Education Law Prof Blog

Charter Schools Exploit Lucrative Loophole That Would Be Easy to Close

Some charter school operators make profits by leasing space to themselves at unusually high rates. By Ilya Andriyanov from www.shutterstock.com

Derek W. Black, University of South Carolina; Bruce Baker, Rutgers University, and Preston Green III, University of Connecticut

While critics charge that charter schools are siphoning money away from public schools, a more fundamental issue frequently flies under the radar: the questionable business practices that allow people who own and run charter schools to make large profits.

Charter school supporters are reluctant to acknowledge, much less stop, these practices.

Given that charter schools are growing rapidly – from 1 million students in 2006 to more than 3.1 million students attending approximately 7,000 charter schools now – shining a light on these practices can’t come too soon. The first challenge, however, is simply understanding the complex space in which charters operate – somewhere between public and private.

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New Jersey Must Rein in Improper Charter Growth

This from the Education Law Center:

Education Law Center is urging the New Jersey Department of Education (NJDOE) to take immediate steps to reverse course from a decade of explosive and improper growth of charter school enrollment, targeted in the state’s high poverty, racially isolated school districts. 

“In allowing charter schools, the Legislature wanted to encourage local stakeholders to pilot innovative practices on a school-by-school basis to improve education for all students in districts served by charter schools,” said David Sciarra, ELC Executive Director. “Over the last decade, the State has facilitated the rapid expansion of charter school networks designed to compete with, and replace, district public schools altogether, in direct violation of constitutional mandates and the Legislature’s intent.” 

ELC’s recommendations to address the problems in New Jersey’s charter school program are detailed in written comments submitted to the NJDOE. Governor Phil Murphy’s administration is undertaking a thorough review of implementation of the 1995 charter school law.

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Is California's New Ban on For-Profit Charters a Charade or a Step in the Right Direction?

My recent post on California's new charter school bill may have been too quick to lavish praise on the state for banning for-profit groups from managing charters.  For-profit charter operators are definitely a problem.  Allowing them is the equivalent of laying out a welcome sign to exploitation and legalized corruption.  For-profit operators can, for instance, entering into self-serving lease and contract agreements. They can do things that would land public school officials in jail, but which are relatively common  among  charter school operators.  Barring open corruption is a big deal, at least, symbolically.  And California does have some for-profit operators that will have to change their status and practices in the future for those charters to move forward.

But whether this new ban on for-profit charter operators changes the fundamental reality of what is occurring in most charter schools in California is a different question.  And, if it does not change the industry overall, the symbolic victory of this new law may make it harder to actually go after less obvious problems in the future.  The public might simply think the state has cleaned the sector cleaned up and, thus, be more forgiving of other questionable charter expansions in the future. 

As I emphasized in my recent post, 

 

there is still more to be done to ensure that non-profit charters are acting like non-profits.  The California law stops charters from acting purely as shell companies for outside entities, but they don't stop non-profit charters from paying their upper level staff and management unreasonably high salaries while paying their teachers unreasonably low ones. They also don't stop non-profit charters from entering into unreasonable leases.  As Tom Kelley has shown, exorbitant leases appear to be one of the biggest profit-taking mechanisms.  No non-profit acting in its and its students' own best interests would every enter into some of these lease agreements.  California's new statute prohibits for-profit management, but it does not prohibit lease deals that are not on the up-and-up.  To be clear, the point of leasing out one's land is to make money.  So leases that send profits to landlords are not inherently problematic. but California should not think its job is done with this statute.  It still needs to exercise enough oversight to ferret out problematic contracts and leases and ensure that state money is spent on students.

