Wednesday, October 12, 2016
Last year, advocates filed a lawsuit in Massachusetts that attempted to use the state education clause and school finance precedent to declare a cap on charter schools unconstitutional. The theory was that many current schools were so bad that they deprived students of a quality education. Since quality charter schools were down the road and could be expanded, the remedy was to grant students the access to more charter schools, which would require lifting the statutory cap on them. The theory, in many respects, resembled the strategy of the constitutional challenge to teacher tenure in California.
Last week, the trial court in Massachusetts dismissed the charter case. The court reasoned that the education clause does not create an individual right to education and, thus, does not create an individual right to demand access to other school opportunities and facilities. Rather, the education clause creates a duty on the part of the state to create a constitutionally adequate education system. Exactly how it does that is a matter of legislative policy and discretion, to which courts should defer. Plaintiffs' attempt to have the court insert their legislative preferences for those of the state is misguided.
I would generally agree with this basic rationale and certainly agree that plaintiffs' claims were a misguided use of the education clause. Their claim was really policy advocacy masquerading and constitutional analysis. With that said, I would caution the need for a little more nuance in dismissing such cases.
First, as I outline here, the notion of an education duty with no corresponding education right is highly problematic. If the state has a duty, it should be to someone or some group. While the Massachusetts trial court is correct that this does not mean that each individual student can demand individualized education, the constitution should require that the state create policies that ensure that the educational needs of individual students and students as a whole are met. If a policy is consistently denying students education, they should be able to challenge it and receive some sort of remedy. The duty-right distinction in other cases has been used as subterfuge to release the state from doing anything. Since there is no right, court can reason there is no basis for compelling the state to undertake its duty. The idea that this court might be adding support for that argument is worrying.
Second, the problem is particularly acute in school discipline and school finance cases. In discipline cases, some courts have used the duty-right distinction to flatly reject plaintiffs attempts to rely on their state's education clause to challenge suspension and expulsion. As a result, states can operate discipline systems that I argue here and here are entirely inconsistent with their duty to deliver equal and adequate education opportunities. In addition, in the traditional school finance case, there are numerous examples of states simply refusing to implement the remedies that courts have ordered. South Carolina, Kansas, and Washington immediately come to mind as examples in the past year. James Ryan and I have separately argued that when the state refuses to carry out its duty to implement a remedy to constitutional violations, it is within courts' power and responsibility to grant students immediate relief. This might be in the form of the right to exit their current public school and enroll in another public school. In other words, it should be beyond the state's discretion to force a student to remain in a school that the state refuses to bring up to constitutional standards. To be clear, however, this is not to say that caps on charters or student assignment statutes are unconstitutional or that students or their attorneys have the right to dictate where they should go to school. The point is simply that if the conditions in a particular school are unconstitutional, the state owes the students a remedy. If states, after the opportunity to do so, refuse to implement a remedy, courts can and should exercise injunctive relief on behalf of students.
For those less interested in doctrinal nuances, the trial court holding got it right: the cap on charter schools does not present a constitutional problem. Nonetheless, the initial lawsuit was enough to help get the issue of eliminating the cap on the ballot this November. So voters will get the final say. Recent polls indicate voters are against lifting the cap.
Friday, September 30, 2016
The Education Law Center offered this summary yesterday:
Education Law Center welcomes the Nevada Supreme Court decision in Lopez v. Schwartz firmly declaring the state's Education Savings Account (ESA) voucher program unconstitutional and permanently blocking its implementation.
The Court's ruling makes clear that the Nevada Legislature violated a constitutional prohibition against the use of public education funding for any purpose other than the operation of the public schools. The ESA voucher program would have diverted funds from the public schools for private education expenditures.
This decision strikes at the heart of the ESA voucher program, which was designed to remove significant amounts of funding from public school budgets to pay for private school tuition and other expenses, even for the wealthy. The court's sweeping ruling permanently blocks the program from being implemented in the future.
"The Court confirmed that the parent plaintiffs' claims were correct - the state constitution expressly directs that funds appropriated by the Legislature for public education be used for that purpose and that purpose alone," said David G. Sciarra, ELC Executive Director, and, along with ELC attorney Jessica Levin, a member of the pro bono legal team representing Nevada parents and children in the voucher lawsuit.
ELC is a partner in Educate Nevada Now (ENN), a Nevada campaign in support of public education founded by the Rogers Foundation. ENN and the Rogers Foundation provided crucial support in the voucher lawsuit. With implementation of the voucher program now blocked, ELC will continue to work with ENN and the Rogers Foundation to improve the educational experiences of the half million children in Nevada's public schools.
For more information about Lopez v. Schwartz, please visit these ELC web pages.
