Filed Washington State Court of Appeals Division Two
May 31, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II IMPACT PUBLIC SCHOOLS, No. 57035-1-II
Appellant,
v. UNPUBLISHED OPINION THE WASHINGTON STATE CHARTER SCHOOL COMMISSION,
Respondent.
PRICE, J. — Impact Public Schools (Impact) appeals the superior court’s order affirming
the Washington State Charter School Commission’s (Commission) “Notice of Deficiencies,”
“Corrective Action Plan,” and “Corrective Action Compliance Calendar” (collectively “corrective
actions”) against Impact. The corrective actions asserted that Impact improperly screened students
prior to enrollment, improperly enrolled students to kindergarten and sought public funding for
four-year-old students, and defied the Commission’s decision not to allow transitional
kindergarten courses. Impact seeks judicial review under the Administrative Procedure Act
(APA)1, asserting the Commission’s corrective actions were arbitrary and capricious and outside
of the Commission’s scope of authority.
We determine that Impact fails to show it is entitled to relief under either APA ground and
affirm.
1 Ch. 34.05 RCW. No. 57035-1-II
FACTS
I. CREATION OF SALISH SEA ELEMENTARY AND CHARTER CONTRACT
Impact is a nonprofit corporation that operates public charter schools in Washington. In
March 2019, Impact applied for approval from the Commission to establish and operate Salish Sea
Elementary (SSE) as a charter school.
The approval process for SSE required Impact and the Commission to enter into a charter
contract. The contract generally required SSE to “meet or exceed basic education standards” and
required Impact to “operate at all times in accordance with Applicable Law . . . .” Admin. R. (AR)
at 21, 29. The charter contract defined “Applicable Law” as “all local, state, and federal laws,
ordinances, rules and regulations applicable to the operation of a charter school in the” state.
AR at 15.
The charter contract further included an enrollment policy, which required SSE to be open
to all students who wished to attend and stated, “There shall be no admission testing or other
evaluation required of any applicant.” AR at 61. In addition, the charter contract required SSE to
report student enrollment in the same manner as public schools, including complying with
reporting requirements to receive public funding allocated based on student characteristics.
II. SSE’S PLAN TO OFFER TRANSITIONAL KINDERGARTEN
SSE planned to offer kindergarten classes. But due to “local demand” from families with
younger children, Impact intended to add transitional kindergarten (TK) classes to SSE. AR at
166.
TK, according to the Office of the Superintendent of Public Instruction (OSPI), “is a
kindergarten program for children not yet age five who do not have access to high-quality early
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learning experiences prior to kindergarten and have been deemed by a school district, through a
screening process and/or other instrument(s), to be in need of additional preparation to be
successful in kindergarten the following year.” AR at 190. When a school district opts to offer
TK classes, the district typically determines the process for evaluating students and establishing
need for the students to enter TK to be ready for kindergarten the following year.
In December of 2019, Impact informed the Commission of their intent to offer TK classes.
Impact explained that it did not believe offering TK was a modification that would require
preauthorization by the Commission under the contract, but it still wanted to check with the
Commission before implementation.
Although it did not receive an immediate response from the Commission, Impact then took
steps to develop a TK program at SSE. Impact hired teachers, purchased TK curriculum,
completed community outreach, and ultimately enrolled two full TK classes for the 2020-21 school
year. Before enrollment in the TK classes, Impact asked the prospective students’ families
screening questions. The questions included inquiries into the child’s history, including questions
about the child’s development, their abilities to recognize the alphabet and count, and the child’s
strengths and needs.
Months later, in May 2020, and notwithstanding Impact’s preparations, the Commission
determined that charter schools, including Impact, could not offer TK classes earlier than January
2021. The Commission reasoned that there was a lack of formal process for charter schools to
petition the Commission to offer TK and there was no regulatory framework to support TK at that
time.
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The Commission notified Impact of its decision, explaining it believed preauthorization for
TK was required because the “Commission and Impact did not contemplate TK as an option when
Impact applied to the Commission to open SSE and when Impact signed the SSE charter contract.”