 

Carol Burris's new essay in the Washington Post's Answer sheet digs deeper into the facts and shows that this new bill may not be that big of a deal at all.  First, "Only 34 of California’s approximately 1,200 charter schools are owned or managed by for-profit companies."  Second, the real target of this bill appears to be online for-profit charters. "Connections Academy, run by the for-profit Pearson Corporation, is connected with four California charter schools. Most of the affected schools are run by the for-profit, online schools of K12 Inc. using various corporation names. Online charter schools have a terrible record with average graduation rates of about 40 percent."  In other words, the bill was not about reforming charter school profiteering, but going after one problematic sector--online charters--which, by the way, some other states have already been working to ban or limit for a few years now (because of the corruption that had been exposed).  Third, "because the bill does not go into effect until July 1, 2019," the for-profit corporations have a year to come with plan B.  Apparently, the plan is simply to re-up their charter applications before that date, which would give them until 2024 to actually change their practices.

 

So the cost-benefit of this new law is not as clear as I initially thought. On the one hand, it bars the most egregious and problematic behavior out there.  And if this is just the first step toward more reform, we should welcome it.  On the other hand, this bill leaves an enormous number of problems untouched and, if the public is left thinking those problems no longer exist, California is in a worse position now than it was before the bill.

 

 

California Strikes Major Blow to For-Profit Charter Schools

One of the major critiques of charter schools, although not the only one, is that they allow private entities to profit off the education of children.  Some say the possibility of profits is a good idea because it brings new players into the education "market," incentivizes efficiency, and creates competition that might drive down the cost of quality education.  In theory, I suppose that is possible, but in reality, we have seen far more evidence to the contrary.  And the possibility of profit taking without sufficient state oversight also opens the door to downright corruptions.  Preston Green has done an excellent job of tracking scandal and corruption in the charter school sector.  I argue here, however, that what we call "corruption" is often actually legal when charters do it.  The self-serving contracts and leases are the type of behavior that would land public school officials in jail, but which are relatively common with some charter school operators.

That is what makes California's new statute barring for-profit charter school operators so significant.  On their face, most charter schools are non-profit.  Many states will not issue a charter to a for profit entity.  If Big Box Stores, Inc., for instance, applies to operate a charter in Kentucky, they state will reject it.  This, however, does relatively little to block for profit entities.  All Big Box Stores, Inc. needs to do is form a non-profit.  They can call it Big Box Academies.  If Big Box Academies gets a charter, it can then simply enter into a contract with Big Box Store, Inc. to supply all the labor and supplies for the charter school.  In fact, non-profit charters regularly turn over their entire budget to for-profit management companies.  Those companies can then take as much profit as they can manage.  As Tom Kelley has shown, they develop "sweeps" contracts that are so egregious that the charter schools are probably running afoul of non-profit rules.

California's new charter law takes a big bite out of this problem.  It makes it clear that only non-profits can receive a charter in the state.  It also prohibits those non-profit charters from transferring responsibility and management to a for-profit entity.  The law states:

On and after July 1, 2019, a petitioner that submits a charter petition or a charter school that submits a charter renewal or material revision application shall not operate as, or be operated by, a for-profit corporation, a for-profit educational management organization, or a for-profit charter management organization. For purposes of this section, a for-profit educational management organization and a for-profit charter management organization are entities that manage or operate a charter school.

“Operate as, or be operated by,” as referenced in paragraph (1), means services provided by a for-profit corporation to a charter school that include any of the following:

(i) Nominating, appointing, or removing board members or officers of the charter school.

(ii) Employing, supervising, or dismissing employees of the charter school, including certificated and noncertificated school personnel.

(iii) Managing the charter school’s day-to-day operations as its administrative manager.

(iv) Approving, denying, or managing the budget or any expenditures of the charter school that are not authorized by the governing body of the charter school.

(v) Providing services to a charter school before the governing body of the charter school has approved the contract for those services at a publicly noticed meeting.

A charter school shall not enter into a subcontract to avoid the requirements of this paragraph.

 

This legislation is an even bigger deal because California has more charter school students than any other state--over 600,000.  The next highest number is 315,000 in Texas.  North Carolina, the state with the 10th most charter school students, only has 91,000.  So this new bill in California is a major blow to for-profit operators nationally.