While these cases challenging the use and misuse of public education funds have been muddled over the years, I get the sense that recent courts have been slightly more willing to consider seriously the problem of using funds that state constitutional clauses commit to public schools for vouchers and charters. Recall last year that the Washington Supreme Court struck down a the state's charter statute because of the conflicts it created in regard to the states constitutional obligations in regard to traditional public schools. Unfortunately, courts have been less willing to seriously consider the constitutional problems that arise when states simply underfund public schools as a general principles. See here.
Get the recent Nevada Supreme Court decision here: Download 16-30306
Thursday, August 25, 2016
Lawsuit Revisits the Question of Education As a Fundamental Right Under the U.S. Constitution, But Is There More To It Than That?
Plaintiffs in Connecticut have filed a new lawsuit against the state challenging the "inexcusable educational inequity and inadequacy" in its school "that prevent inner-city students from
accessing even minimally acceptable public-school options." The complaint argues that these problems are a result of:
First, Connecticut has instituted a moratorium on new magnet schools (Conn.
Gen. Stat. § 10-264l(b)(1); Public Act No. 09-6, § 22 (Spec. Sess.); Public Act No. 15-177, § 1), despite the fact that a large majority of Connecticut’s magnet schools consistently outperform inner-city traditional district schools.
Second, Connecticut’s arcane and dysfunctional laws governing public charter
schools (Conn. Gen. Stat. §§ 10-66ee(c)-(d), 10-66bb(a), 10-66bb(g)) prevent high-performing charter schools from opening or expanding in the State, despite the fact that Connecticut’s few charter schools consistently outperform inner-city traditional district schools.
Third, Connecticut’s inter-district Open Choice enrollment program (Conn. Gen.
Stat. §§ 10-266aa(c), 10-266aa(e), 10-266aa(f), 10-266aa(g), 10-266aa(h)) penalizes school districts that accept students from inner-city school districts, thus dooming the viability of the very program ostensibly designed to provide Connecticut’s students with quality public-school options.
As a remedy, plaintiffs ask:
for a simple declaration that would have immeasurable benefits for many thousands of children: By forcing Plaintiffs and thousands of other students to attend public schools that it knows are failing, while impeding the availability of viable public educational alternatives through the Anti-Opportunity Laws, Connecticut is violating students’ federal due process and equal protection rights. Connecticut should be required to take any and all steps necessary to ensure that neither Plaintiffs nor any other students within its borders are forced to attend a failing public school.
The case is a hard one to pigeonhole. On the one hand, it attempts what I and others have long advocated for: a reconsideration and overturn of San Antonio v. Rodriguez. As the Connecticut Mirror reports,
Forty-three years have passed since the U.S. Supreme Court narrowly ruled in the landmark San Antonio v. Rodriguez school-funding case that education was not a constitutional right and that the disparate spending on education for students from low-income neighborhoods was not a violation of the equal protection clause of the U.S. Constitution.
"The time has come for the federal courts to recognize a federal constitutional right to some minimal, adequate level of education. We felt Connecticut was a very good place to bring it," said Theodore J. Boutrous, one of the attorneys representing the seven student plaintiffs from low-income families.
Boutrous told reporters during a Wednesday conference call that the Rodriguez decision "left open the possibility that a claim like ours could succeed" since that case focused on school funding disparities while this lawsuit focuses on the limited options students have to leave failing schools.
. . .
Experts observing this case say a lot is at stake.
On the other hand, the case takes a factual angle in making out this claim that sounds a lot like free market thinking in education. Moreover, Students Matter, the group that has lead the constitutional challenge to teacher tenure, is backing the case. As a factual matter, the case would appear to be about student choice. It holds up the interdistrict magnet schools created as a result of the Sheff v. O'Neill litigation, which are designed to further integration, as important models for improving educational opportunities for minority student, but argues those type of magnets are not the only viable option. More charter schools, it argues, could create similar options to escape currently unconstitutional traditional public schools. In this respect, the plaintiffs are trying to, in effect, piggy back off of the success of Sheff.
My initial response is that there is a big gaping hole in this use of Sheff magnets. Sheff magnets are an integrative cure to a segregative injury. It is not clear that charters are a proportional or analogous remedy to anything, nor did I notice any indication that these charters would follow the lead of Sheff magnets. With that said, the complaint follows up its charter school claim with the suggestion that the state expand inter-district magnet opportunities, which is consistent with Sheff.
On the whole, however, these limited opportunities are evidence that the plaintiffs say shows that the state is failing to offer even a minimally adequate education, which Rodriguez indicated might be protected. The big question for me is what the plaintiffs really want. Is it to right the wrong of Rodriguez or to dress up a charter school plea in language that sounds appealing to a lot of civil rights advocates that might otherwise be adverse? I do not know enough about the key players in the case to have a firm opinion, but the prior constitutional challenge to teacher tenure offers some hints. What I am confident of, however, is that danger lurks if issues as weighty as Rodriguez are in the wrong hands.
Monday, August 22, 2016
What Does the New Public Advertising Battle over Charter Schools Tell Us about Overall Education Debates?
