Wednesday, April 2, 2014
Edweek reports that John Kline, R-Minn., the chairman of the House education committee, and Rep. George Miller, the top Democrat on the panel, will introduce a bipartisan charter school bill in the coming days or weeks. Apparently, the bill largely mirrors one that the House passed in 2011, which would have allowed charters to access federal funds to replicate successful charters, and included additional facility funds. That bill did not make it through the Senate.
This new forthcoming bill's only significant shift from the prior bill is to place greater emphasis on funding charter management organizations, as opposed to individual charter operators. The obvious upside is to reduce the risk in funding untested start-ups. On the other hand, preferencing management organizations raises the question of whether this change is a response to an organized lobby rather than some actual data driven findings. Funding organizations also potentially adds administrative expense onto the education process, unless the organizations' efficiencies offset the administrative costs.
Monday, March 17, 2014
Osamudia R. James' new article, Opt-Out Education: School Choice as Racial Subordination, is now available on westlaw at 99 Iowa L. Rev. 1083 (2014). Her abstract summarizes the article as follows:
Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher programs and charter schools. This Article moves past the typical market-based critiques of school choice to analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system. The Article unpacks the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes, and the ways in which choice merely masks racial subordination and the abdication of democratic values in the school system. Students of color and their families may be opting out, but their decisions to do so neither improve public education nor reflect genuine choice. This Article ultimately argues that the values underlining school choice and choice rhetoric?like privacy, competition, independence, and liberty?are inherently incompatible with the public school system. The Article concludes by suggesting an alternate legal and rhetorical framework acknowledging the vulnerability of minority students, as well as the interdependence between white students and non-white students in the system, and it advances strict limitations on school choice, even, if necessary, in the form of compulsory universal public school education.
Monday, February 24, 2014
The North Carolina Court of Appeals has issued a set of decisions in companion cases dealing with charter schools' access to locally raised funds. In Charter Day School, Inc. v. New Hanover County Bd. of Educ., 2014 WL 619562 (2014), and Northeast Raleigh Charter Academy, Inc. v. Wake County Bd. of Educ., 2014 WL 640976 (2014), charters schools alleged that they were underfunded for the past several years, relying on a North Carolina statute that provides, “[i]f a student attends a charter school, the local school administrative unit in which the child resides shall transfer to the charter school an amount equal to the per pupil local current expense appropriation to the local school administrative unit for the fiscal year.” N.C. Gen.Stat. § 115C–238.29H(b) (2007). The Court of Appeals in both cases held that the charter school was entitled to a pro rata share of the local current expense fund of the school district in which they are located. The local expense fund is, in effect, the district's rainy day fund. Funds not spent in one year are saved there for a later date.
This holding, while a reasonable interpretation of the statute, may create some awkward deliberations for school districts. Regardless of whether they save or do not save money, charter schools' allotment is the same. If the district decides to save, charter schools would get their money now, whereas traditional public schools would be deferring their funds. Theoretically, it all evens out in the end, but the notion that a charter school down the street is getting funds for the current school year that traditional public school is not will not be received well by many.
Friday, February 21, 2014
Magnet schools have been stagnate for some time. For instance, as Erica Frankenberg and Genevieve Siegel-Hawley detail in Choosing Diversity: School Choice and Racial Integration in the Age of Obama, 6 Stan. J. C.R. & C.L. 219, 244 (2010), federal funding for magnet schools has been flat since the late 1980s. At the same time, charter school funding has been exponentially increasing.
Many districts perceive charters as non-public schools or anti-public schools. Motoko Rich's story in the New York Times indicates that some school districts are now re-embracing magnet schools as a way to fight back or push back against the pressures of charter schools. She points to Chicago, Dallas, Denver, Los Angeles, Newark and Washington as examples, but focuses on Miami, where the number of students attending magnet schools has increased 35 percent in the last four years.
