conducted a statewide study that concluded, among other 15 things: 1) suspension and expulsion are associated with significantly higher drop-out rates, 2) 16 exclusionary discipline causes a significant loss of instructional time, 3) students of color were times more likely to be disciplined than their white peers, and 4) low income students were 18 also disproportionately disciplined. Reclaiming Students, Executive Summary, available at: 19 Consistent with 20 these findings, the Legislature has encouraged school districts to reduce both the number and 21 length of suspensions. RCW 28A Even where firearms are involved, the Legislature 22 allows schools to evaluate expulsion on a case by case basis. RCW 28A (1). Charter 23 schools have good reason to treat exclusionary discipline as a last resort and their policies are 24 consistent with flexibility the Legislature gives other schools. 25 t All hyperlinks were last visited January 20, STATE OF WASHINGTON'S REPLY IN 9 ATTORNEY GENERAL OF WASHINGTON 1125 Washington street SE ro Box 40100

16 I Plaintiffs contend that charter schools are exempt from certain compulsory coursework 2 in RCW 28A.230, Pl. Resp. at 13-14, but the Legislature has also provided for waivers of 3 coursework requirements, reflecting flexibility in the system. E.g., RCW 28A (3)(small 4 district waiver from career and technical education course). The Constitution does not require 5 identical courses. Tunstall, 141 Wn.2d at 220, 223. Moreover, Plaintiffs fail to prove that the 6 coursework they raise is not being covered in charter schools. See, e.g., 7 (Social Studies 8 EALRs requiring study of Pacific Northwest Tribes); Halsey Decl., T 4(e)-(f), Att. 3 at 13 (high 9 school college and career prep provided); 2d Halsey Decl. 8 (discussing ELL services). 10 Finally, even if this Court were to find some deficiency, the appropriate prospective remedy 11 would be to order charter schools to provide any missing courses or services the Court believes 12 to be constitutionally required, not declare the entire Act unconstitutional. Tunstall, 141 Wn.2d 13 at Plaintiffs also continue to assert that charter schools' governance is non-uniform 15 because, Plaintiffs say, charter schools are not accountable to local school boards or elected 16 officials. Pl. Resp. at But Plaintiffs fail to address the language in LWV and Bryan that 17 establishes that, while local school board governance may be a requirement for common 18 schools, it is not a requirement for public schools. League of Women Voters (L WV) v. State, Wn.2d 393, 405, 355 P.3d 1131 (2015); Bryan, 51 Wash. at (model training 20 schools, not governed by school boards, were public schools that could be funded with public 21 funding). Even Northshore, 84 Wn.2d at 728, a case Plaintiffs cite, explained: "we have ruled 22 only that the educational system must be uniform in terms of the prescribed course of study 23 and educational progression from grade to grade." The uniformity of administration discussed 24 in that case is only administration "with that degree of uniformity which enables a child to 25 transfer from one district to another..." This is a far cry from requiring local school board control over every public school, especially in the absence of an express constitutional STATE OF WASHINGTON'S REPLY IN 10 ATTORNEY GENERAL OF WASHINGTON 1125 Washington street SE

17 I provision like Florida's that requires school board governance of all public schools. E.g., Fla. 2 Const., Art. IX, 4 ("The school board shall operate, control, and supervise all free public 3 schools within the school district... "). 4 Plaintiffs also fail to explain adequately why public charter schools supposedly destroy 5 the uniformity of our public school system when the wide array of alternative public school 6 programs that students can currently choose to attend do not, even though many of those 7 existing programs are operated by government or nonprofit entities under contract with the 8 State or with local school districts, just like charter schools. Anderson Decl., 117, 13 (Spokane 9 virtual learning); Meierbachtol Decl. TJ 30-31, (e.g. high schools housed at technical 10 colleges, ALE programs, online learning programs, Running Start). Finally, Plaintiffs ignore I I that two charter schools are directly accountable to a local school board and all are accountable 12 to the Superintendent, who can and does withhold payments when requirements have not been 13 satisfied. E.g., Anderson Decl., Att. 1 (contract with Spokane School District); RCW 14 28A (5) (Superintendent supervision); WAC (withholding funds pending 15 Superintendent's investigation). And unlike traditional common schools, the Legislature could 16 eliminate charter schools at any time Charter schools provide specialized programs to meet the special needs of a particular population at risk students 18 Even if the constitution limited public schools to those that meet specialized needs of 19 particular subsets of children, which it does not, charter schools provide specialized services to 20 students who the Legislature concluded needed options beyond traditional schools. By statute, 21 charter schools are specifically targeted to serve "at risk" students, defined in the Act as 22 students who have an academic or economic disadvantage. RCW 28A "Authorizers 23 shall give preference to applications for charter schools that are designed to enroll and serve at- 24 risk student populations." RCW 28A.71'0.140(2). Many, if not all, of the existing charter 25 schools are intentionally located in neighborhoods with higher concentrations of students of STATE OF WASHINGTON'S REPLY IN 11 ATTORNEY GENERAL OF WASHINGTON

