Thursday, October 2, 2014
Marianna Bettman shared this post from her blog:
“This case is bigger than just your client’s dispute with White Hat,” Chief Justice Maureen O’Connor said to counsel for the Schools, later commenting it was all about following the money.
On September 23, 2014, the Supreme Court of Ohio heard oral argument in the case of Hope Academy Broadway Campus, et. al. v. White Hat Management, LLC, et. al., 2013-2050. The literal issue in the case is who owns certain personal property bought with public funds for charter schools by its private management company, but the broader issue involves the accountability of a private management company for those public dollars. Judge John Wise of the Fifth District Court of Appeals sat for Justice O’Donnell, who recused himself from the case. Justices are not required to give any public reason for a recusal.
The plaintiffs in this case are the governing boards of ten charter schools (“The Schools”). Charter schools (technically, community schools, but the blog will use their more familiar name), which are public schools by definition, but exempt from many of the requirements of traditional public schools, are governed by a board, and operate pursuant to a Community School Agreement between the schools and a sponsor approved by the Ohio Superintendent of Public Education. Charter schools are allowed to contract with private educational management organizations to administer the schools’ daily functions. Defendant White Hat is such a management company.
Tuesday, September 23, 2014
Similar Lawsuits Expected in Other States
On September 15, 2014, the Northeast Charter Schools Network (NECSN) and charter parents filed a lawsuit against the State of New York, seeking more taxpayer support for charter schools, specifically for facilities.
The lawsuit, Brown v. New York, which was filed in Buffalo, claims the funding system used by the State to allocate money to charter schools violates the state constitution. The plaintiffs argue that the state funding formula denies children enrolled in charter schools access to a "sound basic education," as required by the New York State Constitution. Additionally, they allege that the funding scheme has a disproportionate and discriminatory impact on minority students.
The parent plaintiffs are from Buffalo and Rochester and are represented by Herrick, Feinstein LLP, Park Avenue, New York, NY.
As reported in the Rochester City Newspaper, the Alliance for Quality Education, a statewide group that advocates for high quality public education for all New York students, issued a statement calling the suit a "deceptive PR stunt." "Despite the fact that public schools are severely underfunded, Wall Street-backed charter school groups continue to use aggressive propaganda to win more public school dollars," the statement asserts.
Monday, September 15, 2014
Yesterday, the Washington Post ran a story on the filth in Chicago's public schools. One principal charges that ever since the school system turned over its janitorial services to private contractors (a $340 million contract), his school has been inundated with roaches, rats, and garbage. Nearly half of the district's principals reported the same in a recent survey. Things may very well get worse. One of the contractors is set to lay off approximately 20% of the custodians currently on the project.
The story closely intersects with a point I made in a recent paper on what makes education public and how private markets fit into education. I distinguished between publicly funded education and public education. I also distinguished the various services that the government delivers, positing that some services entailed public missions and value judgments, and others did not. I noted, for instance, that garbage pickup involves relatively little value judgment and mission development, whereas education does. Thus, one might be less concerned about the outsourcing of the former, and more concerned about the latter.
Monday, September 8, 2014
Last year brought a spate of North Carolina cases involving charter schools claiming that local districts were denying them appropriate access to the districts' rainy day funds. The charters won and were able to immediately tap into funds that the districts had set aside for long term emergency. Apparently, the response of some districts was to reclassify funds to exempt them from the fund sharing statute implicated in prior cases. That reclassification of funds lead to another new case, Thomas Jefferson Classical Academy Charter School v. Cleveland County Board of Education, 2014 WL 4290557 (N.C. Ct. App. Sept. 2, 2014), in which the Thomas Jefferson charter school alleged that the school board "wrongfully moved approximately $4.9 million from the local current expense fund, which must be shared with the charter schools, to a 'special revenue fund,' which is not shared."