AR at 434. The Commission also explained there were conflicts with the requirements of TK
enrollment and the laws governing charter schools—TK requires screening of students, but charter
school laws prohibit charter schools from screening students.2 RCW 28A.710.050(1) (“[A] charter
school may not limit admission on any basis other than age group, grade level, or enrollment
capacity.”). On June 19, 2020, Impact requested reconsideration of the Commission’s decision
not to allow its TK classes for fall 2020, which was denied.
During this same timeframe in June 2020, Impact was required to show 80 percent
enrollment as a condition precedent to SSE opening for the 2020-21 school year. On June 22,
Impact submitted its enrollment information that showed the school would meet the 80 percent
enrollment requirement. Impact, however, included the students screened for TK in its expected
enrollment. In fact, about half of the reported enrolled students were four-year-olds screened
for TK.
III. SSE OFFERS ADDITIONAL KINDERGARTEN COURSES
In July 2020, after receiving the Commission’s decision denying its TK courses, Impact
decided to open two additional kindergarten classes. At the same time, Impact called the families
2 Although the charter contract’s provision regarding enrollment policy gives Impact the ability to determine enrollment policies, it also states that there “shall be no admission testing or other evaluation required of any applicant” to SSE. AR at 61.
The purpose behind the prohibition on screening students, according to the Commission, is to keep charter schools open to all students, as opposed to allowing charter schools to select students based on academic ability.
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of the children who had been enrolled in the TK classes. Impact notified the families that TK was
no longer available, but then asked them if they would like their children shifted into kindergarten
classes. Most families chose to enroll their children in kindergarten.
Many of the children who were shifted from TK enrollment to kindergarten were four years
old. Because of their young age, these students were to be considered “early entrance to
kindergarten” (EEK) students. Clerk’s Papers (CP) at 553. During the phone calls with the
families, Impact asked a series of “K Assessment Phone Interview Questions.” AR at 605. The
questions evaluated the EEK students’ readiness for kindergarten and included inquiries about the
child’s development and ability to count. Impact also sent the families a written form to
supplement the verbal assessment, asking four questions about the student’s strengths and needs.
No children were denied enrollment as EEK students as a result of the questions.
IV. INVESTIGATION AND CORRECTIVE ACTION
Later in the fall, OSPI became aware that Impact’s enrollment numbers included four-year-
olds enrolled as EEK students. Impact had requested and received about $790,000 of public funds
from OSPI based on their enrollment of four-year-olds. In October 2020, OPSI informed the
Commission about Impact’s enrollment of the four-year-olds. The Commission then conducted
an investigation which revealed that most of the enrolled four-year-olds were the same children
that had initially been screened for TK classes.
The Commission issued a “Notice of Perceived Problem” (NPP) to Impact. The NPP
identified the Commission’s concerns with the kindergarten enrollment, including the
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Commission’s belief that the school was not authorized to access public funds for enrollment of
children under five years of age.3
The Commission also took issue with Impact’s screening process of the four-year-olds.
The screening of TK and EEK students conflicted with laws prohibiting admission to charter
schools based on criteria other than age group, grade level, or enrollment capacity. AR at 713.
The Commission identified that neither the “Charter School Act”4 (CSA) nor SSE’s charter
contract permits screening, but both TK and EEK admissions require screening prior to enrollment.
The Commission further explained that individual students generally cannot meet the criteria for
placement into both TK and EEK.5
Impact responded to the NPP by stating that enrolling four-year-olds as EEK students did
not conflict with the contract, the CSA, or any other applicable law. Impact argued that the contract
allowed it to make policies and procedures for student enrollment, thereby authorizing it to enroll
3 Relevant to Impact and SSE accessing public funds, the charter contract incorporated assurances that SSE “report student enrollment in the same manner and based on the same definitions of enrolled students and annual average full-time equivalent enrollment as other public schools” and “comply with applicable reporting requirements to receive state or federal funding that is allocated based on student characteristics.” AR at 59. These requirements mirror the requirements of RCW 28A.710.220 (charter schools required to report student enrollment in the same manner and based on the same definitions as public schools). 4 Ch. 28A.710 RCW; LAWS OF 2016, ch. 241. 5 According to the Commission, TK is intended to help four-year-olds be ready for kindergarten the following year, while EEK is appropriate for four-year-olds who are ready to enter kindergarten early and continue on to first grade the following year.