 

With that said, there is still more to be done to ensure that non-profit charters are acting like non-profits.  The California law stops charters from acting purely as shell companies for outside entities, but they don't stop non-profit charters from paying their upper level staff and management unreasonably high salaries while paying their teachers unreasonably low ones. They also don't stop non-profit charters from entering into unreasonable leases.  As Tom Kelley has shown, exorbitant leases appear to be one of the biggest profit-taking mechanisms.  No non-profit acting in its and its students' own best interests would every enter into some of these lease agreements.  California's new statute prohibits for-profit management, but it does not prohibit lease deals that are not on the up-and-up.  To be clear, the point of leasing out one's land is to make money.  So leases that send profits to landlords are not inherently problematic.  But California should not think its job is done with this statute.  It still needs to exercise enough oversight to ferret out problematic contracts and leases and ensure that state money is spent on students.

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.

 

Diversion of District Funds to Mississippi Charter Schools Is Unconstitutional by Education Law Center

Education Law Center has filed an amicus curiae, or "friend of the court," brief in Araujo v. Bryant, a case before the Mississippi Supreme Court challenging the unconstitutional diversion of school district funds to charter schools.

The Mississippi Constitution allows districts to levy ad valorem property taxes exclusively to maintain their own schools. But the State's charter school law forces districts to transfer the per-pupil amount of those locally raised funds to charter schools when students living in the district attend them. Under Mississippi's charter law, a state agency authorizes charter schools, and districts have no control over their operation.

The Araujo lawsuit challenging the charter transfer statute was brought by the Southern Poverty Law Center on behalf of parents and students in the Jackson Public Schools (JPS). ELC's amicus brief provides the Court with crucial information about the negative impact on public school districts, especially JPS, of this unconstitutional diversion of local funds.

ELC's amicus brief explains that JPS serves a high concentration of students who are at-risk due to household and community poverty and therefore require increased educational resources. This need for additional resources for low-income students is recognized by the State of Mississippi's school funding formula. Yet JPS receives less aid than the formula requires to provide students with an adequate education. Over the last decade, the State has consistently failed to provide the funding amounts prescribed by its own formula, robbing JPS of millions of dollars in State funding each year.

ELC's brief also details the increasing amounts of ad valorem taxes JPS has been forced to send to charter schools. Since the 2015-16 school year, JPS has transferred over $4.5 million to State-authorized charter schools, an amount that will continue to increase. Ad valorem tax revenue is a critical component of the JPS budget, and JPS residents have chosen to tax themselves far beyond the minimum rate set by the State in order to support their schools. As ELC explains, insufficient State funding for the district - compounded by the diversion of ad valorem tax revenues to charter schools - results in a lack of essential education resources for JPS students.

Finally, ELC's brief provides an overview of the growing body of research from several states demonstrating 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.

ELC's brief asks the Mississippi Supreme Court to declare that the statute requiring the transfer of district ad valorem taxes to charter schools violates the State Constitution. The brief highlights that the unconstitutional diversion of local tax revenue to charter schools has a material, adverse effect on JPS students, who are being deprived of the funds required for an adequate public education and the opportunity to succeed in school.

National Study of Charter School and Voucher Policies Brings Much Needed Balance to the Conversation

The Network for Public Education and the Schott Foundation have released on new report on the privatization of public education titled, Grading the States: A Report Card on Our Nation’s Commitment to Public Schools. The report is, in many respects, the one I have been waiting for. It fills in key facts that have been missing from the public debate and will help move it in a more positive direction.