18 I low socioeconomic status. Halsey Decl., Att. 1, e.g., Summit Application (South Seattle 2 neighborhood where 60 percent of students are low income); Anderson Decl., 4,-5, 17;. 3 Charter school applicants are evaluated on how they will serve special populations and at risk 4 youth. Halsey Decl., Att. 2 at 13, 15, Successful applicants must specifically describe a 5 plan for outreach targeting at risk students. Halsey Decl., Att. 2 at 21. And all of the existing 6 charter school programs have been found to be "designed to enroll and serve at-risk student 7 populations." 2d Halsey Decl., Att. 1 (Commission Resolutions; Anderson Decl., 4-5, 10 8 (Spokane effort to create diverse options in disadvantaged neighborhoods). The charter schools 9 currently have between 31 percent and 79 percent low income students, with five schools at 10 more than 50 percent. Halsey Decl, Att. 1; Anderson Decl. at The record reflects that 11 charter schools are designed' to meet, and are meeting, the special needs of their at risk 12 students. 13 C. Charter Schools Are Constitutionally Funded From the Opportunity Pathways Account, and Speculation That They Might be Unconstitutionally Funded in the 14 Future Fails to State a Justiciable Claim 15 Plaintiffs offer no serious argument that the funding mechanism for charter schools is 16 currently unconstitutional. Instead, they ask this Court to assume the Legislature will make an 17 unconstitutional appropriation sometime in the future, even though they admit that the 18 Legislature has multiple options for further funding of charter schools. Plaintiffs' invitation to 19 assume unconstitutional future action is exactly the opposite of this Court's proper role. See 20 Tunstall, 141 Wn.2d at 220 (statute presumed constitutional). Under the plain language of the 21 Charter Schools Act, charter schools are funded from the Opportunity Pathways Account, 22 which is funded solely with lottery revenue. RCW 28A Where, as here, "statutory 23 language is unambiguous" courts must "accept the legislature means exactly what it says." 24 State v. Marohl, 170 Wn.2d 691, 698, 246 P.3d 177 (2010). It is undisputed that charter 25 schools are no longer funded from any money previously appropriated to common schools or 1 from state general fund dollars. See Dismissal Order at 12-13; ef. RCW 28A ; RCW STATE OF WASHINGTON'S REPLY IN 12 ATTORNEY GENERAL OF WASHINGTON

19 A ; see also RCW (1)(c); Crawford Decl., 29; Pl. MSJ at 12:19-20; Salvi Decl., 5:17-18; Pedersen Decl., 19; Pl. Resp. at 22: Thus, Defendants are entitled to summary judgment on Plaintiffs' funding claims. Nevertheless, Plaintiffs speculate that at some point general funds or constitutionally restricted common school funds might be used to fund charter schools. See Pl. Resp. at Plaintiffs' argument reveals that their funding claim is grounded solely in speculation, which cannot establish a claim for declaratory or injunctive relief. See To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001); Tyler Pipe Indus. v. Dep't of Revenue, 96 Wn.2d 785, 796, 638 P.2d 1213 (1982). Plaintiffs ask this Court to conclude it is inevitable that the more than $250 million biennially available in the Opportunity Pathways Account will be insufficient to fund charter schools in the next biennium. See Pl. Resp. at 22-29; Crawford Decl. 34. Plaintiffs offer nothing remotely approaching proof beyond a reasonable doubt that this outcome is inevitable; indeed, current charter funding and the limitations on charter expansion demonstrate that the Opportunity Pathways Account will be more than adequate to cover charter school funding in the next biennium and beyond. See RCW 28A (2) (no more than eight charter schools established per year); Halsey Dec. 6-9 (six3 Commission-authorized schools currently operating, three to open in ; decline of applications from 19 in first round to two in last round); Crawford Decl. 38 (almost $11 million appropriation to charter schools FY 2016). Yet Plaintiffs ask this Court to assume, based on a series of hypothetical intervening events, that The Permanent Common School Fund is not relevant to the funding issues raised in this case. The principal of that fund cannot be spent, and article IX, section 3 provides that interest and investment income from the permanent fund must now be used for common school construction. Neither the principal nor the interest is currently used for the operation of any public school. Id. In addition, there is currently no "common school fund." Historically, beginning in the mid-1930s, the Legislature required certain tax revenue to be deposited into a "current school fund" that was used solely for the operation of common schools. Laws of 1939, ch. 225, 31. Common schools are now funded with appropriations from the general fund. 3 Plaintiffs included figures of one non-operating charter school in their calculations and argument about future charter costs. See Pl. Resp. at 23: STATE OF WASHINGTON'S REPLY IN SUMMARY JUDGMENT 13 ATTORNEY GENERAL OF WASHINGTON Olympia, WA