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the four-year-olds as EEK students.6 Regarding screening, Impact contended that “when [it] was
forced to postpone its TK program, it had not [yet] assessed, based on ability, whether the
prospective TK students could succeed in a standard kindergarten program.” AR at 723. Impact
argued that after it postponed the TK program, it “for the first time” assessed whether TK enrollees
would be successful in kindergarten as EEK students. AR at 723. Impact argued that the screening
for EEK did not violate any prohibition on pre-enrollment screening because Impact did not limit
admission on any basis.
Impact’s response acknowledged that it was subject to the relevant WAC’s that applied to
funding of public schools and enrollment of four-year-olds into kindergarten—namely, chapter
392-121 WAC and chapter 392-335 WAC—but it asserted its EEK program “was conducted
consistent with RCW 28A.150.220 and WAC chapter 392-335,” and it therefore “did not access
public funds improperly” by enrolling four-year-olds. AR at 728.
After considering Impact’s response, the Commission was unpersuaded. On March 15,
2021, the Commission issued a Notice of Deficiencies (NoD). The NoD identified several
deficiencies, stating Impact had:
Disregarded the Commission’s denial of TK in May and June of 2020 by enrolling approximately 60 students who were not yet age five by August 31, 2020 (most of whom had previously been screened into TK).
Required screening of approximately 60 applicants who were not yet age five by August 31, 2020 in the 2020-21 school year.
Enrolled approximately 60 students who were not yet age five by August 31, 2020 in the 2020-21 school year.
6 Impact quotes the charter contract’s enrollment policy, which allows Impact to “determine all policies, processes, and procedures governing . . . enrollment at” SSE. AR at 61. Impact asserted this portion of the contract gave it “absolute discretion . . . to implement enrollment practices and procedures consistent with its mission.” AR at 726.
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Proceeded with screening, enrolling, and educating students who were not yet age five by August 31, 2020, without the required legal or contractual authority.
Claimed and continues to claim many of these students for state apportionment purposes resulting in a misappropriation of public funds.
AR at 737. The NoD required Impact to propose a Corrective Action Plan (CAP) by March 26,
2021, to cure the deficiencies listed in it.
Impact responded to the NoD several weeks later by denying any deficiencies. Despite its
denial, Impact provided a proposed CAP. Impact again acknowledged applicability of chapter
392-121 WAC and chapter 392-335 WAC, but asserted it complied with those rules.
The Commission and Impact proposed amendments to the CAP, and after several rounds
of negotiations, the CAP was approved by the Commission on May 21, 2021. The final version
of the CAP reasserted the same deficiencies as the NoD and required Impact to undertake certain
remedies, such as not enrolling additional students under five years of age without Commission
approval. Impact was also required to comply with the enrollment policies in the charter contract,
including not screening students prior to enrollment unless they are approved to do so by the
Commission for TK, EEK, or other programs in the future. However, Impact was not required to
disenroll any existing students.
The Commission also provided Impact with a Corrective Action Compliance Calendar
(CACC) for the due dates of reports and actions called for in the CAP.
V. PETITION FOR JUDICIAL REVIEW
Before the CAP was finalized, Impact filed a petition for review of the Commission’s NoD.
In this petition, Impact reasserted that when it planned to offer TK at SSE, it had not assessed
whether the students would be capable of succeeding in EEK. Impact then “embarked for the first
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time on an assessment of whether the students slotted for the TK program would be capable of
success in the standard kindergarten program,” and determined those same students could “take
advantage of the [] early enrollment option.” CP at 7.
After finalization of the CAP and the CACC, Impact filed a second petition for review,
arguing those documents erroneously concluded that Impact was in violation of the charter contract
and statutory and regulatory provisions. Impact argued the CAP and CACC would increase the
burden and expense of running SSE.
The superior court consolidated the two actions and ultimately affirmed the Commission’s
corrective actions, determining that the Commission acted within its statutory authority and not
arbitrarily or capriciously.
Impact appeals.