In my forthcoming article, Preferencing Educational Choice: The Constitutional Limits, I also attempt to reframe the analysis of charter schools and vouchers, arguing that there are a handful of categorical ways in which states have actually created statutory preferences for charters and vouchers in relation to traditional public schools.  I explain why a statutory preference for these choice programs contradicts states’ constitutional obligations in regard to education.  I also explain how, even if there is no statewide statutory preference, choice programs can have the effect of undermining the delivery of adequate and equitable education opportunities in particular locations.  When they do, the programs violate state education clauses. We just have to examine the facts on a case by case basis.

My research, however, analyzes the issues from a relatively high level of abstraction, highlighting problematic examples in particular states and districts and synthesizing constitutional principles from various states.  This new report drills down into the facts in a way I have never seen before.  It systematically examines charter and voucher laws in each state with a standardized methodology aimed at identifying the extent to which each state’s laws represent a decommitment to public education.

The report is the “yin” to the National Alliance for Public Charter Schools’ “yang.” Each year, the National Alliance for Public Charter Schools (NAPCS) releases a report detailing charter school laws, with the frame of reference being the extent to which states have law that promote the expansion of charters.  The report normatively assumes that charter schools are good and state laws that overly restrict them are bad.  So the states that it labels as having excellent charter school laws will probably fair poorly on the Network for Public Education (NEP)/Schott Foundation report.  For instance, NAPCS ranks Indiana as the top state for charters, but NEP and Schott rank Indiana in the 40s.

But that is what makes this report so important.  Because there hasn’t been any systemic to response to NAPCS’s reports, it has been able to skew the conversation. This new report brings balance.

Here are some key paragraphs from the executive summary:

Public schools remain a source of pride and hope, helping to level the playing field for children from incredibly diverse racial, ethnic, religious and socioeconomic groups. Even amid concerns and often unsubstantiated criticism, Americans continue to view public schools as a defining hub for their communities. In the spring of 2001, a national poll found that Americans ranked public schools as “the most important public institution in the community” by at least a five-to-one margin over hospitals, churches and other institutions. Nonetheless, within the past two decades, there has been a fervent push by those interested in privatization who seek to de-prioritize the importance of public schools and effectively undermine their functionality. Ignoring these attacks, most parents and citizens understand that public schools provide a critical service to American society by educating the majority of students with a base level of accountability while protecting their civil rights in the classroom. Moreover, a recent poll conducted in October of 2017 found that among all registered voters, only 40 percent supported vouchers while 55 percent are opposed. This number further decreases to 23 percent with opposition at 70 percent when voters were asked to consider support if it meant less money for public schools.

With the ongoing debate on the relevance and benefit of public schools versus private schools, the historical context of this debate must be understood. The commitment to a free education for American children has its roots in the 17th century and has evolved along with the laws of the nation to include a free and appropriate public education (FAPE) for all children. Those of privilege have always understood that education is the cornerstone to success and inclusion in society. Yet the reality is that disadvantaged groups including African Americans, Latinos, Native Americans, women, the poor, those with disabilities and others have always had to fight for inclusion. For many generations, structural racism inherent in American society maintained a segregated system for African Americans and people of color. From passage of Massachusetts’s first compulsory education law to present day, historically disenfranchised communities have fought for the right to receive a free education.

. . . .

The public education system was developed to serve all children and can continue to do so with the appropriate support from the federal, state and local levels. Public schools offer a rich opportunity for all children to learn from their peers of other racial, ethnic, religious or other identities. Private schools, including charters, were not created to serve all children. Although parents always have a right to send their children to private schools at their own expense, they are not and never can be the model for educating of all this nation’s children, nor should they be supported by public dollars.

The report evaluated education privatization based on the following, assigning numerical values to each:

• Types and Extent of Privatization
• Civil Rights Protections
• Accountability, Regulations and Oversight
• Transparency
• Other Factors (charter schools)

It found that:

Overall grades were assigned based on the extent of privatized school choice in the form of vouchers, neo-vouchers and charter schools, as well as the quality of the state’s laws that promoted accountability, oversight, transparency and civil rights. States earned an. The states with the best overall grades for resisting school privatization are predominantly rural states with a strong commitment to community public schools and an aversion to public dollars leaving already cash-strapped rural schools[, although]... rural state support for public education is not a universal pattern.