Thursday, September 4, 2014
Richard D. Kahlenberg and Halley Potter's new book, A Smarter Charter: Finding What Works for Charter Schools and Public Education, will release on September 12. The promotional materials offer this description:
Moving beyond the debate over whether or not charter schools should exist, A Smarter Charter wrestles with the question of what kind of charter schools we should encourage. The authors begin by tracing the evolution of charter schools from teacher union leader Albert Shanker’s original vision of giving teachers room to innovate while educating a diverse population of students, to today’s charter schools where the majority of teachers are not unionized and student segregation levels are even higher than in traditional public schools. In the second half of the book, the authors examine two key reforms currently seen in a small but growing number of charter schools—teacher voice and socioeconomic integration—that have the potential to improve performance and reshape the stereotypical image of what it means to be a charter school.
Wednesday, August 20, 2014
Education Law Center Calls on New Jersey to Assess Effect of Charters on Segregation and School Funding
The following is a repost of an Eduction Law Center press release:
In comments filed today, Education Law Center is calling on the NJ Department of Education (DOE) to issue rules requiring the State Education Commissioner to assess the impact of NJ charter schools on both student segregation and local school district budgets.
"The New Jersey Supreme Court has made clear the Commissioner's obligation to assess whether a proposed or operating charter school is causing student segregation or depriving district schools of necessary funding, both of which would violate the right of district students to a thorough and efficient education under our State Constitution, " said David Sciarra, ELC Executive Director.
"The State's failure to properly codify this obligation in the rules governing New Jersey's charter school program is a violation of constitutional law," Mr. Sciarra added.
In several rulings, most recently in December 2013, the NJ Supreme Court firmly established the responsibility of the State Commissioner to determine whether a proposed charter school would exacerbate racial segregation and/or deprive students in district-run schools of essential funding.
Monday, August 18, 2014
Four states--Michigan, Missouri, Ohio and Florida--have been particularly receptive to for-profit management companies running charter schools. In Michigan, nearly 80 percent of charters are run by for-profits. Many states prohibit for-profit companies from running charters. Many others fall in-between, neither encouraging nor discouraging for-profit management. This grey area comes from the fact that for-profit companies are generally ineligible to receive charters from states. A federal statute, for instance, heavily incentivizes states to adopt this approach, prohibiting charters owned by for-profits from receiving federal fund grants. But the non-profit charter in "grey-area" states is free to contract out services. Thus, while the non-profit receives the charter, it can pay a for-profit entity to run the school. I imagine, although I have not investigated, for-profit companies might directly set up non-profits, which can then receive the charter and pass on the work and money to the for-profit.
Thursday, August 7, 2014
The Journal of Law and Education's upcoming Fall issue includes a particularly timely set of articles dealing with the new era of teacher evaluation and the ethics of education leadership. The abstract for each is below. I cannot help but mention that this is the third article by Preston Green that I have posted in the last few weeks. Kudos to Professor Green
An Analysis of the Policy, Research, and Legal Issues Surrounding the Exclusion of Charter Schools from the Teacher Evaluation Revolution by Preston Green, John and Carla Klein Professor of Urban Education, University of Connecticut
Abstract: Analysts such as Diane Ravitch have pointed out that charter schools try “to have it both ways” by obtaining public funding under state constitutional law while having private school autonomy with respect to student and teacher rights. This article contributes to the national discussion by analyzing the legal and policy implications of exempting charter schools from the teacher evaluation policies that apply to traditional public schools.
Evaluating Evaluation: Assessing Massachusetts School Districts' Implementation of Educator Evaluation Requirements by Ranjini Govender Dowley, Policy and Government Affairs Director, Stand for Children Massachusetts
Tuesday, August 5, 2014
Preston Green, Bruce Baker and Joseph Oluwule have been very productive over the past year. They have another forthcoming article in Emory Law Journal titled Having it Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools. For those following Bruce Baker or me on twitter, this new article provides depth to the discussion Bruce Baker and I had via twitter two weeks ago regarding an Arizona charter school that is purportedly promoting a mix of racism and religion through its history readings. Bruce had asked whether the First Amendment applied to them. I was quite certain it did, but per many of the issues raised in this new article, charters will make various arguments that it does not. The article abstract summarizes it as follows:
Monday, August 4, 2014
New York City's mayor has backed off of his attack on charter schools, but the city council is stepping up. Daniel Dromm, a member of the city council and its education committee, sent a let to the state's charter authorizer, asking that it not charter any more schools in the city “until you address the lack of oversight and accountability in this rapidly growing sector.” Charter advocates respond that the letter is just political posturing to deflect attention from the traditional public schools poor practices and defend the status quo bureaucracy.
