Monday, December 9, 2013
The Pennsylvania legislature is expected to act this month on a hotly contested bill to reduce funding to the state’s 15 cyber charter schools but release all charters from local school district control. For example, under the proposed law, the Philadelphia school district would have no authority over charter schools in its area, but would still be obligated to pay $708 million of its funding to them. Education advocates are concerned that removing local control of charter schools will place an unbearable financial burden on already-troubled school districts like Philadelphia. The Education Law Center of Philadelphia (ELC) is even more concerned about a provision that allows any Pennsylvania higher education institution with 2,000 students the power to authorize new charter schools. About 100 higher education institutions have 2,000 students, so the provision could lead to an exponential growth in public charter schools with no input from local school districts. Given that every higher ed institution is looking for new income streams, the ELC’s prediction is likely correct that colleges and universities will enthusiastically take on the challenge of charter schools if the provision passes. Derek’s recent post on Pennsylvania Staying on the Bandwagon to Halt Cyber Charters questioned poorly-conceived start-stop education policies. States like Pennsylvania throw their doors open for cyber-charters and then put moratoriums on them when something goes wrong--in Pennsylvania’s case widespread fraud. To be fair, the back-and-forth on charter schools generally (and cybers particularly) is tied to who has the power at any given time. Read more here.
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.
Wednesday, November 27, 2013
In July, a group filed a lawsuit challenging the constitutionality of Washington's charter law. The complaint included the standard arguments about funding and uniformity, but also included the relatively unique claim that the charter school structure moved the control of those schools outside of the authority of the state superintendent, violating the constitutional provision that provides:
The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.
Wash. Const. Art. 3, § 22.
Late last week, the trial court heard oral arguments in the case. A local media outlet, Kumo News, summarized the proceeding:
The state attorney general's office, representing the people of Washington, argued the charter law enhances education in Washington and does not circumvent anything in the state Constitution or the court decisions that have clarified sections on education.
. . .
Charter school opponents, represented by Attorney Paul Lawrence, say the law passed by voters last year is unconstitutional because it interferes with the state's obligation to pay for public schools, set a uniform curriculum and establish other rules. Lawrence also argued the law takes authority granted by the Constitution away from the superintendent of public instruction and from the Legislature.
However Assistant Attorney General Dave Stolier said the charter does exactly what the Supreme Court has ordered the Legislature to do: continue to innovate and change to meet the needs of Washington children.
"There's just not enough here to overturn the voters' will in this case," Stolier said. The state is asking the court to grant a motion for summary judgment and stop the lawsuit from going forward.
Both attorneys - and a third lawyer representing the sponsors of the charter school initiative - quoted extensively from recent Supreme Court decisions on education, with a major focus on what's known as the McCleary decision, in which the court ruled that the way the state pays for education is unconstitutional.
One would assume that plaintiffs' primary concerns are the funding shifts and lack of uniformity, but as noted in my earlier posts their strongest claim may be the one in regard to the superintendent. Unlike other school financing claims, there is a technical hook here and the charter school statute seems to explicitly violate it.
Tuesday, November 26, 2013
Over the past six months, a growing number of states have either ended their virtual charter school or placed a temporary moratorium on them. Late in the summer, I posted on Chicago, Maine, and North Carolina. Shortly thereafter, Florida followed. In some instances, the impetus was low quality and negative study findings. In other instances, the impetus was outright scandal, the largest of which was in Pennsylvania and led to a federal indictment. Now, the Education Law Center is asking Pennsylvania to join the list of moratorium states. At the very least, the Center asks the state to refrain from granting new charters, citing poor performance, high student turnover, fraud, and a huge price tag. But according the the Pennsylvania Department of Education, it lacks the statutory authority to impose a moratorium. In the meantime, the Department has been denying cyber applications on a case by case basis. Last year, it denied all eight cyber charter applications. This year it has six new applications. My guess is that it will deny them as well. If it does, the moratorium would be de facto if not explicit.
Stepping back from the particular merits of cyber charters, education policy in this area unprincipled. On the one hand, cyber charters, like other charters, were ushered into these states with almost no strings attached. Now that those "chickens have come home to roost," states are taking the opposite approach and banning them altogether. Whether you are a friend or foe of cyber charters, this makes little sense. A category of schools does not go from inherently good and trustworthy to inherently bad in a matter of a few short years. The closer truth is that they are probably neither, but simply the product of poor conceived legislation. A little more thoughtfulness on the front end about how to fund them could have avoided many of these problems. Bruce Baker and Justin Bathon's recent guide is an excellent example of this thoughtfulness.
