Constitutional Problems Aside, Is Mississippi's Charter School Law Flawed?

As discussed in a post last week, the constitutionality of Mississippi's charter school law is currently before the state supreme court.  The issue is whether a statute requiring the transfer of district ad valorem taxes to charter schools violates the State Constitution.  There is both a pure legal and pure empirical issue embedded in the case.  First, regardless of its educational effects, is the formal transfer of funds unconstitutional?  Second, even if the formal transfer is permissible in general, does the transfer have the practical effect of denying students access to their constitutionally guaranteed education?  The Education Law Center argues that

the growing body of research from several states demonstrat[es] the negative fiscal impact of charter schools on local school districts. Districts have fixed costs that are not offset when a student moves to a charter school. Districts must continue to educate at-risk student populations requiring additional resources, including poor students, English language learners and students with disabilities. The transfer of per-pupil funds to charters schools leads to reductions in programs, staff, and services needed for the education of district students. Loss of revenue to charter schools, combined with existing underfunding - as is the case for JPS - creates significant deficits in education resources for district students.

Brand new analysis by Robert Garda suggests that there is a third question, which will rise in prominence, if this constitutional challenge fails.  That question is simply whether Mississippi's charter law, when assessed within the universe of charter laws, is an effective one for managing charter schools in the state.  In The Mississippi Charter School Act: Will it Produce Effective and Equitable Charter Schools?, 36 Miss. C. L. Rev. 265 (2018), he argues that the Act has flaws, even if it is constitutional.  Among his chief concerns are the "quality surround the authorization standards, the automatic closure and nonrenewal provisions standards, and level of required academic performance" and the "governance structures surrounding special education.

His abstract offers this summary:

The Mississippi Charter School Act (CSA) is under constitutional and political attack. On the first front, litigation is underway challenging the funding provisions of the CSA under the Mississippi Constitution. The second front is a broader political attack against charter schools generally, which questions their effectiveness, viability and impact on traditional public schools. These critical issues have diverted attention from a third, and equally important, consideration: whether the CSA is an effective charter enabling statute. This article addresses this overlooked issue and analyzes the CSA to determine if it constructs a landscape that ensures the creation, governance and oversight of effective and equitable charter schools.

The current constitutional and political attacks seek to prevent charter schools from existing at-all in Mississippi. But if charter schools are deemed constitutionally permissible (almost all similar attacks have failed) and if they continue to grow in Mississippi (as is occurring nationwide), the CSA and the policies of the Charter School Authorizer Board of Mississippi (CSAB) stand as the primary mechanisms ensuring charter schools are effective and provide equitable access. This article provides a critique of the CSA and CSAB’s policies and suggests changes to ensure that Mississippi provides equitable access to high performing charter schools.

Hats off to Professor Garda for not jumping to one side or the other of the constitutional issue and, instead, focusing on real world questions that need answering once the dust settles, something scholars--including myself, do not always do.  You can download the full article here.