For those who follow the segregation debate, this pushback is more important than just charters versus magnets or public schools. Various reports charge charter school with exacerbating school segregation (although I have argued their point may be exagerated). In the past, the primary purpose of magnet schools, however, has been to increase integration. In fact, federal funding for magnet schools has been explicitly conditioned on their ability to help districts meet mandatory desegregation obligations or voluntarily desegregate.
Beyond the differing roles that they play in segregation and their differing public school status (perceived or real), magnets and charters share a tremendous amount in common. This commonality, however, begs the question of why the federal government and reformers have placed so much support behind charters and so little behind magnets in recent years. Is it that they object to integrated or public schools? My article Charter Schools, Vouchers, and the Public Good, 48 Wake Forest L. Rev. 445 (2013), explores theses issues further. It refrains from labeling charters, magnets, and vouchers as inherently "good" or "bad" schools and instead asks whether they have been implemented in ways that can promote or have promoted the overall public good, which I posit is the primary question of public education.
For the New York Times story on magnets, see here.
Tuesday, February 11, 2014
Charter schools were envisioned as small-scale laboratories to test innovative educational programs and to reach struggling students who could thrive with more individualized attention. Minnesota is now deciding how to deal with those charter programs that are chronically underperforming. The state legislature seems to be doing the sensible thing this week by considering legislation to require an evaluation process for the state’s lowest-performing charter schools. The proposed evaluation system could prevent charter operators with underperforming schools from opening new schools. The current proposal may make it easier to shut down 17 of the state's chronically underperforming charters. (Charters that that have a high number English language learners or special education students would be exempt.) Minnesota Public News Radio reports that the head of a 2013 study by the University of Minnesota’s Institute on Metropolitan Opportunity says that that 25-30% of the state’s 150 charter schools are “just really terrible…considerably worse than the public schools.”
In Indiana, Establishment Clause questions are being renewed this week about private schools that receive public funds doing what public schools cannot: teaching Christian-based intelligent design doctrine and creationism with taxpayer-funded vouchers. Indiana's South Bend Tribune reports that the state's Choice Scholarship Program funds nearly 20,000 students to attend private schools with about $81 million of public voucher funds. Some of those private schools expressly state that they do not teach evolution as part of their curriculum, substituting faith-based texts for reading, history, and science classes. A recent article in Slate shows the growing amount of tax-credit scholarship and voucher programs going to schools that teach creationism as an alternative to evolution. Indiana's Choice Scholarship Program has not been challenged under the First Amendment's Establishment Clause, although the Indiana Supreme Court ruled last year that the Choice Program did not violate the state constitutional probihibition against funding religious institutions because the direct beneficiaries of the program were schoolchildren rather than the schools selected, and the state clause did not exclude religious teaching from public schools. Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013). Meredith's lawsuit challenged the state's voucher system generally (Indiana now has one of the most expansive voucher systems in the country), but Establishment Clause challenges could be coming.
Monday, February 10, 2014
A new report by the Foundation for Educational Choice, Interstate Survey: What Do Voters Say About K-12 Education in Six States?, found that heavy majorities in Alabama, Arkansas, Kansas, Mississippi, New Jersey, and New York favor expanding school choice through charters, vouchers and tax-credits. Respondents did not, however, favor all public school alternatives. They opposed virtual schools by even larger majorities. The Foundation uses these results to support its agenda, but these results don't impress me that much. Instead, the overall survey results suggest knee-jerk reactions, or guesses, rather than thoughtful or personally-held positions on the part of many respondents.
For instance, the survey also assessed respondents' basic knowledge of their state's funding levels, graduation rates, and achievement scores. On these objective measures, a large percentage, and sometimes a majority, were way off. Of course, not knowing the facts is not a bar to voting and, thus, policy advocates and politicians probably don't care. But to me, these responses indicate there was a fair amount of guessing going on. Moreover, the guessing may have been influenced by what the guessers thought the questioners or public preferred on the issues of vouchers, charters, and tax-credits. Consider that strong majorities indicated that they favored expanding charters, but only 8 to 14 percent of respondents indicated they would select a charter for their own child.
