Wednesday, December 4, 2013
North Carolina Court of Appeals Holds that State Board Can Refuse to Act on Virtual Charter School Application
The North Carolina Court of Appeals upheld a superior court's decision yesterday that the State Board of Education could refuse to act on a virtual charter school's application. According to North Carolina station WRAL.com, the appellate court found that "[u]nder state law, the State Board of Education 'is vested with sole authority regarding charter schools in North Carolina, including all decisions regarding the formation and operation of such school.' " The case highlights some of the complexities of having parallel authorizing procedures for new schools. When the North Carolina legislature lifted the 100-school cap on charter schools in 2011, it did not address virtual charter school programs. Following the new law, the State Board of Education (SBE) developed a “Fast Track” approval process limited to traditional charter schools. In November 2011, a nonprofit organization called North Carolina Learns (NCL), created by online education company K12, Inc., submitted a Fast Track application to open the North Carolina Virtual Academy. NCL and K12, Inc., brokered a deal in 2012 with the Cabarrus County's School Board to set up a charter school with a statewide reach. According to WRAL.com, NCL agreed to pay 4 percent of its revenue to the school system in Cabarrus, located north of Charlotte, as well as pay K12." NCL was approved to open by the Cabarrus County Board of Education (CCBE), with the caveat that “[i]f the preliminary charter entity is other than the State Board of Education please contact the Office of Charter Schools for guidance.” NCL did not do that, but did forward its application to the SBE. The SBE did not respond, having announced in October 2011 (before NCL's application) that it would not approve any virtual charter schools in the 2012-13 school year. The rebuff prompted NCL to sue, arguing that the SBE's failure to respond to NCL's application within the Fast Track period stripped the agency of jurisdiction over the matter. NCL argued that its application should be approved by operation of law. See N.C.G.S. § 115C-238.29D(a). Last year, a North Carolina Superior Court judge held that SBE was within its discretionary power to ignore NCL's application, reasoning that a local board of education "is not experienced in, nor equipped as the SBE, with the staff and know-how to review, evaluate, and approve the application of a charter school designed to serve a statewide clientele, nor is it authorized to give final approval for such operation." Read more about North Carolina State Board of Education v. North Carolina Learns, Inc. here.