Last week, the story was the potential rift between local minority communities and their national and state leaders. This week, the story may be the amount of money being spent to counteract those those national and state level leaders who oppose charter school expansion. The Boston Globe reports:
A new $2.3 million ad boosting the expansion of charter schools in Massachusetts lists the campaign’s top five donors on screen, in accordance with state law. But the singularly bland names, including Strong Economy for Growth and Education Reform Now Advocacy, give no hint of who is writing the checks.
Four of the five donors to the procharter committee are nonprofit groups that do not, under state law, have to disclose their funders, allowing the individuals backing the effort to remain anonymous.
The cloak of secrecy surrounding the financing of what could be the most expensive ballot campaign in state history has frustrated election officials and underscored the proliferation of untraceable money in political races across the country.
. . . .
The ballot campaign known as Question 2 — which would allow for the creation or expansion of up to 12 charter schools per year in low-performing districts — is expected to smash the $15.5 million that was spent, mostly by gambling interests, to defeat a 2014 ballot question that would have repealed the state’s casino law.
This influx of money could be coincidental, but one has to wonder whether it is a response to the charter lobby's sense that things are slipping away.
Friday, August 19, 2016
Massachusetts Locked Over Charter School Expansion, Offering a Glimpse of the Politics Playing Out at the National Level
The national opposition to charters from the NAACP and Black Lives Matter is strengthening the position of those at the local levels who might otherwise fold under pressures to expand charters. At least, that appears to be the case in Massachusetts. As some may recall, an advocacy group filed a novel claim in Massachusetts last year arguing that the state's limitations on the number of and funding for charters violated the state constitution's mandate of a quality education. The theory, in many respects, copied that of the constitutional attack on teacher tenure in California: if there is an education policy you do not like and you think your policy would produce better results, challenge the policy you do not like as an unconstitutional impediment to a quality education. In fact, it worked at the trial level in California. But as I demonstrate here, constitutional education claims require a lot more than this. The challenge to tenure was riddle with factual holes and the Court of Appeals eventually saw through them. But the charter claim in Massachusetts is not even theoretically valid.
The state's obligation is to provide a quality education in its traditional public school system, not create an alternative system of charters for those who want to exit broken schools. To be clear, broken traditional public schools are a constitutional violation, but the notion that courts could mandate charters as the remedy is an enormous stretch. Nonetheless, the threat this litigation posed and, more important, the rhetoric and attention it brought to the issue of charters appeared to turn the political tide. Numerous leaders in the state, including the governor, were voicing support for a change to charter laws in the state shortly after the lawsuit. Quite honestly, I thought a new charter law was a foregone conclusion a earlier this year.
The current story out of Boston suggests the pendulum is already swinging back. Democratic leaders are standing stronger against charter expansion. And given that this particular change being debated will disproportionately fall on minority schools and communities, their views at both the local and national level are sure to loom large. But as my posts the past two days show, the differences in opinion between local and national opinions can run deep. The interesting question in Massachusetts is the possibility that differences in opinion between state leaders and local communities may also run deep.
Wednesday, August 17, 2016
Making Sense of African American Support for Charters: Affirmative Support or a Rational Response to Derelict States?
I rarely come back to a subject on consecutive days, but the headline of story this morning and the fact that so much was left unsaid in my post yesterday offers a compelling occasion. This morning, Keli Goff penned an article titled "NAACP Calls for Charter School Ban, Leaves Black Parents and Children Behind." The story led with the statement that "Groups that want to be the voice of people of color have to listen to all people of color, not just those reciting one party’s platform and talking points." Later she cites data that "that 65 percent or more of black parents in Louisiana, New Jersey, and Tennessee support charter schools—and that 70 percent of black voters believe in some from of educational choice for parents."
I cannot quibble with her basic factual points. They were at the thrust of my article yesterday and my conclusion that the "charter school gig" was far from up. What bears more discussion, however, is why so many families and communities want them. Is it the intrinsic merit of charter schools? Is it distrust of the traditional system? Or is it that existing opportunities are so deficient that they feel forced to accept consolation prizes like charter schools or vouchers?
No one motivation or answer fits all situations. No doubt, there are many excellent charter schools out there and the hope that one can secure a seat in one of those schools can be enough to drive politics. On top of that, the charter industry has a lot of incentive to oversell those success stories. The large majority of charters, however, do not fall in the success story category and a large chunk of families are not motivated by a lottery ticket mentality when it comes to their own children, although some surely succumb to it.
Tuesday, August 16, 2016
At its recent national convention, the NAACP passed a resolution calling for a moratorium on charter schools. At roughly the same time, Black Lives Matter issued its policy agenda for the nation, which also included a moratorium on charter schools. The NAACP offered this justification for its position:
- “Charter schools have contributed to the increased segregation rather than diverse integration of our public school system.”
