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UNPUBLISHED OPINION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.

Filed

Washington State

Court of Appeals

Division Two

May 31, 2023
No. 57035-1-II

2

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 
No. 57035-1-II

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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. 
No. 57035-1-II

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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. 
No. 57035-1-II

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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-yearolds 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. 
No. 57035-1-II

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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.
No. 57035-1-II

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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 
No. 57035-1-II

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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. 
No. 57035-1-II

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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. 
No. 57035-1-II

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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 
No. 57035-1-II

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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). 
No. 57035-1-II

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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 preenrollment 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.
No. 57035-1-II

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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. 
No. 57035-1-II

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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. 
No. 57035-1-II

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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. 
No. 57035-1-II

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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. 
No. 57035-1-II

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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. 
No. 57035-1-II

20

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.