Monday, November 25, 2013
Friday,U.S. District Court Judge Ivan Lemelle ruled that the Department of Justice is entitled to monitor Louisiana's voucher program, although the details of that monitoring are yet to be determined. The judge gave the state and DOJ 60 days to agree on a process. Both sides are claiming victory in a resolution limited to monitoring.
Bobby Jindal took victory in the fact that "the judge acknowledged that data provided by the state show the program does not have a negative impact on desegregation. We are also glad the judge made clear he does not want to disrupt the scholarship program." But consistent with my most recent post on the case that this is a controversy Jindal hates to see go away, he suggested that there is an ongoing battle that he will fight, remarking ,"We will draw a hard line against allowing the federal government to control the scholarship program and handpick schools for Louisiana's children." Unfortunately for Jindal, DOJ is not suggesting anything of the sort.
DOJ, instead, is claiming victory, as minor as it may be, in the ability to monitor the program. Jocelyn Samuels, DOJ acting assistant attorney general for the civil rights division, remarked, "We are pleased that the court has supported the department's position in this matter," and added, "This should not have been controversial in the first place." Samuels last point was mine since this dispute began. Yet, given the low stakes involved in a monitoring battle, one wonders how this case made it this far.
Friday, November 22, 2013
Delineating state based education litigation into waves is inherently problematic. In school finance litigation, scholars, including myself, have sought to divide it into three, if not four, different waves. Yet all understand that the lines between the waves are fluid and, thus, we speak in waves mostly for convenience. With that caveat, charter school litigation may be entering a new wave. In the past, the most prominent and prevalent charter school litigation has been by those opposing charters and who argue that they violate state constitutional provisions. I would call that the first wave. The potential second wave--albiet a loosely connected waive--involves cases coming from an entirely different set of plaintiffs: those supporting charters and claiming that the state is inappropriately tampering with or restraining them. These cases are not entirely new, but based on this past week, they seem to be growing more prevalent and gaining more traction in the court. The growing prevalence is likely a result of the fact that charters have reached the point where they are normative rather than aberrational and individuals have, at least, a subjective settled expectation in regard to them. In support of this potential waive, I offer three cases coming decided or filed in just this past week.
Wednesday, November 20, 2013
Yesterday, DOJ withdrew its requests for an injunction of Louisiana's voucher program. Most conservatives and choice proponents immediately rejoiced and appeared ready to move on. Bobby Jindal, however, displayed either minor disappointment or an inability to accept victory graciously. My read is that he is disappointed this issue is going away and is going to try to keep it alive as best he can. The problem is that he only remaining objection is paperwork.
While DOJ is no longer seeking an injunction, it does want to continue to monitor the program to ensure it does not have segregative effects. To do so, it wants to receive data each year on the program. Data tracking, demographic shifts, and regular status conferences to review them are standard fare in desegregating districts and there really is no basis to object. One never knows to which side's advantage the facts will play, but monitoring progress and regression is absolutely necessary for courts to carry out their responsibility.
Jindal's response: "This is a typical Washington move. The updated Department of Justice request reeks of federal government intrusion that would put a tremendous burden on the state, along with parents and teachers who want to participate in school choice.” Louisiana's state superintendent also fell in line behind his governor, calling the request for data a “power grab. . . .They want to retain control over something that we believe should be in the hands of parents. . . .It is clear that they want that power.”
Given our data driven and reporting world, turning of this small data set over is unlikely to pose much, if any, additional burden on Louisiana. This sounds more like an attempt to continue the political rhetoric and disregard basic desegregation law. The troubling aspect of this case is why DOJ is taking this position now. My perspective throughout was that we had to respect the legal process in a case where existing desegregation orders were already in place and that we could not presuppose the facts. What is unclear is whether DOJ had been blocked from getting the facts initially and, thus, filed suit (but now that it has the facts believes there is no problem) or DOJ folded under political pressure. DOJ is not one to fold and mid-way into this battle had indicated that all it wanted was data. In that respect, its actions have been consistent. But if it only wanted data, why did ask for the program to be enjoined? One explanation would be litigation strategy. If in fact Louisiana was being obstinate in regard to the minor request for data, the request for injunction upped the ante and protected against the possibility that Louisiana was hiding something. Regardless, to Jindal's likely disappointment, this case is finally poised to fade away into the normal litigation progress, which only a select few will follow.