The other factor is that most respondents' perception of public schools is overly-deflated. A large percent perceiving public schools to be in worse shape than they are, which helps explain why a majority prefers alternatives in various forms. Regardless, striking to me was the percentage, who, if given the chance, would select a private school. I find this striking because, as discussed in an earlier post, public schools on the whole outperform private schools.
*chart courtesy of Foundation for Educational Choice
Yet, there is serious danger in assuming that the majority of parents who prefer school choice and private schools do so for quality reasons. The survey does an abysmal job of sorting this out. The survey asked what the most important factor in selecting a school was and the answers were: standards/curriculum, structure/discipline, test scores, school/classroom size, extracurriculars, religious or philosophical missions, and location. They did not ask, or respondents did not admit, the relevance of demographics in selecting schools, ie, the school's racial and socioeconomic statistics. Three of these states were formerly segregated by law and another two of the northern states have extremely high levels of de facto segregation, past and present. I would not necessarily expect respondents to admit these factors (although I have seen other studies where they did), but leaving these factors entirely out of a survey about school choice hides a key issue.
Tuesday, January 28, 2014
Investing in Integration: What a Second Year Law Student Knows and the Department of Education Cannot Figure Out
Jennifer Rust, a law student at Loyola University, just published Investing in Integration: A Case for "Promoting Diversity" in Federal Education Funding Priorities, 59 Loy. L. Rev. 623 (2013). She points out that the Department of Education "first identified school diversity as a priority in granting discretionary federal funding to schools in 2011," but this step "came nearly four years after a majority of the United States Supreme Court declared school integration a 'compelling government interest.'" and only after staunch criticism from civil rights advocates. Moreover, it is just one of sixteen priorities and not present in all programs. She then goes on to discuss the Department and "President Obama's rigorous support and funding for charter schools[, which has] catapulted the movement to the forefront of education reform."
The Department's Race to the Top Fund:
provides over $4.35 billion to eligible schools and awards federal funding to states that lift the cap on the number of charters they allow to operate. However, RTF provides virtually no incentive for charters to promote diversity. Under the current plan, states can win RTF funding without any effort to reduce concentrations of poverty and racial isolation within their schools. RTF is indicative of the failure by the federal government to adequately emphasize the importance of voluntary integration in its programs.
. . .[C]harter schools are uniquely positioned to promote diversity in education, but have fixated on a flawed agenda. By prioritizing high poverty schools over all others, charters have made a failed attempt to overcome the weight of history suggesting that separate schools are not better for anyone.
I was so struck by this law student's ability to capture the Department's error by omission--something not easy to spot--that I asked the usual suspects whether they had played in any role in her work. Thus far, the answer is no. Ms. Rust's footnotes indicate she has read several published papers by diversity coalitions and organizations, but came to her idea and conclusion on her own. If only the Department was as observant and considerate.
Wednesday, January 22, 2014
Stephanie Simon's article in Politico Pro this morning explains a lot about the Jindal-DOJ-Voucher fiasco that I have posted on several times. Simon explores the new Republican agenda to attract minority voters through school choice. High profile congressional leaders have been pushing choice and the the Republican Growth and Opportunity Project included it as a fulcrum issue. They believe that, at the very least, talking about choice and opportunity for minorities will soften the party's image. Even if it doesn't equal minority votes, it could equal votes from moderates.
