Friday, November 22, 2013

New Wave of Charter School Litigation Demands Respect for Their "Rights"

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.

Atlanta Independent School Systems v. Atlanta Neighborhood Schools, 293 Ga. 629, 748 S.E. 2d 884 (Supreme Court of Georgia, 2013)

Start-up charter schools brought a mandamus action against the school district and Board of Education to compel them to distribute local revenue to the start-up charter schools without any deduction for district's unfunded pension liability. The Supreme Court of Georgia held that the school district could not deduct unfunded pension expenses from charter school allotments.

Parents v. York City School District

  New hope charter CaptureA group of parents whose children attend New Hope Academy in York, Pennsylvania, allege "conspiratorial actions among York City School District officials that, they allege, 'shock the conscience.'" Their theory: the defendants conspired to close an existing charter school, which had been expanding in prior years, simply because the charter was taking money and students from the district. The district claims that the charter’s performance was unsatisfactory, including poor record keeping and ethics violations.  The lawsuit was filed in the United States District Court for the Middle District of Pennsylvania and argues these actions violate due process.  

Orleans Parish School Board v. Pastorek, 122 So.3d 1106 (Ct. app. La. 2013).

This one does not exactly fit because it was brought by the local school board, but it is still about resting control of charters from some higher authority: the state department of education, State Board of Elementary and Secondary Education (BESE), and Superintendent of Education.  The local board sought injunctive and declaratory relief and alleging that the defendants were exceeding their constitutional authority by retaining control over non-failing schools that had been transferred from the jurisdiction of the school board to the BESE administered Recovery School District. The court affirmed the trial court’s opinion that held in favor of the defendants.

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