Thursday, November 14, 2013
In the past few months, we have posted on a series of funding scandals involving virtual charter schools. A new policy and research guide by Bruce Baker and Justin Bathon digs far deeper than my posts and the legislative responses-which have been to simply pull the plug in some instances. The guide starts with the question of: based on actual costs, what is the appropriate level of funding for virtual schools? It then offers recommendations, such as paying virtual schools after students complete courses rather than based on basic enrollment. This creative solution might go a long way to stemming corruption and perverse incentives. Those intent on cheating the system can surely find ways to falsify data regarding course completion, but for the vast majority, anchoring funding to course completion does away with the incentive of enrolling students for the sake of enrolling them and then paying little attention to how their education progresses.
Baker and Bathon's full recommendations follow the jump.
Wednesday, November 13, 2013
Education Next ran a long story on diverse charter schools this past winter. Last week ,the New Orlean's Advocate ran its own story about a new diverse school in its own backyard. These schools are remarkable because they have tended to sprout up in districts that are otherwise racially and socio-economically diverse, like as New York City and Washington, D.C. They show that charter schools are capable of achieving ends that otherwise allude regular public schools. Some of them also show the capacity to draw students from across district lines, thus evading the primary driver of segregation, which Milliken v. Bradley indicated was beyond the power of courts. For these reasons, Jim Ryan touted the possibility of charter schools in his book, Five Miles Away, A World Apart.
While these schools show promise, they remain tiny drops in a huge bucket of segregation. The Century Foundation has identified 24 diverse charters that have sprung up in recent years. As of 2010, there were over 5,300 charters and their numbers have increased since then. In addition, some local communities charge that this diversity has come with a price. Some claim the schools have exclusively catered to and recruited middle income families, fostering the perception that they are schools of exclusion rather than inclusion. Likewise, advocates in NYC have emphasized that their diverse charter schools are not diverse in all respects, but rather enroll far fewer special education students than other schools. The bottom line seems to be we must push far much harder for diverse schools and not lose site of the fact that it matters how we achieve diversity. We must be equally mindful that they are open and diverse in all respects.
Friday, November 1, 2013
Finally, school voucher news that is not about Louisiana's fight with DOJ surfaces. This time it is a new development in the Southern Poverty Law Center's suit against Alabama. Late this summer, SPLC alleged that the Alabama Accountability Act, which allowed students to transfer out of failing districts and enroll in private schools and receive tax credits, created two classes of students: "those who can escape [failing schools] because of their parents’ income or where they live and those who cannot." According to SPLC, the Act violated equal protection.
Since then, in a move parallel to a parent group in Louisiana, three parents sought to intervene in the lawsuit against Alabama. The state trial court has now granted their intervention. Their primary role seems to be to emphasize the benefits of the program, notwithstanding SPLC's charges of discrimination. It seems to me that this intervention is distinct from that in Louisiana, which I argued earlier this week was probably inappropriate. The Alabama intervention makes more sense because it is not the adjudication of a violation of prior desegregation order but a challenge to the constitutionality of Alabama's current law as it stands. Regardless, this case remains one to watch. Although not as politically hot, this Alabama case may prove more doctrinally important, as SPLC raises novel claims that, if sustained, may have ripple effects elsewhere.
Tuesday, October 29, 2013
Just when you thought the battle over Lousiana's voucher program was fading into the background, Governor Jindal has something new to lash out about. A group of parents, or rather the Conservative Goldwater Institute on behalf of parents, sought to intervene in the desegregation case. DOJ opposes their motion to intervene, primarily arguing that they have no interest at stake in the case because DOJ is not seeking to take their vouchers away but to monitor the program as it moves forward. DOJ also notes that it represents the public at large and, thus, it can adequately represent the interests of these parents. Govenor Jindal reacted vehemently to the motion, saying “The Obama Administration is attempting to tell parents to sit down and shut up. It’s never going to happen. Despite whatever evolving legal argument the Obama Administration comes up with, the voices of thousands of parents will not be silenced.”