20 I charter school funding needs will exceed the Opportunity Pathways Account by the schools' "fifth 2 year of operation." Pl. Resp. at 23:13-23; 24: Plaintiffs then ask this Court to assume that the Legislature will choose an 4 unconstitutional funding alternative. However, the Legislature has several options to further 5 fund charter schools should Opportunity Pathways Account funding become insufficient, as 6 Plaintiffs acknowledge: setting up a dedicated subaccount in the general fund for restricted 7 common school dollars, setting up a dedicated account outside of the general fund for common 8 school dollars,4 increasing an existing tax or fee, imposing a new tax or fee, cutting other 9 programs, developing efficiencies, cutting expenditures, or further limiting the number of 10 permitted charter schools. Pl. Resp. at 22,, 28; Skelton Decl., Ex. 31 at Plaintiffs' reliance on Mitchell is misplaced. Pl. Resp. at 22; 29. The statute at issue in 12 Mitchell did not identify a constitutional funding source, but required use of school district 13 property (school buses) for the benefit of sectarian private schools that were not part of the 14 "public school system." Mitchell v. Consol. Sch. Dist. No. 201, 17 Wn.2d 61, 64-66, 135 P.2d (1943); LWV, 184 Wn.2d at 408. Under those facts, the Court concluded that the statute 16 required use of restricted funds for improper purposes. Mitchell, 17 Wn.2d at 66. Unlike 17 Mitchell, the Charter Schools Act explicitly identifies the Opportunity Pathways Account as a 18 constitutionally-unrestricted funding source.5 19 Plaintiffs also argue that district authorizers and districts must "divert" common school 20 funds to cover authorizer activities and parent notice requirements. Pl. MSJ at 29; Pl. Resp. at They rely on Mitchell here too, but the problem in Mitchell was that "to carry out [the 22 Act's] purpose," to provide transportation to sectarian schools, "the directors of the school This is unlikely, however, because it would severely reduce the State's debt limit, which is calculated based on the general fund. s Similarly, Plaintiffs' argument that the constitutional protection of common school funds is not 25 dependent on funding source is irrelevant when it is undisputed that charter schools are funded from the Opportunity Pathways Account. Pl. Resp. at 22:-27, 23:1-3. STATE OF WASHINGTON'S REPLY IN 14 ATTORNEY GENERAL OF WASHINGTON

21 1 districts must, of necessity, resort to the common school fund." Mitchell, 17 Wn.2d at (emphasis added). In contrast, here, Plaintiffs fail to meet their burden to show that restricted 3 common school appropriations must be used for charter school activities, where districts have 4 sufficient sources of unrestricted funds. Pl. Resp. at (citing to a portion of the Salvi 5 Declaration that does not address school district expenditures at all). District authorizer 6 activities are funded by fees paid into an oversight account from charter school apportionment, 7 RCW 28A.710.0, and district notice to parents about charter school options would incur 8 minimal expense. Even if these expenditures created a constitutional problem, the remedy 9 would require a lawsuit that names the affected school districts, and an order that they must use 10 unrestricted dollars to fund these activities, not a declaration that the entire Act is 11 unconstitutional. 12 Finally, despite only seeking prospective relief, Plaintiffs focus on evidence that 13 general funds were paid to charter schools and the Charter Commission during FY Pl. 14 Resp. at 28:8-17. These expenditures were not improper, nor are they relevant to Plaintiffs' 15 request for prospective relief. See 2d Crawford Decl., T 6; Miller Decl., Att. 1, at 9-13; Att And the Charter Commission was required to engage in an orderly wind-down process. 2d 17 Crawford Decl., 8; 2d Halsey Decl., Defendants are entitled to summary judgment on Plaintiffs' funding claim. The 19 undisputed material facts demonstrate that charter schools are constitutionally funded from the 20 Opportunity Pathways Account. The remainder of Plaintiffs' claim is based on speculation and 21 immaterial facts, neither of which can sustain a claim for declaratory or injunctive relief. See 22 Braam v. State, 150 Wn.2d 689, 708, 81 P.3d 851 (2003); Walker v. Munro, 124 Wn.2d 402, , 879 P.2d 920 (1994) STATE OF WASHINGTON'S REPLY IN SUMMARY JUDGMENT 15 ATTORNEY GENERAL OF WASHINGTON Olympia, WA

