Bill Gates (Yuri Gripas/Reuters)

Washington’s charter school law, which narrowly passed in a 2012 referendum with financial support from Microsoft founder Bill Gates and other wealthy philanthropists, has been struck down as unconstitutional by the state’s Supreme Court.

As a new school year is starting with eight new charter schools opening, the Washington state high court ruled Friday that the law violates the state constitution, which says that public school funds can be used only to support “common schools.” The justices voted, 6 to 3, that charter schools — which are publicly funded but privately run — are not “common schools” because their governing boards are not elected but are appointed by the founders of the individual schools.

The Seattle Times reported that the ruling affects hundreds of students in the state’s nine charters — including one that opened last year — and that it is unclear what will happen. The ruling becomes final by the end of the month, and the parties can ask the court for reconsideration.

A referendum known as Initiative 1240 was narrowly passed in 2012 by voters in Washington state. They had rejected opening public charter schools three times before — in 1996, 2000 and 2004. In 2012, the initiative had major financial support from philanthropists who support school choice, including:

*Microsoft founder Bill Gates, with more than $3 million

*Alice Walton of Walmart Stores (who, unlike Gates, doesn’t live in Washington state), with about $1.7 million.

*Entrepreneur Nicolas J. Hanauer of Seattle, with $1 million.

*Jackie and Mike Bezos, about $750,000. (They are the parents of Jeff Bezos, founder of Amazon.com and the owner of The Washington Post.)

The law was challenged in 2013 by a coalition of organizations, which argued that the law “improperly” diverted public school funds to organizations that are private and “not subject to local voter control.” Those groups include the Washington Education Association, the League of Women Voters of Washington, El Centro de la Raza and the Washington Association of School Administrators.

The state Supreme Court has been deliberating for nearly a year. The timing of its decision was criticized by Joshua Halsey, the executive director of the Washington State Charter School Commission, who was quoted by the Seattle Times as saying:

“The court had this case in front of them since last October and waiting until students were attending public charter schools to issue their ruling is unconscionable. We are most concerned about the almost 1,000 students and families attending charter schools and making sure they understand what this ruling means regarding their public-school educational options.”

The question of whether charter schools are public or private has been alive for years. Although created to be public schools that are publicly funded, their legal status is unclear. Here are some of the issues involved, taken from a charter school analysis published this year by the National Education Policy Center at the University of Colorado at Boulder.

It is true that federal and many state laws define charter schools as public schools. Further, charter schools are funded primarily with public funds. But the actual legal status, in any meaningful policy discussion, is much less clear. A recent law review article, helpfully titled “The Legal Status of Charter Schools in State Statutory Law,” is available to the public online and walks the reader through this nuanced landscape. The authors conclude, “While charter schools are generally characterized as ‘public schools,’ courts have had a difficult time determining their legal status because charter schools contain both public and private characteristics.”

To understand the extent to which charter schools are de facto either public or private, it is necessary to examine various aspects and components of the schools, such as ownership, public accountability, governance, management, employee status, and the extent to which the schools are open to all and are pursuing democratically and publicly established objectives.

*Most charter schools are governed by nonprofit boards. It is increasingly the case that charter school buildings are privately owned by the charter’s founders, by an affiliated private company, or by a private trust.

*In schools operated by private education management organizations (EMOs), the materials, furniture, and equipment in the schools are usually privately owned by the EMO and leased to the school.

*Except for a small number of states that require teachers to be employees of the charter school, it is common for teachers to be “private employees” of the EMO.

*Although most charter schools have appointed nonprofit boards intended to represent the public (i.e., taxpayers’) interest, a growing portion of charter schools are operated by private EMOs, and key decisions are made at corporate headquarters, which are often out-of-state.

*Public schools, like other public entities, are subject to transparency laws. Charter schools and their private operators increasingly refuse to share information and data in response to public requests. This issue is explored further later in this review. In 2011-12, 42% of the nation’s public charter school students were enrolled in privately operated charter schools. Based on trends in the growth of EMOs, it is estimated that by 2015-16, more than half of the nation’s charter school students will be enrolled in schools owned and operated by private EMOs.

Thus, while claiming to be “public,” and while having some elements that are public (most importantly, public funding for a no-tuition education), their operations are basically private.