- “Weak oversight of charter schools puts students and communities at risk of harm, public funds at risk of being wasted, and further erodes local control of public education.”
- " [R]esearchers have warned that charter school expansions in low-income communities mirror predatory lending practices that led to the sub-prime mortgage disaster, putting schools and communities impacted by these practices at great risk of loss and harm…”
This turn of events is worth special note because the African American community's initial support for charters was a driving force for their adoption. Without state level support and the local demand of African American communities, I would imagine that charter school expansion and enrollment would be only a fraction of its current levels. But now that we have so many charters, I wonder if these new positions really have the capacity to reverse the tide.
Wednesday, August 10, 2016
Unequal Access Report: Twenty Percent of California's Charter Schools Have Exclusionary Admissions Policies
The ACLU Foundation of Southern California and the Public Advocates have released Unequal Access: How Some California Charter Schools Illegally Restrict Enrollment. Unequal Access reports that over 20% of California’s charter schools (about 253), have exclusionary admissions policies. At least 22 of those schools have policies that expressly exclude low academic performers, the very set of students who are often cited to justify charter creation. Cribbed from the report’s summary:
Although charter schools may be privately controlled and receive non-government funding, they are part of California’s public education system. The California Constitution requires all students to have equal access to educational opportunity, and the state legislature made this principle clear in the California Charter Schools Act, which plainly requires charter schools to “admit all pupils who wish to attend.” Except for limitations due to space, charter schools may not enact admissions requirements or other barriers to enrollment and must admit all students who apply, just as traditional public schools cannot turn away students.
Our review of California charter schools’ reveal that over 20% have written policies reveals that illegally prevent students from enrolling or remaining at their schools because the policies:
- Deny enrollment to students who do not have strong grades or test scores.
- Expel students who do not maintain strong grades or test scores.
- Deny enrollment to students who do not meet a minimum level of English proficiency.
- Discourage or preclude immigrant students from attending by requiring parents/guardians or
- students to provide Social Security numbers or other citizenship information before enrollment.
- Select students based on onerous pre-enrollment requirements such as student or
- parent/guardian essays or interviews.
- Refuse to enroll students unless their parents/guardians volunteer or donate money to the school.
The report recommends that charter school operators eliminate all exclusionary admission requirements that restrict student enrollment on the above grounds.
Thursday, July 28, 2016
On July 11, the Southern Poverty Law Center (SPLC) filed a lawsuit alleging that the school funding provisions of the state charter school law passed by the Mississippi Legislature are unconstitutional.
The complaint, in Araujo v Bryant, points out that the Mississippi Constitution requires schools to be under the supervision of the State and local boards of education in order to receive public funding. However, under the Charter School Act (CSA), charter schools receive public funding even though they are exempt from the oversight of the State Board of Education, the Mississippi Department of Education, and local boards of education.
The lawsuit calls for the Court to strike down the funding provisions of the CSA.
"A school operating outside the authority of the state board of education and the local school board cannot expect to receive public taxpayer money," said Jody Owens, managing attorney for SPLC's Mississippi office. "The state constitution is clear on this matter."
Charter schools in Mississippi are accountable to the Mississippi Charter School Authorizer Board, a body appointed by the governor and lieutenant governor, which receives three percent of the public tax dollars going to the charters it authorizes.
The complaint explains that two charter schools are currently operating in Mississippi, both within the boundaries of the Jackson Public School District (JPS). In one school year, more than $1.85 million was diverted from the local district to fund these schools. That amount could have paid the salaries of 42 public school teachers, according to the complaint. Given that a third charter school is set to open within JPS's geographic boundaries, the complaint notes that the local schools stand to lose more than $4 million in the 2016-17 school year.
The lawsuit warns that the opening of more charter schools will compound the financial harm. There are currently applications pending for four more charter schools. Each charter school would be located within the Jackson Public School District, drawing more funding away from the schools that are under the local school board.
"I sent my children to a public school because I believe in our public schools," said Cassandra Overton-Welchlin, a plaintiff in the case and the mother of two children enrolled in the Jackson Public School District. "I'm outraged that state and local tax dollars are funding charter schools in a way that threatens the existence of important services, including services for those with special needs, at my children's school. As a taxpayer, I expect my property tax dollars will be used to support local public schools, which educate the vast majority of students in Jackson."
The lawsuit was filed in the First Judicial District of the Chancery Court of Hinds County, which includes Jackson, the state capital.
Wednesday, July 13, 2016
The State of Mississippi is being sued by parents who contend that a recent law unconstitutionally district public tax dollars from public school districts revenues to charter schools. Under the Mississippi Charter School Act of 2013 (CSA), charter schools in a public school district are entitled to a share of that district's state ad valorem tax revenue. The lawsuit's plaintiffs contend that a provision of the Mississippi Constitution forbids funding any school that is not a "free" school under the control of either the State Department of Education or district officials. (Mississippi's charters are instead supervised by an independent governing board.) The plaintiffs allege that the Jackson school district has already given $1.8 million of its funding to the two currently operating charter schools. A third charter is set to open in the coming school year,and the Jackson district school could be required to give up to $4 million to charter schools, resulting in shortfalls in personnel and education quality. The plaintiffs are represented by the Southern Poverty Law Center, and the complaint in Arujo v. Bryant may be viewed on scribd here.