22 I D. The Charter Schools Act Does Not Delegate the Task of Defining the "Program of Basic Education" and There Are Substantial Safeguards to Protect Against Arbitrary 2 Action 3 In addition to infirmities described by amici, Plaintiffs' delegation argument relies on a 4 fundamentally incorrect premise. Plaintiffs assert that the Charter School Act improperly 5 delegates to charter schools or authorizers the duty to define the constitutionally-required 6 "basic education." Pl. Resp. at But the Washington Supreme Court held in McCleary 7 that the Legislature has already met this requirement by adopting the four learning goals in 8 RCW 28A and requiring the EALRSs. McCleary, 173 Wn.2d at ; RCW 9 28A (charter schools too must comply with the goals and EALRs). The Court later 10 explained that the program necessary to provide that education is not etched in constitutional 11 stone. Id. at 5. The Legislature is free to select the means of providing education, and those 12 means can vary. McCleary, 173 Wn.2d at 486; Tunstall, 141 Wn.2d at Plaintiffs' absolute rule, if adopted, would prevent the Superintendent, the State Board 14 of Education, and school districts, from playing an expert role in developing the details of the 15 broader "program of education," because only the Legislature could discharge that duty. That 16 would be an unworkable system. Plaintiffs also suggest that only the state can deliver the 17 program of basic education, Pl. Resp. at 32, but the Constitution does not say that. The State 18 can fulfill its constitutional duty by offering a variety of programs, many of which are operated 19 under contract with the State or school districts. Meierbachtol Decl Both public and 20 private entities can deliver educational programs, and in doing so, fill in the details of how the 21 constitutionally-required education will be taught to each student. E.g., Anderson Decl Plaintiffs assume again that the Act "waives" RCW 28A , Pl. Resp. at 32. But 24 charter schools must comply with.220 pursuant to the Act and their contracts. See, supra, at Moreover, procedural safeguards exist to control arbitrary action and any abuse of 1 discretionary power. Barry & Barry, Inc, v. State Dep't of Motor Vehicles, 81 Wn.2d 155, 159, STATE OF WASHINGTON'S REPLY IN 16 ATTORNEY GENERAL OF WASHINGTON

23 1 500 P.2d 540 (1972); see also United Chiropractors of Wash., Inc. v. State, 90 Wn.2d 1, 6, P.2d 38 (1978) (same test). Charter schools are subject to strict oversight. Charter authorizers 3 must approve charter school applications after a long, detailed, public process. RCW 4 28A They are subject to an extensive performance framework. RCW 28A Authorizers must continually monitor their performance and can impose corrective action and 6 sanctions. RCW 28A And authorizers "may revoke a charter contract at any time, or 7 may refuse to renew," if the school fails to comply with requirements. RCW 28A There must be a revocation or nonrenewal process, but it is not unduly burdensome or time- 9 consuming in light of the due process that must be provided to authorized schools. Id. Plaintiffs 10 point to no instance in the case law where similar oversight safeguards have been held to be 11 insufficient. 12 E. The Superintendent of Public Instruction Has Supervisory Authority Over Charter Schools That Satisfies Article III, Section The Charter Schools Act maintains the Superintendent's supervisory authority over 14 charter schools while properly exercising the Legislature's authority "to design the 15 organizational structure under which the public education system is administered," as well as 16 the Superintendent's specific duties. Att'y Gen. Op. 6 (1998), at 2; Att'y Gen. Op. 8 (2009), at The Legislature has authority to create an agency to administer programs under the 18 Superintendent's supervision, which it has done under the Act. Att'y Gen. Op. 8 (2009), at The Commission's status as an independent state agency does not erode the 20 Superintendent's supervisory authority. The plain language of the Act preserves the 21 Superintendent's supervisory authority. See RCW 28A (5).;.070(2). The 22 Commission's role is to administer the "charter schools it authorizes in the same manner as a 23 school district board of directors administers other schools." RCW 28A (2). The 24 Commission plays the same administrative role as a school district board of directors and the 25 Superintendent supervises charter schools just as he supervises other public schools. RCW STATE OF WASHINGTON'S REPLY IN 17 ATTORNEY GENERAL OF WASHINGTON