ANALYSIS
Impact appeals the superior court’s order affirming the Commission’s corrective actions
arguing that the NoD, CAP, and CACC should be set aside because the Commission, in enforcing
these documents, acted outside of its statutory authority and was arbitrary and capricious.7 Impact
argues that its decision to enroll four-year-olds as EEK students was not contrary to law and it did
not disregard the Commission’s denial of permission to offer TK classes.
7 Although Impact challenges the NoD, CAP, and CACC, the Commission asserts the CAP is the only final, reviewable agency action it issued against Impact. Impact argues that all three corrective actions were final and reviewable. Because all three corrective actions are based on the same alleged deficiencies, we do not resolve whether all or only some of the corrective actions are reviewable.
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I. LEGAL PRINCIPLES
A. STANDARD OF REVIEW
The APA governs judicial review of agency actions, including what is termed “other
agency action.” See RCW 34.05.570(4). RCW 34.05.570(4)(c) allows judicial review of other
agency action based on four grounds:
Relief for persons aggrieved by the performance of an agency action, including the exercise of discretion, or an action under (b) of this subsection can be granted only if the court determines that the action is:
(i) Unconstitutional;
(ii) Outside the statutory authority of the agency or the authority conferred by a provision of law;
(iii) Arbitrary or capricious; or
(iv) Taken by persons who were not properly constituted as agency officials lawfully entitled to take such action.
Here, Impact argues it is entitled to relief under subsections (ii) and (iii), alleging the
Commission acted outside of its authority and acted arbitrarily and capriciously.
“Under the arbitrary and capricious standard, we reverse only if an agency action was
‘willful and unreasoning, and taken without regard to the attending facts or circumstances.’ ”
Child.’s Hosp. & Med. Ctr. v. Dep’t of Health, 95 Wn. App. 858, 871, 975 P.2d 567 (1999)
(quoting ITT Rayonier, Inc., v. Dalman, 122 Wn.2d 801, 809, 863 P.2d 64 (1993)), review denied,
139 Wn.2d 1021 (2000). “Judging whether an agency’s decision was arbitrary and capricious
involves evaluating the evidence considered by the agency in making its decision.” Id. “ ‘Where
there is room for two opinions, action is not arbitrary and capricious even though one may believe
an erroneous conclusion has been reached.’ ” Id. (quoting Pierce County Sheriff v. Civil Serv.
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Comm’n of Pierce County, 98 Wn.2d 690, 695, 658 P.2d 648 (1983)). Our review of whether the
agency action was arbitrary and capricious is de novo. Wash. Indep. Tel. Ass’n v. Wash. Utils. &
Transp. Comm’n, 149 Wn.2d 17, 24, 65 P.3d 319 (2003).
When reviewing other agency action, we sit in the same position as the superior court and
apply the standards of review directly to the record before the agency. Id. at 26. Under the APA,
the party asserting invalidity of the agency action has the burden to show the invalidity of the
action. RCW 34.05.570(1)(a).
B. STATUTORY AUTHORITY OF THE COMMISSION
The Commission is an “independent state agency whose mission is to authorize
high[-]quality charter public schools throughout the state . . . and to ensure the highest standards
of accountability and oversight for these schools.” RCW 28A.710.070(1) (emphasis added). “The
commission shall, through its management, supervision, and enforcement of the charter contracts
and pursuant to applicable law, administer the charter schools it authorizes in the same manner as
a school district board of directors administers other schools.” RCW 28A.710.070(2). The
Commission’s oversight begins at the time of application for a charter contract. RCW
28A.710.100(1)(a)-(b).
The Commission has the authority as an “authorizer,” under the CSA, to undertake
corrective action against a charter school. RCW 28A.710.180. The Commission “must
continually monitor the performance and legal compliance of the charter schools under its
jurisdiction, including collecting and analyzing data to support ongoing evaluation according to
the performance framework in the charter contract.” RCW 28A.710.180(1). To fulfill its
responsibilities, the Commission “may conduct or require oversight activities . . . including
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conducting appropriate inquiries and investigations, if those activities are consistent with the intent
of this chapter, adhere to the terms of the charter contract, and do not unduly inhibit the autonomy
granted to charter schools.” RCW 28A.710.180(2).
