With all of the subtlety and compassion of a slumlord tacking a three-day eviction notice to the door on Christmas Eve, the Washington Supreme Court last week handed down a 6-3 ruling to strike down the state’s voter-approved charter school law.

The timing of the decision was callous and cowardly, coming late on a Friday heading into a three-day holiday weekend when an estimated 1,200 charter school students had either already begun classes or were eagerly anticipating the first day.

The Court took nineteen pages to justify its ruling, but their opinion can be boiled down to one idea: “[C]harter schools do not qualify as common schools.” The Court has previously ruled that schools that are not common schools cannot use funds intended for common school purposes.

That leaves one small matter — what is a “common school?” The word itself may lead the average person to believe a common school is just a school that is open to all students and does not charge tuition, but the full definition is established in precedent that goes back 106 years.

In School District No. 20 v. Bryan [1909], the Court established a set of standards for common schools. Aside from aspects of open enrollment and local control, the spirit of the decision seems to coalesce around preserving accountability to the voters for how publicly funded schools would be operated. From Bryan: [ed. bold added]

“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.”

Hang on a second. You say that complete control is “a most important feature” of a common school? Agents chosen by the voters (a.k.a., school board members) need to have the ability to get rid of bad teachers?

Chief Justice Madsen and Company, I believe you’ve inadvertently raised the question of whether any schools in Washington are, in practice, constitutional.

In the sense of how schools function and whether the degree of accountability, most balanced observers of our K-12 system would have to find it falling far short of the bar set in Bryan.

By affirming the plainly written common school standard in Bryan, did the Court condemn charter schools and traditional schools alike? Because while it’s technically true that schools can act to dismiss bad teachers, the practical reality is painfully obvious. The swift and authoritative mechanism the justices were striving to protect with Bryan has — in the intervening 106 years — been subverted by a thicket of union-strewn contractual red tape that has the effect of protecting bad teachers.

Union rules have made getting rid of incompetent teachers so cumbersome that in too many cases the cure is worse than the disease, and so incompetence is internally managed. The kids suffer, particularly minority and low-income students who often can’t just move to a more expensive neighborhood in order to evacuate a school that is not meeting this basic common school standard.

This new normal across large swaths of the K-12 universe is, in fact, a large part of why voters approved Initiative 1240 in the first place.

Could the Court have decided differently? Could they have overturned Bryan and avoided sending 1,200 students into a state of educational limbo?

We’re told by proponents of an activist judiciary that constitutions are living things, and that they need to adapt with the times. Justices in 1909 were still in the process of protecting the institution of public education during its adolescence. It’s unlikely their deliberation would have included imagining a future in which unions with crushing political power would place virtual handcuffs on school boards and administrators to make the need for local control just a quaint notion; an idea that went out of fashion right along with spats on shoes and flapper dresses.

How would the Seattle or Tacoma School Districts fare if measured by a future Court against the Bryan standard, particularly if that panel of justices required evidence of local control in staffing decisions to find the common school standard had been met?

Times have changed. Chief Justice Madsen, Associate Chief Justice Johnson, and Justices Owens, Stephens, Wiggins and Yu should be able to recognize that and it was within their grasp to do something about it. They chose to maintain the status quo.

Elections matter. Of the justices who signed onto the 6-3 decision, the terms of Associate Chief Justice Charles Johnson and Justice Debra Stephens are up at the end of this year.