24 I 28A (5). If anything, the Superintendent plays a more direct role in supervising charter 2 schools because the Superintendent or his designee serves on the Commission, but not on 3 school boards. See RCW 28A (3)(ii). 4 Plaintiffs make the conclusory allegation that the Superintendent's supervisory 5 authority was reduced under the Charter Schools Act without specifically identifying how. Pl. 6 Resp. at 36: Plaintiffs cannot avoid summary judgment through conclusory allegations. 7 Pagnotta v. Beall Trailers, 99 Wn. App. 28, 36, 991 P.2d 728 (2000). Nowhere in the Act is the 8 Superintendent made subordinate to the Commission. The Superintendent's authority includes, 9 but is not limited to, determining funding allocations, financial regulations and accountability, 10 management of assessments, data collection, and ensuring compliance with school accountability 11 laws. Meierbachtol Dec. T 3, 16; RCW 28A ; Att'y Gen. Op. 6 (1998), at Plaintiffs deny that the Superintendent can withhold or delay payments to charter 13 schools. Pls. Brief at 36: This argument runs contrary to the Act, the Superintendent's 14 rules, and the Superintendent's actual implementation of the law.' See RCW 28A (5); 15 RCW 28A (l), (3) (requiring charter schools to comply with reporting requirements in 16 the same manner as other public schools to receive funding and requiring the Superintendent to 17 reconcile distributions); RCW 28A (2), (3) (requiring the Superintendent to distribute 18 state funding and adopt reporting and distribution rules). 19 The Superintendent can withhold and recapture funds from charter schools. The 20 Superintendent adopted "fiscal and reporting rules that regulate [charter] schools' obligations 21 when receiving public funds..." Meierbachtol Decl., 16. These extensive rules govern 22 charter school funding and reporting requirements, and allow for withholding, delay, or Use of the term "shall" in the funding distribution provision of the Charter Schools Act is no different from the apportionment statute that governs the Superintendent's authority to allocate funds to school districts. Cf. RCW 28A (1) (Superintendent "shall apportion" to educational service districts and school districts); RCW 28A (2). STATE OF WASHINGTON'S REPLY IN 18 ATTORNEY GENERAL OF WASHINGTON

25 I recovery of funding for multiple reasons, including noncompliance with instructional 2 requirements or audit resolution procedures. See WAC , -090, -115 (audit and 3 resolution); WAC , , , (data reporting and 4 documentation of compliance); WAC , , (apportionment rules and budget and accounting rules bind charter schools); WAC (withholding of basic education allocations); WAC (apportionment 7 calculated in part based on instructional compliance). If the Superintendent suspects 8 noncompliance, he can withhold funds pending investigation. WAC All of these 9 Superintendent regulations show full Superintendent control over payments to charter schools. 10 Moreover, Plaintiffs do not dispute that charter schools must satisfy the same 11 requirements as school districts to receive general apportionment and categorical funding. 12 Meierbachtol Decl. J 12-13, The Superintendent has withheld and otherwise 13 recaptured this funding from charter schools. Meierbachtol Decl. T 19, 20 and 22; Miller Dec., 14 Atts 1 and 2. The Superintendent also enforces substantive legal obligations, for example, in 15 special education, and he oversees the assessment of learning standards for state and federal 16 accountability purposes. Meierbachtol Decl., TT 25-28, 40 and Plaintiffs attempt to distinguish the Professional Educator Standards Board and the 18 State Board of Education by arguing that they merely "work in conjunction with the 19 Superintendent to establish educational standards." Pl. Resp. at 38:5-7. This is inaccurate. The 20 State Board of Education has a number of substantive duties including implementation of the 21 State's accountability framework, adopting performance improvement goals, establishing cut 22 scores for accountability standards, waiving requirements of RCW 28A through 23 28A , waiving the 180-day school year requirement, and developing EALRs. See 24 28A ,.140,.146 and.215. The Professional Educator Standards Board administers 25 teacher certification and continuing education. See RCW 28A ,.210,.220. Like the Commission, these agencies hold a discrete set of duties to administer portions of the public STATE OF WASHINGTON'S REPLY IN 19 ATTORNEY GENERAL OF WASHINGTON