If the charter school’s “performance or legal compliance appears unsatisfactory,” the
Commission “must promptly notify the school of the perceived problem and provide reasonable
opportunity for the school to remedy the problem.” RCW 28A.710.180(3). And the Commission
“may take appropriate corrective actions or exercise sanctions . . . in response to apparent
deficiencies in charter school performance or legal compliance. These actions or sanctions may
include, if warranted, requiring a school to develop and execute a corrective action plan within a
specified time frame.” RCW 28A.710.180(4).
C. CREATION AND REQUIREMENTS OF CHARTER SCHOOLS
The creation of charter schools is authorized by the CSA. See RCW 28A.710.040. A
charter school is a public school that is open to all children free of charge and operates separately
from the common school system. RCW 28A.710.020(1)(a)-(b). The process of opening a charter
school begins when a nonprofit applies for a charter contract. See RCW 28A.710.100(1)(a)-(b).
Once the charter school’s contract is approved, the charter school “must operate according
to the terms of its charter contract” and the CSA. RCW 28A.710.040(1). Charter schools must
also comply with statutes and rules made applicable to them in their charter contracts. RCW
28A.710.040(3). But charter schools are exempt from “all other state statutes and rules applicable
to school districts and school district boards of directors.” RCW 28A.710.040(3) (emphasis
added).
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II. WITHDRAWAL OF ARGUMENT ABOUT SCREENING OF TK AND EEK STUDENTS
Impact initially argued that the Commission was either arbitrary and capricious or acting
outside of the scope of its authority when it issued corrective actions based on Impact’s screening
activity of four-year-old TK and EEK enrollees to kindergarten classes. Impact asserted that it
was not in violation of statutes preventing the use of enrollment criteria because it did not screen
TK and EEK students before their enrollment to the school in kindergarten classes.
In its reply brief, Impact withdrew its argument that the Commission acted arbitrarily and
capriciously “for concluding, based on [the] record, that Impact/SSE impermissibly conducted pre-
enrollment evaluations of students.” Appellant’s Reply Br. at 22. At oral argument before this
court, Impact confirmed it no longer challenges the Commission’s corrective actions on this basis,
thereby conceding that the Commission was correct in identifying its screening of students as a
deficiency. See Wash. Court of Appeals oral argument, Impact Pub. Schs. v. State Charter Sch.
Comm’n, No. 57035-1-II (May 4, 2023), at 2 min., 19 sec. through 2 min., 44 sec. (on file with
court).
III. IMPACT IMPROPERLY SOUGHT PUBLIC FUNDS FOR ENROLLED FOUR-YEAR-OLDS
Impact argues that the Commission erred by concluding that Impact improperly sought
public funds for enrolling four-year-olds. Impact contends that although the relevant statutes may
require schools be accessible to children at least five years old, they do not prohibit schools from
enrolling students who are four years old. Additionally, Impact argues that regulations requiring
kindergarteners to be at least five years old for enrollment are not applicable because the CSA
broadly exempts charter schools from provisions applicable to public school districts.
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The Commission responds that the regulations related to funding of public schools require
kindergarteners to be five years old and they do apply to charter schools because those rules (found
in chapter 392-335 WAC) are incorporated through rules that are undisputedly applicable to
charter schools (chapter 392-121 WAC).8 We agree with the Commission.
The Washington Basic Education Act of 1977 (BEA), RCW 28A.150.200, generally
requires public schools be accessible to “all students who are five years of age . . . and less than
twenty-one years of age . . . .” RCW 28A.150.220(5)(a). This requirement is reiterated in RCW
28A.225.160(1), which states that schools shall be “open to the admission of all persons who are
five years of age and less than twenty-one years.”
It is true that the BEA stops short of forbidding four-year-olds from enrolling in
kindergarten. And Impact is correct that the CSA does permit charter schools to operate outside
of many of the regulations imposed upon traditional public schools. However, viewing, in
combination, the statutes and regulations related to public funding and enrollment shows that the
age requirements for kindergarten imposed on traditional public schools also apply to charter
schools.