Tuesday, June 14, 2016
Federal Court Refuses to Expand School Voucher Program That Was Declared Unconstitutional By Colorado Supreme Court A Year Ago
Almost a year after the Colorado Supreme Court declared that a district's school voucher program violated the state constitution's separation of church and state doctrine (which Derek discussed here), a federal district court in Colorado denied a renewed attempt last week to force the Douglas County (CO) School District School Choice Grant Program to include religious schools, according to the Denver Post. The federal court questioned whether the plaintiffs, represented by the religious-freedom organization Institute for Justice, were in a truly adversarial position with the defendant, the Douglas County School District. The federal court also questioned whether the plaintiffs could show a likelihood of success to warrant an emergency injunction. The court also stated that the Douglas County families seeking the voucher expansion could not show irreparable harm because only a few students had even shown interest in the program and no schools have yet agreed to participate in the School Choice Grant Program. The ACLU of Colorado and law firm Arnold & Porter have moved to intervene in the case, arguing that the plaintiffs’ motion for preliminary injunction is essentially a collateral attack on the Colorado Supreme Court's judgment.
Monday, June 13, 2016
Susan DeJarnatt, Kerrin C. Wolf, and Mary Kate Kalinich have posted their new paper, Charting School Discipline, on ssrn. It focuses on discipline in charter schools and their potentially distinct approaches. As recent civil rights complaints in New Orleans and due process litigation in California have shown, charter school discipline is of growing importance to the overall conversation regarding necessary reforms to school discipline. DeJarnatt and her colleagues offers this abstract:
Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students.
We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.
We hope that this work will spur future research on implementation of charter school discipline policies to illustrate how charter schools are using their codes. Further, we hope to see the charter sector develop model disciplinary codes that move away from a zero tolerance punitive model towards disciplinary systems based on restorative principles.
Wednesday, May 25, 2016
New Jersey's Failure to Assess Effects of Charter School Expansion on Already Underresourced Newark Schools Moves to Court of Appeals
This from the Education Law Center:
Acting on behalf of Newark school children, Education Law Center has filed an appeal of NJ Commissioner of Education David Hespe’s February 2016 approval of a massive enrollment increase in seven Newark charter schools over the next five years.
At issue in the appeal is the data and research evidence presented by ELC to the Commissioner demonstrating that expanding charter enrollments at this time would exacerbate the budget crisis in the State-operated Newark public schools (NPS) and trigger even deeper cuts to teachers, support staff and programs in already under-resourced NPS schools. ELC also presented evidence to show that expanding charters would further concentrate at-risk students in district schools, especially students with disabilities and English language learners (ELLs). These students require additional programs and interventions that have been reduced and cut in NPS schools over the last several years.
“This appeal is not about the merits of charter schools or district schools, but rather about the State’s overarching obligation to ensure a thorough and efficient education for all public school students in Newark,” said David G. Sciarra, ELC Executive Director. “This appeal raises the abject failure of the Commissioner to perform his mandated constitutional duty to make certain that before charter schools can expand, all Newark children have the resources they need to succeed in school, whether they attend a district or charter school.”
“The Commissioner simply ignored the overwhelming evidence in the record that a further increase in charter enrollment at this time will harm children and schools throughout the city,” Mr. Sciarra added.
In their applications for renewal, seven Newark charter schools submitted requests to Commissioner Hespe that, taken together, would greatly increase overall charter enrollments over the next five years. The Commissioner approved these requests without explanation and without providing reasons. The approved charter increase totals nearly 9,000 additional students over five years, from just under 10,000 to almost 19,000 students.
Several of the charters sought substantial increases. For example, Team charter school, operated by the New York-based KIPP network, secured the green light to increase enrollment from 3196 to almost 8000 students and to add up to six new charter schools. The Commissioner’s approvals will almost double the current enrollment in these seven charters by the 2020-21 school year.
The approved expansion will also increase the seven charters’ share of Newark’s total charter population from 20% to approximately 37%. If enrollment in the district and in the fourteen other charters remains stable, the Commissioner’s decision will mean that by 2020-21, nearly half of all Newark’s school children will be enrolled in the charter sector.
Before the Commissioner, ELC submitted extensive comments on the charters’ requests for expansion, including detailed research documenting how the State’s decision to rapidly expand charter enrollments from 2009 through 2015 has put the NPS budget in crisis. The data shows charter enrollments nearly tripled to 12,885 students during that period, while the percentage of students with disabilities and English language learners (ELLs) in NPS schools increased significantly.