My suspicion is that Jindal helped orchestrate this intervention in the first instance because it would give him another wedge to drive in this case. To his defense, orchestrated interventions by the underdog are not that uncommon (query whether governors fit the role of underdog). But the obvious danger with interventions in this type of case is their likelihood of muddying the water. The legal issues in this case do not turn on what voucher families want or need, nor do they have legally vested rights in the vouchers. Rather, the issues in this case turn solely on desegregation law. Thus, whether Jindal likes it or not, these families do not have a clear role in this case; they simply care about its outcome more than most. But, of course, that is par for the course in desegregation cases, as they directly and indirectly affect so many students. In fact, scholars have analyzed the likely role that third parties' interests have played in shaping major desegregation cases like Milliken v. Bradley. Per this reasoning, even if these intervenors do not make it into the case, their interest will likely weigh heavily on its outcome, which is why I noted in my first post weeks ago that the longer Jindal could delay this case the better for him. More parents would have applied for vouchers and the pressure to not impede their expectations would mount.
Friday, October 25, 2013
• Encouraging innovation, such as giving priority to multi-district charters that seek to serve a socio-economically and racially diverse student body, or that address the needs English language learners or students at-risk of dropping out
• Ensuring that charter schools are not impeding access, through means explicit or subtle, to any and all students who are eligible to enroll, including very low income students, English language learners, and students with disabilities.
• Requiring public transparency in the lottery process; in maintaining waiting lists and documenting transfers and attrition; in adhering to state and federal due process in student discipline matters; and by disclosure of annual budgets, including funds and other support received from private sources.
Their full statement is available after the jump.
Thursday, October 24, 2013
Below is a picture taken of a Standord CREDO presentation. I have tried to find the underlying report on CREDO's website, but maybe it is still in the works. (If anyone knows better, please contact me). My interpretation of the slide is that, contrary to common beliefs, legal restrictions on charter schools are not necessarily a cause of slowed growth. For instance, the first row indicates that charter school growth is the slowest in states that never had a cap on them to begin with. And the greatest growth is in places where there has always been a cap. Similar patterns pop up in the other rows. One might surmise then that restrictions on charter schools serve as political lightening rods, against which charter advocates react and which potentially causes greater growth. Let's hope a report is forthcoming that provides more clarity.
Tuesday, October 22, 2013
Christopher and Sarah Lubienski's newest book, The Public School Advantage: Why Public Schools Outperform Private School, reaches some counter-intuitive and significant conclusions. First, contrary to the assumptions of many and some older research, private schools are not outperforming public schools. To the contrary, public schools are outperforming. There seems to be some nuance not fully explored in this global finding, such as whether some subsets like secular academic private schools are outperforming public schools. Those questions were not answered because the data insufficient to draw firm conclusions comparing private schools amongst themselves. But the overall finding regarding private versus public public schools is clear: while the raw achievement scores in some private schools may be higher than those in public schools, it is only because they disproportionately enroll wealthier and other demographically privileged groups of students. When those demographic factors are controlled, there is no "value-added" benefit of private school. In fact, there is value lost.
This leads to the second question: why are private schools underperforming? The Lubienski's conclusion is that:
It appears that there is a danger in the autonomy that private schools have. The teachers aren’t required to be certified, there is less professional development happening, they’re not held accountable to the same kinds of state curriculum standards and tests. And so when we look at scores on those things it just makes sense that the schools who are hiring teachers who are certified and have been educated in a way that helps them understand all the current educational reforms and the research on learning—that those teachers would be more effective. Particularly more effective at educating students on the state standards...So, yeah, the autonomy of private schools may not be all it’s cracked up to be.
These findings are obviously of crucial importance in the debate over vouchers, as the premises behind vouchers are at odds with these new findings. Moreover, if one drops the assumed academic advantage of going to private school through vouchers, the remaining basis/justification seems more aligned with supporting parents religious motivations. The Court was able to dodge this problem in Zelman v. Simmons-Harris, but studies like this would suggest we revisit that question.
Friday, October 18, 2013
Two weeks after revelations that operators at Options Charter School were misappropriating funds for themselves, the D.C. Public Charter School Board is considering instituting more oversight of the city's charters. The new oversight would center around accurate and timely disclosure of charter school contracts, conflicts of interest and salaries of top-paid officials. Apparently, charters are already required to submit contracts worth more than $25,000 to the board, as well as disclose any conflicts. The board says, however, that those submissions have not been timely in the past.