Even if charter advocates are correct about Dromm's motivations, their claim is unresponsive. A certain amount of oversight and accountability is necessary in every public program--school's in
Thursday, July 24, 2014
Chile has one of the most robust school voucher programs in the world. A new peer reviewed study, Understanding How Universal Vouchers Have Impacted Urban School Districts’ Enrollment in Chile, looks to the effects of Chile's massive voucher program on public education to draw lessons for the United States. In short, Chile provides a test case for the claims that vouchers will spur competition and improve public schools, while also providing choice. Julian Vasquez Heilig summarizes the 39 page study:
in a market where the voucher is distributed equally and to everyone, the final result is a complex scenario of education stratification where differences and segregation primarily functions as an advantage for high-SES students. Prior peer-reviewed research on vouchers in Chile, and the current study, demonstrate that specific family and student characteristics, as well as, the family/student´s area of residence jointly determine the spectrum of educational choices available in a universal voucher system.
The study found, however, that even with a robust voucher program opportunities were not spread equally. Rather, there was significant variation across localities.
Monday, July 21, 2014
An Arizona charter school, Heritage Academy, is purportedly using two of Cleon Skousen’s books, “The 5,000 Year Leap” and “The Making of America,” in its high school history class. The books depict American slavery in a racist and sympathetic light. Skousen, for instance, includes an essay arguing that “if [African-American children] ran naked it was generally from choice, and when the white boys had to put on shoes and go away to school they were likely to envy the freedom of their colored playmates.” Professor Garret Epps, University of Baltimore School of Law, explains that “parts of [Skousen's] major textbook … present a systematically racist view of the Civil War” with a “long description of slavery in the book” arguing that slavery was “beneficial to African-Americans and that Southern racism was caused by the ‘intrusion’ of Northern abolitionists and advocates of equality for the freed slaves.” The school's founder and principal defends the use of the books, stating that "Our purpose is not to convert students to different religious views. It is to show them that religion influenced what the Founders did.”
Rushing to judgment in book cases is all too easy, and that is how school boards and state departments of education find themselves in lawsuits. All books can have value in the classroom. What matters is not the views the books espouse, but how those views are presented to students. As a litany of establishment clause cases has shown us, the Ten Commandments and the Bible can be used in school, if used in the proper context. The problem is that the proper context is most often lacking.
Thursday, June 19, 2014
In Larue v. Douglas County School District, plaintiffs charge that a locally designed voucher program violates the Colorado Constitution. The program would funnel public funds to private, mostly religious, schools on behalf of some Douglas County families.
The Larue trial court issued an injunction that prevented the program from going into effect, but the appeals court overruled. Now the case is before the final decision-maker, the Colorado Supreme Court.
On May 29, 2014, several amici, or "friends of the court," filed briefs in support of plaintiffs. The parties and some amici addressed the state constitution's prohibition against spending public funds on religious education and plaintiffs' standing to bring the lawsuit.
Education Law Center (ELC) and the American Federation of Teachers (AFT) filed a joint amicus brief that provides the Court with the national perspective on key issues relevant to the appeal. This brief explains that:
- School voucher programs in other states have not improved student academic achievement.
- Due to the design of Colorado's formula for state funding of K-12 schools, this voucher plan would reduce resources available to the public school students in Douglas County and across the entire state.
- This voucher plan would send public taxpayer funds to private, religious schools on behalf of well-to-do families.
After the plaintiff parents and taxpayers in the Douglas County School District, a Denver suburb, filed their request for an injunction in 2011, the state district court held a three-day hearing. The court issued its injunction, preventing implementation, and held that the program violates various provisions of the Colorado Constitution and two Colorado statutes.
The Larue case is similar to "Blaine Amendment" cases in Arizona and Florida, where publicly funded vouchers for mostly religious schools were found to violate those states' constitutions.
Friday, June 13, 2014
Putting Louisiana's Education Pieces Together?: Discipline, Vouchers, Data, and the State Dept. of Ed.