8 During oral argument, Impact argued for the first time that the Commission’s assertions about the applicability of these WAC provisions about funding were a “post hoc rationalization” that we should not consider. Wash. Court of Appeals oral argument, Impact Pub. Schs. v. State Charter Sch. Comm’n, No. 57035-1-II (May 4, 2023), at 6 min., 8 sec. through 6 min., 38 sec. (on file with court). We reject this argument. In its corrective actions, the Commission expressed general concerns about Impact seeking public funding for four-year-olds and included references to the specific rules at issue here. Although the Commission did not expressly outline in detail the application of these provisions, the parties’ general arguments about public funding sufficiently raised these issues.
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A. CHAPTER 392-335 WAC IS APPLICABLE TO IMPACT
As shown below, kindergarten enrollment is governed, in part, by chapter 392-335 WAC.
Impact argues that it need not conform to these regulations because the CSA exempts it from rules
that apply to school districts that are not specifically enumerated in the CSA. Because chapter
392-335 WAC is not specifically enumerated in the CSA but is applicable to school districts,
Impact argues charter schools are not bound by the regulations.
Impact’s position is not persuasive when the trail of applicable statutes and regulations is
followed. As a first step, charter schools are required to operate in accordance with the CSA.
RCW 28A.710.040(1). One of the CSA’s provisions relates to the reporting of enrollment in order
to receive public funds. The CSA requires charter schools to report their enrollment the same way
as common public schools, including using the same definition of “enrolled students.” RCW
28A.710.220(1) (“Charter schools must report student enrollment in the same manner, and based
on the same definitions of enrolled students . . . as other public schools.”). Unless these enrollment
reporting requirements are followed, the charter schools may not receive public funds for the
students. RCW 28A.710.220(1) (“Charter schools must comply with applicable reporting
requirements to receive state . . . funding that is distributed based on student characteristics.”).
“Enrolled student,” in turn, is defined by WAC 392-121-106.9 The definition for “enrolled
students” expressly includes students enrolled in public charter schools. WAC 392-121-106(1)(g).
9 Chapter 392-121 WAC relates to the superintendent of public instruction’s authority to adopt rules for the financial apportionment of state moneys for the operation of public schools. WAC 392-121-003. The chapter is authorized, in part, by the CSA. WAC 392-121-001 (RCW 28A.710.040(5) provides authority for charter schools to be subject to supervision of the superintendent of public instruction to the same extent as public schools, unless otherwise provided in the CSA). Impact does not argue that chapter 392-121 WAC is inapplicable to charter schools.
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And this enrolled student definition also includes students to be entered in kindergarten.
WAC 392-121-106(2). The chapter further defines “kindergarten”:
As used in this chapter, “kindergarten” means an instructional program conducted pursuant to RCW 28A.150.220 for students who meet the entry age requirements pursuant to chapter 392-335 WAC.10
WAC 392-121-10601 (emphasis added).
The destination following this trail of regulations is the conclusion that in order to receive
public funding for enrollment in kindergarten, charter schools are required to follow “the entry age
requirements . . . [of] chapter 392-335 WAC.” WAC 392-121-10601. Impact’s argument that
these requirements of chapter 392-335 WAC do not apply to it because the chapter is not
specifically enumerated as applicable to charter schools fails to address this connective analysis of
the statutes and regulations that do, unquestionably, link their application to charter schools.
B. WAC 392-335-025 REQUIRES SCREENING FOUR-YEAR-OLDS INTO KINDERGARTEN
Once it is concluded that the kindergarten “entry age requirements” of chapter 392-335
WAC apply to charter schools, including Impact, we turn to whether Impact violated them by
enrolling four-year-old students in its kindergarten classes.
The age requirements for kindergarten under chapter 392-335 WAC are found in the
combined reading of two rules. First, WAC 392-335-010 establishes a “uniform entry age for
kindergarten”:
10 Impact argues this definition is designed to specify the programmatic characteristics of kindergarten and it does limit enrollment of students based on age. We disagree. The plain wording of the provision, defining kindergarten with specific reference to “entry age requirements,” belies Impact’s position.
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Except as provided in WAC 392-335-025, a child must be five years of age as of midnight August 31 of the year of entry to be entitled to enter kindergarten.
