Minnesota should decline any invitation to have its courts declare that charter schools in the state are unconstitutional (“Are charter schools unconstitutional?”, Oct. 1). Our legislators and governors have met the constitutional obligation to establish a “general and uniform” and “thorough and efficient” system of public education. Minnesota students have benefited from this system, and there is no evidence that they would do any better under more intrusive oversight by the courts.

The cue for lawyer Marshall Tanick’s commentary was the recent decision by the Washington Supreme Court overturning that state’s charter school law. But Tanick is wrong when he argues that the rationale used in the Washington case could “equally, and perhaps easily,” be used against charter schools in Minnesota.

The Washington Constitution, like Minnesota’s, instructs the legislature to provide for “a general and uniform system of public schools.” The key difference is that Washington’s Constitution goes on to say, “The public school system shall include common schools …” And the revenue from specifically identified “common school” funds must be used exclusively for “common schools.” Common schools are not the whole public system; high schools, normal schools and technical schools can all be part of Washington’s “system of public schools.” In 1909, the Washington Supreme Court determined that “common schools” are subject to and under the control of school district voters.

The Washington charter school law was unconstitutional because it gave charter schools access to “common school” funds, even though they weren’t common schools because they weren’t subject to voter control.

Minnesota’s Constitution doesn’t have anything like the “common school” provision and also does not have an exclusive funding requirement. Consequently, the Washington decision is not applicable to Minnesota under any reasonable understanding of the two state constitutions.

Tanick appears to be suggesting that the only schools that can get funding in Minnesota’s system of public schools are those governed by a local school board. If so, his argument would undermine publicly operated schools like the Perpich Center for Arts Education and the Minnesota State Academy. Their boards are appointed by the governor with the advice and consent of the state Senate. These state agencies are publicly funded and serve students from throughout the state but are not governed by local school boards. Before Tanick suggests that Minnesota’s charter schools are unconstitutional based on their governance, he should take account of the consequences.

Tanick makes another error that undercuts his argument. He claims that Skeen vs. State required the state to fund “adequate” education but it “did not have to go beyond that modest level.” To arrive at that conclusion, he would have had to ignore the part of the opinion where the court said, “[T]his case never involved a challenge to the adequacy of education in Minnesota.” The court did say that the Legislature must provide adequate funding as part of answering the real question in that case: whether the funding available to the districts was equal enough to be “uniform” within the meaning of the Constitution.

The Skeen court fulfilled its responsibility to interpret the Constitution, yet it said: “But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.”

We should not be too quick to resort to the courts when we can use the flexible and accountable processes of representative democracy to create an effective and innovative system of public schools. Courts have played a major role in establishing essential democratic principles, including the decision in Brown vs. Board of Education that schools could not be equal if they segregated students on the basis of color. Despite the value of the courts, we should rely primarily on legislators to define “public schools” and hold those legislators accountable at the polls if they get it wrong.


Steve Kelley is a senior fellow at the University of Minnesota’s Humphrey School of Public Affairs, where he teaches education law and policy. He is a former legislator and was chairman of the state Senate Education Committee.