This concerted national agenda confirms the continual suspicion in my posts that something beneath the surface of Louisiana voucher case was driving Jindal's fervor. I had intimated it was simply his stumbling across an issue that provided a platform for a national spotlight. While it achieved that end, it now seems it was probably spurred on by the national party; remember the random editorial by the Chicago Tribune, the letters of support from Cantor, and the outside research by choice advocates. This effort now seems concerted, not happenstance. The party had likely been lying in wait to find a case it could blow out of proportion. All this effort, however, does not seem to account for the fact that this is not the first time the party has tried this strategy. As James Foreman detailed in The Rise and Fall of School Vouchers: A Story of Religion, Race and Politics, 54 UCLA L. REV. 547 (2007), the republican party and the religious right sought to use minority support as a means by which to present vouchers in religious neutral terms, but the movement for vouchers eventual fell apart because it was not genuine in its commitment to minorities and they recognized it. With that said, the increased availability and ease of charter schools also disincentivized voucher policies. Regardless, this means the Louisiana voucher fight will not be the last. Whether voters will be more receptive to the national agenda than last time remains to be seen.
Thursday, January 9, 2014
The last time we saw activity in the Louisiana voucher case things were deescalating. My reading of Jindal's comments then was that he was disappointed. This was a fight with DOJ that he was itching to drag out. Playing the victim served any number of local and national political ends. It took him six weeks, but Jindal figured out a way to revive the fight. Since there was not much more to say about vouchers (because DOJ is only asking for reporting data), Jindal has now moved to terminate the underlying desegregation order altogether.
The underlying order arose out of a 1976 case, Brumfield v. Dodd decision, in which Louisiana had facilitated white flight out of integrating public schools into segregated private schools--the same concern DOJ has with the current voucher program. The burden for terminating desegregation orders generally rests with the state, but in an interesting turn, Jindal's argument attempts to flip the burden. By his reasoning, unless DOJ can show the current program is violation, the state is entitled to terminate the standing order. As noted in earlier posts, the reason why DOJ has always, at least procedurally, been on the right side of this case is that, once a violation was found (in Brumfield), it is the state that must show its policies do not perpetuate segregation, not the plaintiff who must show that they do.
Given recent history, I am sure there will be something new to report soon.
Wednesday, December 18, 2013
Decision on the Constitutionality of Washington's Charter Schools: They Do Not Fit Within the Uniform System
Just two weeks after hearing arguments regarding the constitutionality of Washington's Charter Law, the trial court has issued its opinion. The court rejected plaintiffs' claims that legislature had improperly delegated its educational duties and that the funding mechanisms for the charters were unconstitutional. The court, however, agreed with one of the plaintiffs' key theories and issued language making the point that anti-charter advocates have been screaming for over a decade. On the question of whether charter schools are "common schools" and part of the constitutionally required "general and uniform system of education," the court wrote that under existing case law in the state:
the legislature cannot "by any designation or definition" establish a common school that does not meet the minimum constitutional criteria. [That precedent] has not been overruled. . . . A charter school cannot be defined as a common school because it is not under the control of the voters of the school district. The statute places control under a private non-profit organization, a local charter board and/or the Charter Commission.
But the court followed that holding with the conclusion that, on their face, charter schools were not inconsistent with the obligation to provide an adequate education. To make that claim, the plaintiffs will have to show an actual deficiency in the quality of particular charter schools. The court said the same in regard to whether the Act removed the State Superintendent's constitutional supervisory authority. While the Act potentially could remove the Superintendent's authority, the court indicated that the statute on its face was did not require a removal of authority. Thus, plaintiffs would need to demonstrate some specific factual instance where this ocurred.
The Center for Educational Reform, a charter advocacy group, rushed to ward off the notion that the case was a loss for charters. In its press release, it wrote:
Egged on by hyperbolic media headlines, teacher union chiefs and their anti-reform surrogates declared the Washington state charter school law unconstitutional, treating it as the kiss of death to innovative educational solutions in the Evergreen State. However, the ruling actually upholds the law’s constitutionality, albeit not to its fullest, which no doubt sets up an appeal decision in an attempt to satisfy one side or the other.
. . .
According to leading interpretations of the judgment, the law itself is constitutional, allowing for the approval of charter schools to move forward in 2014. But the judge also ruled charter schools don’t fit the definition of a “common school” stipulated in the state constitution, which could present a barrier to receiving facilities funding from the state budget.