Second, WAC 392-335-025 provides for an exception to the requirement that kindergarteners be
five years old:
School districts may adopt regulations that provide for individual exceptions to the uniform entry qualifications established by this chapter. Such regulations shall provide for a screening process and/or instrument(s) which measure the ability or the need, or both, of an individual student to succeed in earlier entry.
(Emphasis added.)
Simply put, the WACs only allow enrollment of four-year-olds into kindergarten if the
students are screened based on ability and/or need of the student.
This conclusion creates a conundrum for a charter school like Impact. As seen above, both
the CSA and Impact’s charter contract prohibit screening students on ability or need of the student.
RCW 28A.710.050(1) (charter schools may not limit admission and enrollment to the school on
any basis “other than age group, grade level, or enrollment capacity”); AR at 61 (“There shall be
no admission testing or other evaluation required of any applicant.”). Yet such screening is
required before state moneys may be received for enrolling four-year-olds in kindergarten.
In the end, Impact was left with no viable option to enroll four-year-olds in its kindergarten
classes. Enrollment of these young students without screening violated the entry age restrictions;
enrollment with screening violated the CSA and Impact’s charter contract.
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Accordingly, the Commission’s issuance of the corrective actions on the basis that Impact
impermissibly enrolled four-year-olds as EEK students was not outside its authority or arbitrary
and capricious.11
IV. IMPACT’S DISREGARD OF THE COMMISSION’S DENIAL OF TK
Impact next argues that the Commission’s corrective actions incorrectly asserted Impact
disobeyed the Commission’s decision to not allow TK classes at SSE. The Commission’s full
statement on this issue was that “Impact disregarded the Commission’s denial of TK . . . by
enrolling approximately 60 students who were not yet age five . . . (most of whom had previously
been screened into TK).” AR at 805.
Impact makes the straightforward point that it could not have disobeyed this decision
because it never actually offered TK classes—admitting four-year-olds as EEK students in
kindergarten is not same thing as offering TK classes.
But the overlap is significant. As shown above, when the Commission notified Impact that
it could not offer TK, it merely created two additional kindergarten classes. Impact then contacted
the families of the TK enrollees and shifted those same students from enrollment in TK to
kindergarten as EEK students. Even though the Commission expressed concerns with the
enrollment of four-year-olds, Impact enrolled those same four-year-olds, but under a different
program label.
11 Impact additionally argues that the Commission’s corrective action was contrary to the CSA’s general purpose of recognizing charter schools’ autonomy. However, as explained above, the Commission was within its statutory authority to ensure Impact’s compliance with laws and the charter contract. When the Commission was acting within its statutory authority by issuing the corrective actions on specific violations, Impact’s reference to the general policy of school autonomy is unavailing.
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Given these decisions, Impact interprets the Commission’s language about disobeying the
Commission too narrowly. The reasons for the Commission’s concern with TK students were the
same as with EEK students. First, Impact’s request to offer TK was denied because there was no
regulatory framework to support TK. Second, the Commission believed preauthorization was
required to offer TK because the “Commission and Impact did not contemplate TK as an option
when Impact applied to the Commission to open SSE and when Impact signed the SSE charter
contract.” AR at 434. Third, the Commission cited a need to draft policies to resolve the apparent
conflict between the need to screen students into TK classes with the prohibition on charter schools
of screening students.
Each of those reasons applies equally to EEK enrollment. Just like for TK, there was no
regulatory framework in place for charter schools to offer EEK enrollment for four-year-olds, and
EEK enrollment was not initially contemplated when drafting and signing the charter contract.
And critically, the same issues regarding impermissible screening for TK and EEK enrollment
exist. Both options for enrollment of these students require screening to determine if the student
is a good fit for and eligible to participate in the programs.
Because the concerns raised by the Commission are identical for both TK and EEK
enrollment, the language used by the Commission for this deficiency was broad enough to capture
Impact’s enrollment of the EEK students. Therefore, the Commission was not willful and
unreasoned in its assertion that Impact disobeyed its denial of Impact’s plans to offer TK.
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CONCLUSION
Impact fails to show that the Commission acted arbitrarily and capriciously or outside of
its statutory authority when it issued the corrective actions against Impact. Therefore, Impact is
not entitled to relief under the APA.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J. We concur:
MAXA, P.J.
LEE, J.