Tuesday, August 27, 2013
In July, I posted on a new challenge to the constitutionality of Washington's charter statute here and here. I noted that these challenges had not been particularly successful in the past, but that the specific nature of Washington's state constitution and the charter law made that case a potential winner. Now, some in Tennessee seem to have the same feeling about their charter law and constitution. John Borkowski, a long time education law attorney, who represents large school districts in civil rights and other major cases, argues that Tennessee’s 2002 charter law in violates the state constitution because it “seems to impose increased costs on local governments with no offsetting subsidy from the state.” Cribbing from the Tennessean (the state's major newspaper):
A section of the Tennessee Constitution says that no law shall impose “increased expenditure requirements on cities or counties” unless the Tennessee General Assembly ensures the state shares those costs. Under the state’s charter school funding formula, the combined state and local per-pupil dollar amount follows students to their new schools. This equates to about $9,200 per student in Nashville.
“The charter school receives all of the state and local per-pupil expenses, while the [local districts] still must cover existing fixed costs,” Borkowski wrote, adding: “There does not appear to be any state subsidy to share in these increased costs.”This legal theory, however, is distinct from the one forwarded in Washington and other charter school challenges, as it proceeds based on a general budgeting and funding standard in the constitution rather than an education clause. Analogous claims, however, have been made under education clauses. This claim also reminds me of the litigation filed against the federal government arguing that NCLB was an unfunded mandate. The federal courts rejected those claims.
Borkowski and his client, Metro Nashville Public Schools have not filed suit, nor specifically indicated that they will. At this point, they are just raising the issue, which seems a little odd given that the charter law is now over 10 years old.
For more, see the Tennessean's story.