Further, while the NPS budget has been flat since 2011 as a result of the State’s failure to fund New Jersey’s school funding formula, payments from the budget to charter schools have risen dramatically to $225 million, representing 27% of the total NPS budget. ELC also documented that the combination of flat budgets and rising charter payments has triggered severe reductions in spending on regular classroom instruction, guidance and other support services, and special education and bilingual education in NPS schools.
The NJ Supreme Court, in several rulings, has imposed upon the Commissioner an affirmative constitutional obligation to carefully evaluate the impact that opening or expanding charter schools will have on the loss of funding and the segregation of students in districts served by the charters.
“The Commissioner must meet his constitutional obligation to assess and determine the impact that the loss of funding from increased charter payments will have on the ability of the Newark district to provide a thorough and efficient education to all public school children,” said Michael Stein of Pashman Stein in Hackensack, the firm representing ELC on this appeal. “The Commissioner did not evaluate the impact of charter expansion on the NPS budget, even though ELC presented a compelling record that the expansion would mean less funding, more cuts to essential staff and programs, and the further concentration of students based on disability and English language proficiency in NPS schools.”
Monday, May 2, 2016
Chapel-Hill, North Carolina, has long boasted one of the finest public school systems in the nation. They have a community totally committed to education; they fund their schools at high levels; they pay their teachers a nice supplement; and their students are apparently a pleasure to teach. I was once told that with the number of AP courses offered (and the extra GPA points they offer), the average GPA at Chapel Hill was close to 4.0. What should come as a surprise is that even Orange County-Carrboro (the district in which Chapel hit resides) is struggling to retain teachers. The News and Observer reports:
Orange County’s school districts have asked county commissioners for $8.3 million more next year, in part to slow the tide of teachers leaving for other districts.
The Chapel Hill-Carrboro and Orange County school districts pay supplements of 10 percent to 12 percent on top of state-mandated base salaries for new teachers. But annual turnover has risen to 18.5 percent in the Chapel Hill-Carrboro schools and 18 percent in Orange County, district officials said.
That left Chapel Hill-Carrboro without enough qualified elementary teachers this year and made it difficult to find other teachers, they said. Competition is compounding the problem. Wake, for instance, offers new teachers up to $2,500 more, Chapel Hill-Carrboro officials said, and invested $16 million in teacher salaries in October, the first step in a five-year plan to meet the national average.
That prompted the school board in April to raise next year’s supplement to 16 percent and offer signing bonuses for math, science and exceptional class teachers.
“The recruiting season is now, so there’s certainly no way we could stand at a table next to Wake and say, ‘Hey, come to Chapel Hill-Carrboro, we’ll give you 12 percent, and they’ll give you 18,’” school board member Rani Dasi said. “It really didn’t feel like a choice for us.”
The source of the problem is the overall disinvestment in education since the recession, and North Carolina is one of the nation's worst examples. When one of the state's-if not the nation's finest districts--struggles to hold onto its teachers, one can only imagine how tough things are in disadvantaged communities. More here on funding cuts, teacher shortages, and the dwindling commitment to public education (along with suggestions about how to avert the next educational crisis).
Wednesday, April 27, 2016
Parents Allege Money Earmarked for School Integration Was Diverted to Charter Schools; Now They Want It Back
Plaintiffs in St. Louis, Missouri, have filed a very interesting challenge to recent charter funding practices. They allege that a local sales tax increase earmarked exclusively for desegregation remedies has been diverted to charter schools since 2006. The tax was originally passed in 1999 as part of a consent agreement in school desegregation case. The complaint alleges that the tax was properly spent from 1999 to 2006, but in 2006 it began being diverted to charter schools. The complaint is now asking that those funds be reclaimed for the traditional public schools and desegregation. As one might imagine, this is creating a huge division between families with students currently attending charters, as the remedy the plaintiffs seek would effectively bankrupt the charter system.
Whatever the merits of the complaint, it highlights another example of the ongoing tensions between creating new funding streams for charter schools at the same time that traditional public schools are being underfunded. For instance, Pennsylvania's newest charter funding scheme during the recession required local school districts, rather than the state, to reimburse charters, and the state set unreasonably high reimbursement rates. This nearly bankrupted Chester public schools and it caused Philadelphia schools to run significant deficits. In North Carolina, statutes allowed charter schools to tap into school districts rainy day funds. This meant that the money that districts saved for long term budget shortfalls could be spent immediately by charters. For more on the contrasting funding commitment to traditional public schools and charters, see here.