While I credit the board for trying to do something, timeliness does not seem to be the problem here. Rather, the perverse incentives that come with handing public money over to private operators with little or no strings attached seem to be the problem. It is not clear how timeliness will change that. I would also note that these perverse incentives reach well beyond just money, but, of course, we rarely talk about that.
Wednesday, October 16, 2013
The article, “Public School Money Should Only Go to Public Schools,” raises policy concerns regarding the use of school vouchers to supplement tuition for private schools that the authors suggest may lead to a challenge under the Oklahoma state constitution that are relevant. This article describes the differences in accountability that private schools in Oklahoma enjoy (not having to be graded A-F as public schools) as well as concerns regarding access to private school for students who cannot afford to go there.
In Charter Schools, Vouchers, and the Public Good, I raised the problem of some districts' continuing financial viability with the growth of charter schools (along with several other issues). I don't suggest that charters are a per se threat to public schools, but focus on the paradigm cases of a small rural district that operates one middle school and one high school. Opening one charter school can jeopardize the fiscal stability of the district and create dilemmas of conscious for families. The same type of problem can occur in large school districts, but the growth of charters has to been rather significant.
A new report by Moody's indicates that some districts have already reached this point and others may do so in the future:
The dramatic rise in charter school enrollments over the past decade is likely to create negative credit pressure on school districts in economically weak urban areas. . . . Charter schools tend to proliferate in areas where school districts already show a degree of underlying economic and demographic stress. . . .
"While the vast majority of traditional public districts are managing through the rise of charter schools without a negative credit impact, a small but growing number face financial stress due to the movement of students to charters.". . .
Charter schools can pull students and revenues away from districts faster than the districts can reduce their costs, says Moody's. As some of these districts trim costs to balance out declining revenues, cuts in programs and services will further drive students to seek alternative institutions including charter schools.
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.
Friday, October 11, 2013
The District of Columbia's charter schools will soon be added to the list of serious personal interest stories that demand that the federal government pass a continuing resolution to fund the government. The charters are expecting a quarterly payment on October 15th, which will not come if the federal government is still shut down. DC's mayor indicates that the schools can run on contingency funds, but those will run out in about two weeks, at best. Some charter schools have no reserves and will be forced to shut down even sooner. That means that the 35,000 students in the city that attend charters will have no school to go to. It also means that low-income students will miss free lunch, which is the only meal some eat all day. More here.
Wednesday, October 9, 2013
As a matter of procedure, the data in Louisiana does not matter. Districts that have maintained de jure segregated schools and are still under court order to remedy the effects forfeit the right to assign students any way they want, even if their means are race nuetral. This has been the law for forty years. This legal principle is irrelevant in most post places because the vast majority of districts have been released from court order. But in other districts, courts are still there to look over their shoulders because these districts have not fixed the problem, nor proved that they can be trusted. Thus, as a matter of procedure, I still maintain no sympathy for Louisiana and its claims that it ought be free of second guessing.
Beyond the procedure, however, the facts are the facts, and new ones are coming out. When complying with court oversight, these desegregating districts should be free to move forward with any legitimate plans that do not negatively effect desegregation. According to DOJ, Louisiana had previously been less than forthcoming with the data necessary to make this determination. Now that the data is becoming available, it looks like some of the facts are favorable to Louisiana. According to a study published by Education Next, the voucher program improves racial balance in the vast majority of schools that students are leaving. (See their data to the left). Rick Hess, a national education commentator, uses these facts to say, in effect, I told you so, and jump on the bandwagon in criticizing and questioning DOJ's motions in this case.
But not so fast. Taking Ed Next and Hess's facts as true, it does not mean that the program is constitutional in its entirety. Desegregation orders are against individual school districts, so in those districts where vouchers increase segregation, they would be presumptively unconstitutional if the effect is more than minimal. In the other districts where racial balance improves racial balance, which is the vast majority, there is no problem and the programs can remain in place. In other words, how the program performs on the state level is largely irrelevant in terms of individual districts. Thus, the fallacy of Hess and others' reasoning is to only look at this program, on the averages, at the state level, instead of at the school and district level which is where segregation actually occurs. But to be clear, I do not have all the facts. The negative effects could be minimal in all of the school districts or overshadowed by other good things the state and district might be doing in within districts. Yet we do not know the answers to these things, hence my contention from the start that we should honor the judicial process and keep national politics over vouchers out of it.