In the wake of the recent filing of civil rights complaints in regard to discipline in New Orleans charter schools, there is now a call for the state superintendent of education to resign. A local blogger, whose veracity I neither doubt nor affirm, suggests that are other problems of disfunctionality at the Department itself. His story alleges that there is a data crisis at the Department. In particular, he asserts the data is neither secure, nor accurate, and the Department, thus far, has been unable to clean it up. If true, his story adds important context to the school voucher fight between the Department (and Jindal) and the US DOJ's equal educational opportunity section. As readers may recall, that fight ultimately came down to access to basic information and data, with the state requesting extensions of time to turn over the data on more than one occassion.
Tuesday, June 10, 2014
The Republican leadership in the Delaware House has introduced legislation that would allow state per pupil expenditures on education to follow the child, even if the student goes to private school. Every state has a funding formula that allots state funds to local school districts based on the number of children they serve. For each child, the state directs a set amount of funding to the district, typically $7,000 to more than $10,000 per pupil, depending on the state. The Delaware legislation would allow students to have those funds directed to a private school. This is distinct from a voucher program, which technically does not draw on the state public education funds and is not tied to per pupil formulas. Allowing private schools to tap into the state per pupil allotments would be a first.
From one perspective, the legislation would not entirely revamp the current philosophy of educational choice and funding. It would create a funding stream analogous to some charter school laws. Charter schools draw a per pupil allotment from the state and are not part of the traditional public school system. In addition to a charter, under this bill, students could also go to a private school.
From another perspective, this bill would fundamentally change education in Delaware. Charters have to be authorized and still operate under some level of state oversight. This legislation would remove all government oversight and decision making in regard to state per pupil funding outside of public schools. Decisionmaking would be entirely consumer based and, thus, the bill would completely privatize a portion of public education funding. I have previously warned of the dangers of unregulated public education policies and those that would place public schools in a competitive environment that is per se to their disadvantage, so I won't rehash them here. To the legislation's credit, it does offer one hedge against some of those dangers. It phases out the applicability of the law for higher income families.
Households with income low enough to qualify for free or reduced-price lunch would receive the same amount as a school district would get to educate their child. For last year, that means $43,568 for a family of four. Families that earn less than 1.5 times that amount would get 75 percent; families than earn between 1.5 times and twice the amount to qualify would get half, and families that earn between 2 and 2.5 times the amount to qualify would get a quarter.
The remainder of that student's allotment would go to their home district as normal.
For those taking the skeptical perspective, take a breath. The bill was introduced by the minority leadership, not the majority, in the Delaware House. Even they admit the passage of this bill is a long term project.
Thursday, June 5, 2014
Previously, Mississippi's charter law had several conditions and restrictions on the opening of charter schools. Most important were standards pertaining to local need for the school and its effect and interrelation with traditional public schools. As a result, no charter application had previously qualified for approval. Mississippi revised its charter law in 2013 and has now approved the first charter school in the state. A middle school is set to open in Jackson for the 2015-16 school year, with a capacity of 440 students. The charter law, however, remains strict, authorizing the opening of only 15 charters per year. For more, see here and here.
Thursday, May 15, 2014
OCR Reiterates That Charter Schools Are Subject to the Same Federal Laws As Traditional Public Schools
Yesterday, the Office for Civil Rights released guidance, stressing that charters are subject to the various statutes that OCR enforces. The fact that OCR needed to reiterate the status of charters vis-a-vis federal education statutea is troubling in itself. The question of whether federal statutes apply to charters was never in legitimate dispute. Most federal education statutes apply to schools not because they are public, but because they receive federal funds. Since charters receive federal funds, they must comply with various anti-discrimination statutes and affirmative education obligations like anyone else, private or public. Credit goes to OCR, nonetheless, for reiterating these points.
Constitutional analysis has proven slightly more tricky. As noted last summer, some courts have been willing to exempt charters from certain due process obligations, reasoning, for instance, that dismissal from a charter school does not deprive a student of the right to education because the student can return to his traditional public school. I argued that those courts' analysis is seriously flawed, but, of course, it is their opinion that counts.
OCR's dear colleague letter and a link to its new guidance follow below.