Thursday, March 31, 2016
Julie Mead and Maria Lewis have published a new study in the American Educational Research Journal titled The Implications of the Use of Parental Choice as a Legal “Circuit Breaker.” The article explores laws "that result in taxpayer subsidies to religious education, perpetuate racially identifiable schools, provide public single-sex schools, and allow instances where children with disabilities do not receive needed special education and related services." They examine the United States Supreme Court's reliance on parental choice as a "circuit breaker" that permits what would otherwise be unconstitutional state action. Their abstract states:
This study explores four instances where parental choice has been employed as a legal “circuit breaker”: (a) First Amendment Establishment Clause cases related to public funding, (b) Fourteenth Amendment Equal Protection cases regarding race-conscious student assignment, (c) Title IX regulations concerning single-sex education, and (d) a provision of the Individuals with Disabilities Education Act (IDEA) related to parental refusal to consent to initial special education services. In each example, while the end result would not be legally permitted if directed by some governmental decision maker, the presence of parental choice produces a permissible indirect path to the same policy outcome. This study traces the legal underpinnings of each example and discusses their implications for policymakers and practitioners.
The paper concludes that in each of these examples,
a new legal boundary that hinged on the relevance of parental choice in legal analysis was set with respect to permissive educational policies. As this examination shows, those shifting boundaries both free policymakers in some instances (e.g., the creation of private school vouchers; single-sex education) and constrain them in others (e.g., race-conscious policies to further integration, challenging parents’ refusal to permit special education).
Analysis of these instances of circuit breaker logic also raises important public policy questions that illustrate the implications of these legal boundary shifts and the importance of understanding them. Will continuing or increasing use of parental choice as a legal circuit breaker alter the value traditionally placed on equal educational opportunity? Will continuing or increasing use of parental choice as a legal circuit breaker result in situations in which parents’ rights and children’s rights are in tension with each other? Will continuing or increasing use of parental choice as a legal circuit breaker modify the principle of parens patriae as applied to education? In short, the use of parental choice as a legal circuit breaker raises questions about the values held dear by a society and the role public education plays in that society (Goodlad & McMannon, 1997; Minnow, 2010; Ravitch, 2010; Superfine, 2013). Whether the uses of parental choice as a legal circuit breaker outlined here signal a shift in those values remains to be seen. What is clear is that the application of the circuit breaker metaphor bears watching by all with an interest in education.
Wednesday, March 30, 2016
The Southern Education Foundation has released a new report on private schools, race, and their rapid growth of vouchers in recent years. The report demonstrates that new programs are concentrated in the South. It also notes that there have been increased efforts at the federal level to use federal funds for vouchers. Those efforts have only failed by narrow margins. The point of the report is to signal the segregative threat that the expansion of these programs may pose.
In 2012, for instance, African American students were 15.8% of the public school population, but only 9.2% of the private school population. Conversely, whites were 51.7% of the public school population but 72.1% of the private school population. One might simply write this off to socio-economic disparities, but the report emphasizes that private schools in the south have historically been a reaction to integration and that over the past fifty years, the South's share of the nation's private school population has risen from less than 15% to over 30%. And when we look at the demographics of private schools in southern states, the disparities between public and private schools is even more shocking.
In Mississippi, whites were a slim majority in public schools in 1998, but were 90.8% of the private school population. In South Carolina, whites were 58.7% of the public school population, but 90.1% of the private school population. The most telling data point, however, was the variation among states. While the gap between white enrollment in public and private schools was significant in all but one southern state, the gap itself seemed to be a reflection of the how large the white majority was in public schools. The higher the percentage of whites in public schools, the lower their percentage in private schools. In other words, where whites were a stronger majority in public schools, there seemed to be less incentive to enroll in private school. Similar trends existed in 2012, although not as obvious. The report also includes similar data analysis for Hispanic and Asian students.
The report also focused on individual schools and what it calls virtual segregation:
The third measurement of this study examines more deeply patterns of over- and under-representation of students by race and ethnicity within each school in 2012 by identifying the private schools in the 50 states where white students comprise 90 to 100 percent of total enrollment. These rates and patterns are compared with the numbers for virtual segregated public schools in the states and regions.
In 2012, white students were far more likely to be educated in virtual segregation in private schools than in public schools. Forty-three percent of the nation’s private school students attended virtually all-white schools in contrast to 26.9 percent of public school students. Among the 50 states, South Carolina’s private schools had the largest disparity in segregated education between private and public schools: 63 percent of white students in private schools in South Carolina in 2012 were taught in segregated schools in comparison with only five percent of the state’s public school students. Mississippi had almost as large a gap – a difference of 56 percentage points. Seventy-one percent of white students in Mississippi private schools attended segregated schools, while 15 percent of the public schools’ white students were attending segregated schools.
It also identified virtual exclusion:
The final measurement quantifying and comparing racial and ethnic patterns in private schools identifies the numbers of white students attending schools with only 10 percent or less of under-represented students of color – African American, Hispanic, and Native American students combined. In one sense, virtual segregation can be understood as a measure of the extent white students are extremely “packed” into schools, and virtual exclusion as a measure of the extent under-represented students of color are extremely absent or excluded from school enrollment. The analysis also compares rates of virtual exclusion between private and public schools by state and region.
