It’s been a long time coming, but still there is no verdict.

In fact, it’s been so long since Hope Academy Broadway Campus et. al. v. White Hat Management  was filed (December 30, 2013) and argued (September 23, 2014) before the Supremes that many folks have forgotten about the case.

But then maybe that’s the method in charter world – a method that’s also taught in law schools: delay, delay. We know that in some protracted disputes, principals in a case die. Certainly, all get older and people forget.  So … delay.

Three months ago, a friend in Texas contacted me to ask if a verdict had been reached in this case. No, I replied, but if you hear anything more about this in Houston, let me know, because it’s awful quiet here in Columbus. And, oh, speaking about a long time waiting for a verdict, isn’t there a guy named DeLay in your state?

Full disclosure: At the time my friend contacted me with her question, I had forgotten about this case as well, but White Hat came up this week in a conversation with a few individuals, one of whom is an attorney familiar with … um, delays.

“It’s unprecedented for this amount of time to transpire without a verdict from the court,” he opined. “This probably means there’s a split among the justices that still needs to be nuanced. Or maybe they’re delaying to help Kasich.”

He’s probably right with both of his guesses.

In case readers have forgotten the particulars of the case, 10 charter school boards sued White Hat Management, the operator of their schools, to learn about how state funds for their schools were being spent by the charter management company. But don’t be fooled – David Brennan’s company shouldn’t be confused with the real White Hats – the good guys of legend who galloped to the rescue wearing those distinctive Stetsons.

“White Hat attorney David Paragus argued that the company is an independent contractor with no duty to disclose its budget,” reporter Mark Urycki  wrote last year about the case.   “Justice William O’Neill asked whether it could turn around and sell off all the desks and computers it purchased for the schools.

“That’s correct.  In fact, this is what enabled the management company to be nimble,” Paragus said.  “They operated a number of schools and so if they had furniture where the enrollment was down they could shift the use of those dollars – or that equipment- to other schools.”

“But they could shift it to Hong Kong for that matter,” replied O’Neill.

“That’s correct.”

Yes, in charter world, that is absolutely correct. With the expenditure of public money by private companies operating corporate charter schools, anything goes, as Ohioans have seen time and again.

Doug Livingston, a keen observer of charter world, wrote in the Akron Beacon Journal that “The case illustrates a larger issue: Ohio charter schools were created more than 15 years ago as independent public agencies. But as so many for-profit companies now own the real estate, furniture and computers, the questions are raised: Are charter schools still public? Are they independent? Or are they now privately run, for profit-businesses?”

While Buckeye State residents await the verdict of the court and the issue of White Hat Management using public money to create private property from what are “public” charter school assets, we can ponder the significance of last week’s action by the Washington State Supreme Court. Those Supremes held that since charter schools are governed by non-elected boards, they don’t fit the definition of common schools, where boards are elected by the citizens in their respective communities.

In other words, said the court, charters in Washington are unconstitutional.

On September 11, the New Jersey-based Education Law Center issued this statement:

“On September 4, 2015, in League of Women Voters of Washington v. State, the Washington Supreme Court voided the state’s charter school statute because it circumvents local control and diverts education funds away from district schools, in violation of the state constitution.

“Local control of K-12 schooling is essential and required in Washington. Local voters through their elected boards of education are the only entities permitted to govern public schools and receive public funds for “common schools.” Yet, the charter statute allowed charters to be authorized and run by private, appointed boards completely outside the control of local voters and school boards. And, the statute required the state and local taxpayers to fund the charters equally with the public schools.” (Emphasis mine.)

Charter school critics and supporters of public education were buoyed by the news from Olympia, but the reasoning of the Washington court also demonstrates the application of basic common sense. The common school arises out of the public interest and the necessity to create schools for the education of the young.  In our democratic system, common schools are governed by trustees elected from the communities they serve to provide governance as they oversee the community’s assets – its crown jewels, the public’s schools. (Hmm. Doesn’t use of the possessive form imply ownership?)

But it has also been said that common sense is an uncommon virtue. The Washington justices deserve our thanks for the clarity of their thinking in reminding us about the definition of public education.

As we in Ohio await word about how the court will define public property and whether or not it can be shipped to Hong Kong or otherwise used to fatten corporate balance sheets, we may learn if such an action by a private company meets the test of providing a proper public purpose.

The one-year anniversary of the oral arguments in the White Hat case will be observed on September 23. We will soon find out whether or not the gulf in thinking between Olympia, Washington and Columbus, Ohio might exceed the geographic distance between these two capitals.

PS – The Dispatch story filed on that date ended with this sentence: “A decision in the case is expected in a few months.”


Denis Smith is a retired school administrator and a former consultant in the Ohio Department of Education’s charter school office.