Tuesday, October 15, 2013
In the early years of the charter school movement, opponents routinely charged that they were not really public schools, but rather private. Over the past decade, charter advocates, in the effort to gain public support, have insisted they are public and have seem to have won the war of public opinion and conceptual framing. As a testament to their success on that front, scholars, in comparing of public schools to charter schools, have stopped discussing public schools versus charters and, instead, have begun referring to public schools as “traditional public schools,” charters as “public charter schools,” and charters and traditional public schools collectively as “public schools.” But a few recent lawsuits have shown some charter school operators straying from the party line and potentially threatening this "victory."
Last spring, in an effort to avoid misappropriation of public fund charges, the founders of a charter school in California attempted to avoid conviction by arguing that the school was a private corporation and, thus, not subject to the laws governing public schools and the use of public money. In fact, the California Charter Schools Association supported them with this argument. The court did not buy the argument. But in another suit by alleging violations of a teachers’ liberty and free speech, the court bought a charter school's defense that it was not a state actor and, thus, not subject to the constitution. A few other analogous instances, such as labor union disputes, have occurred recently, in which charters have tried to minimize their public standing and courts have sided with them.
Underlying principle in these cases is that some charter schools are only public when its suits them and some courts are willing to go along with charters' self-characterization. Thus far, it is only in the context of criminal prosecution—the most serious of legal issues—that courts seem to be getting gotten hard-nosed with charters that now want to claim they are private. Stay tuned to the developments in the new prosecution against the operators of Options Public Charter School in DC for diversion of public funds. I suspect the issue will come up there as well.