Nearly two-thirds of white students attending private schools across the 50 states were in schools that virtually excluded African American, Hispanic, and Native American students. The rate was 41 percent in public schools. Racial exclusion in South Carolina’s private schools exceeded the rate among its public schools by the largest margin among the 50 states. Eighty-four percent of the white students in South Carolina’s private schools were in racially exclusionary schools in 2012. This rate compared to 11 percent in the state’s public schools – creating a private school disparity of 73 percentage points. Private schools in Delaware had the nation’s second largest disparity in exclusionary schooling: 72 percent of all white students in Delaware’s private schools were in virtually exclusionary schoolhouses, but only four percent of the state’s public schools’ white students were in such schools.
Seven of the ten states with the largest measures of racial exclusion in private schools were in the South. Six of those seven states were the Deep South’s “freedom of choice” states. The percentage of white students in private schools in the 15-state South exceeded the percentage in the public schools by 37 percentage points – close to twice the disparity in racially exclusionary schools for white students elsewhere in the nation in 2012.
Get the full report here.
Thursday, March 17, 2016
UCLA Civil Rights Project: Charter Schools, Civil Rights and School Discipline: A Comprehensive Review
Amid suspicions that some charter schools' policies serve to cull students for minor discipline problems comes a report this week that charter schools still are suspending black students at significantly higher rates than white students and suspending students with disabilities at two to three times the rate of nondisabled students. The study, Charter Schools, Civil Rights and School Discipline: A Comprehensive Review, was released by UCLA's Civil Rights Project and interprets federal data from 5,250 charter schools on out-of-school suspension rates. Among the findings:
- In the 2011-12 school year, 374 charter schools suspended 25% of their enrolled student body at least once.
- Nearly half of all Black secondary charter school students attended one of the 270 charter schools that was hyper-segregated (80% Black) and where the aggregate Black suspension rate was 25%.
- More than 500 charter schools suspended Black charter students at a rate that was at least 10 percentage points higher than the rate for White charter students.
- 1,093 charter schools suspended students with disabilities at a rate that was 10 or more percentage points higher than for students without disabilities.
- 235 charter schools suspended more than 50% of their enrolled students with disabilities.
The report also notes that "lower-suspending charter schools are more numerous than high-suspending charters," suggesting that those school may be using "effective non-punitive approaches to school discipline [that] could help close the pipeline." Daniel J. Losen, the director of the Center for Civil Rights Remedies, told the New York Times that "the report should not be used to generalize about all charter school discipline, because there were also schools that did not suspend students at high rates." The full report, written by Daniel J. Losen, Michael A. Keith II, Cheri L. Hodson, and Tia E. Martinez, is accessible here.
Monday, March 14, 2016
Washington Hasn't Implemented the Constitutional Mandate for Educational Adequacy, But Has No Problem Finding a Charter School Fix
In 2012, the Washington Supreme Court declared the state's school funding system constitutionally inadequate. Since then, the state has be slow to act--slow enough that the Court imposed heft daily fines this summers until the state implements a plan. A week and a half ago, the state finally passed legislation, although some point out that it is no more than a promise to come up with a solution in the next legislation session. The real irony, however, came late last week when the state passed a new charter school bill.
The past September, the Washington Supreme Court struck down the state charter law, reasoning that the statute violated the constitutional mandate for a “a general and uniform system of public schools” and that it diverted funds that the constitution reserves for common schools to other schools. In other words, the state was directing common school funds to schools that are not common. While the state has drug its feet for four years on a fix for traditional public schools, it only took six months to pass a fix for charter schools--a fix that had already failed once. Daarel Burnette at Edweek reports,
A bill championed by advocates to revive the [charter school] law was passed by the Republican-controlled Senate in January, but had stalled in the House education committee before Rep. Larry Springer, a Democrat, used a procedural maneuver to resuscitate the bill and bring it to the House floor for a vote on Wednesday.
Democrats control the House, but barely. And the effort to restore the law has met resistance from several groups, including the state's teachers' unions.
On Tuesday, April 5, 2016, New York University School of Law is hosting the conference "Can Markets Save Public Education?"
The organizers offer this description and schedule.
Join us for a conversation on charter schools, vouchers, tax credits, and other proposed market based reforms for public education. Experts in education policy, educational leadership, law, and economics will discuss potential impacts of charter schools on the community and area public schools, debate the merits of school choice programs, and explore the political and financial obstacles to implementing such reforms.
The keynote address will be delivered by Ms. Emily Kim of Success Academy, New York City’s largest network of charter schools. Ms. Kim is the Executive Vice President of Legal Affairs and Policy.
This event is free to attend, and lunch will be provided.
To RSVP, click here or copy and paste the link below into your browser:
We have applied for CLE for this event. If approved, CLE credits will be awarded per panel.