The U.S. Department of Education supports charter schools’ efforts to provide students, including those in some of the nation’s highest-need communities, with additional meaningful opportunities to receive a high-quality public education. Today, the Department’s Office for Civil Rights has released new guidance (versión en español) providing a reminder that our federal civil rights laws apply to charter schools just as they apply to other public schools.
The guidance explains that the federal civil rights laws that prohibit discrimination in education on the basis of race, color, and national origin; sex; and disability extend to all operations of a charter school, including recruiting, admissions, academics, educational services and testing, school climate (including prevention of harassment), disciplinary measures (including suspensions and expulsions), athletics and other nonacademic and extracurricular services and activities, and accessible buildings and technology.
We hope that the guidance issued today will help enhance the role charter schools can play in advancing equal opportunity for all students. Our office stands ready to provide technical assistance should you or your colleagues need it.
The Office for Civil Rights
Wednesday, May 14, 2014
A federal civil rights complaint has been filed against three New Orleans charter high schools, George Washington Carver Preparatory Academy, George Washington Carver Collegiate Academy and Sci Academy, run by charter management company Collegiate Academies. A parent-student group along with Loyola University New Orleans College of Law have filed the complaint alleging that students at the three schools are subjected to excessive discipline such as suspension for minor infractions. The plaintiffs say that Collegiate Academies' "no excuses" model pushes out students for non-violent behaviors and require "a culture of hyper-discipline... such as: (1) requiring all students to firmly shake the hands of their teachers and administrators at the beginning of each day and before each class; (2) walking straight on a line; (3) being required to be silent "at level zero" in the hallways; (4) being required to sit in an upright position all day, hands folded on the desk, feet planted firmly on the floor, and looking straight ahead; (5) being required to raise their hand in lock-elbow position in class or receive demerits if their arm is not straight; (6) being suspended for minor misbehaviors like laughing too much and inappropriate displays of affection." The complaint also maintains that the charter schools' students are deprived of their right to an education when students must sit in a room by themselves for the entire day without any work from their classes to do. The suspensions have been applied to special needs students, which violates the students rights under IDEA by suspending for more than ten days without investigating the reason behind the recurring suspensions. Read the complaint, courtesy of nola.com, here.
Tuesday, May 13, 2014
The Center for Popular Democracy and Integrity in Education have released a scathing report on charter school fraud, waste, and abuse. The main thrust of the report is not that charters are per se bad, but that they have outgrown the underlying theory supporting them. In plain-peak, the original theory of charters was "to allow educators to explore new methods and models of teaching," which requiring exempting charters "from the vast majority of [school] regulations." This incubation of innovation involved "calculated risks with small populations of willing teachers, parents, and students." Because the people involved were few in number, the risk was low. In recent years, however, the numbers have grown and so has the risk. A corresponding level of innovation has not followed.
In a review of 15 states with large charter school markets, the report found that “charter operator fraud and mismanagement is endemic," falling into six categories:
• Charter operators using public funds illegally for personal gain;
• School revenue used to illegally support other charter operator businesses;
• Mismanagement that puts children in actual or potential danger;
• Charters illegally requesting public dollars for services not provided;
• Charter operators illegally inflating enrollment to boost revenues; and,
• Charter operators mismanaging public funds and schools.
In those 15 states, the report identified $100 million in taxpayer losses. The report calls for oversight legislation to address the problem in the future.
Some might question whether this report is "fair," as it does not offer a picture of the "baseline" fraud that might be find in other institutions, including traditional public schools. With that said, this report is a followup to the Department of Education, Office of Inspector General's initial findings of similar problems. In that respect, its impetus would appear legitimate. Likewise, the report calls for more oversight, not a wholesale retreat charter schools.
Wednesday, April 16, 2014
Late last month, New York reached a budget deal that included a huge victory for pre-k education. New York City will receive $300 million to offer full day pre-k to 4 year olds. Included in the deal were also significant changes for charter schools. Per the New York Times, the new legislation requires the city to
find space for charter schools inside public school buildings or pay much of the cost to house them in private space. The legislation would also prohibit the city from charging rent to charter schools. . . . Under the budget agreement, charter schools would receive more money per student. The schools, previously barred from operating early education programs, would also be eligible for grants for prekindergarten.
Some are citing the legislation as providing charters the greatest protections of any state in the country.