At the end of the day, all of this represents the feeble attempt at which the teacher unions and like-minded allies are trying circumvent the democratic process and impose their will on students and families in need of better schooling options. . . .
By "leading interpretations," the Center means a local newspaper, not a legal scholar. My reading is that holding that charters are outside of the definition of common schools is huge because the state has a constitutional obligation to common schools, but none to charters, even if charters might otherwise be legally created. This is key because when budgets are lean the constitution will demand that common schools are first in line. Moreover, the court left open the availability of a factual legal challenge to charters' qualitative adequacy and their supervisory structure.
Does this mean Washington cannot create charters? No. Does it mean that charters lack the unfettered access to funding and freedom from standards that charter advocates want? Yes.
With that said, this case will undoubtably make its way to the state supreme court for the final word.
Friday, December 13, 2013
Last night, LaJuana posted the lawsuit by a group of educators and taxpayers challenging the constitutionality of North Carolina's recently enacted voucher program. I wanted to add a little more commentary on how the case fits into the broader framework of voucher and school finance litigation.
The plaintiffs rely on school finance precedent and specific language in the state constitution to argue that the program is unconstitutional. First, the North Carolina Constitution indicates that state funds deriving from public lands and proceeds that are set aside for education "shall be paid into the State Treasury and, together with so much of the revenue of the State as may be set apart for that purpose, shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” Thus, the use of any of these funds for private vouchers is a violation.
Second, the state supreme court has held that, "[u]nder the North Carolina Constitution, the State must provide all students an opportunity to receive a sound basic education." But the state has yet to fulfill that guarantee for all students and, thus, the diversion of resources away from meeting this obligation is a violation of the constitution.
Third, even if one could characterize the voucher program as somehow being part of the delivery of public education, it would still violate the constitutional requirement of a "uniform system of public schools." The voucher program is essentially standardless and makes no attempt to ensure the constitutionally mandated uniformity of opportunity between voucher students and public school students.
In many respects, this lawsuit mirrors Bush v. Holmes, 919 S.. 2d 392 (Fla. 2006), in which the Florida Supreme Court held that the state's voucher program was an unconstitutional diversion of public education funds to private schools. Both cases draw on the same type of explicit
Thursday, December 12, 2013
Will the Word “Exclusively” in the State Constitution Make a Difference in N.C. Suit to Stop Vouchers?
In a lawsuit filed yesterday in Wake County, North Carolina, plaintiffs are relying on the word “exclusively” to argue that private school voucher funding is unconstitutional in North Carolina. This summer, North Carolina became one of thirteen states to offer tuition tax credit vouchers for low-income students to attend private schools. Before 2013, the state had never appropriated public funds directly for private school education. (Readers may remember the voucher law’s controversial passage—the provision was buried in a huge budget bill that passed in the wee hours of the session—that helped spark Moral Mondays demonstrations.) Unlike its sister states, however, the North Carolina constitution provides that public education funds are to be "used exclusively for establishing and maintaining a uniform system of free public schools." That language is not just verbiage, argue the 25 plaintiffs, who are an interesting mix of a former state education superintendent, parents, teachers, the daughter of Julius Chambers, and a prominent Republican county chairperson. The N.C. Constitution gives an express right to education and requires the General Assembly to provide “for a general and uniform system of free public schools.” The Constitution then provides that that education revenue “shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” That language means, the plaintiffs allege, that the state cannot transfer taxpayer dollars from public schools to any institutions outside of the public school system. The plaintiffs also object to the lack of oversight and restrictions on private schools, stating in the complaint that “[t]he Voucher Legislation does not include any enforcement or accountability provisions to ensure that institutions receiving vouchers do not exclude minority students, disabled students, or students from poor families.” If the voucher law is upheld, eligible students could receive up to $4,200 starting next August to attend private or religious schools. The lawsuit is being sponsored by the North Carolina Association of Educators (NCAE) and the North Carolina Justice Center. Read the complaint here.
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.