There are 22 states with grades between a C and a B+. Six states and the District of Columbia received a grade of D or D+ and 17 received a grade of F.

In addition to giving each state an overall grade, we assigned grades for voucher and charter policies as well. There are 22 states that earned an A+ for resisting attempts to give public funds in the form of vouchers and/or neo-vouchers to their public schools.

The six states with an A+ for their charter laws are Montana, Nebraska, North Dakota, South Dakota, Vermont and West Virginia. However, there were also 37 states plus the District of Columbia that received a Grade of F based on their charter laws — states that embrace for-profit charter management, weak accountability and other factors that make their charter schools less accountable to the public.

For more detailed findings, see here.

School Vouchers, Special Education, and the Supreme Court

Aaron Tang has posted a new paper.  School Vouchers, Special Education, and the Supreme Court is forthcoming in the University of Pennsylvania Law Review.  His abstract provides:

Among all of the contentious debates in education policy, perhaps none is as divisive as the one over private school vouchers. Even as more than 400,000 American students currently use some form of publicly-funded voucher to attend a private school—with the number growing each year—one recent survey found that just 37% of Americans support the practice while 49% oppose it. This divergence of opinion, unsurprisingly, corresponds largely with political affiliation, with Republicans more likely to support vouchers than Democrats.

In this Article, I argue that a path towards consensus on the voucher debate may be discernible in an unlikely place: an arcane pocket of Supreme Court case law regarding special education. In a series of cases, the Supreme Court has offered a vision of private school choice with plausible appeal to conservatives and liberals alike—a fact evidenced by the overwhelming consensus among the Justices themselves. In each of these cases, the Court has permitted parents of students with disabilities to remove their children from public school and enroll them in a private school at the government’s expense so long as a simple condition is met: the public school must have failed to provide the child with an appropriate education and the private school must succeed in its place. The Supreme Court’s approach to private school choice in the special education context, in other words, treats it as a simple question of empirics. We should support school choice when it helps kids, but not when it doesn’t.

Applying this view to the school voucher debate more broadly would call into doubt many of the popular value-based arguments advanced on both the left and right, leaving just one sound reason to oppose (or support) vouchers: the argument that they are bad (or good) for students. That argument, of course, is fundamentally contingent; it turns on what the research evidence tells us. And that evidence is hardly as iron-clad in either direction as the left or right might wish. That, in turn, suggests that liberals and conservatives alike should reconsider their positions on school vouchers in some important ways.

Tang, in his usual fashion, offers a thorough analysis of vouchers.  He also, probably more than any other, seeks to find a middle ground and provides a great primer on the competing positions along the way.  I had once attempted a middle ground on charters, reasoning that they were empty vessels and we could make of them what we wished.  I, like Tang, reasoned that the facts rather than ideology alone should determine the course.  My analysis admittedly was not as thorough as Tang's, but my real failure was wishful thinking. 

I could see what was happening with charter schools and surveyed the trends in my scholarship, but I imagined a world in which charters could move in a different direction, particularly if they are empty vessels.  I also underestimated the ideology that was driving the charter movement.  Those pushing the policies were not interested in the facts or effective policy. They were interested in pushing an entirely different concept of public education.  Cutting deals with that devil is hard to survive.  The ideology almost necessarily wins when the earnest equal educational opportunity types agree to purportedly reasonable compromises.

I don't mean to suggest Tang makes my mistake.  He argues that "one’s support for vouchers should not depend on abstract arguments about resource draining, shared societal values, subordination, or parental liberty. It should turn on what the cold, hard data tells us about the impact of school vouchers on educational outcomes for disadvantaged students."  That is not far removed from a point I make in Preferencing Educational Choice: The Constitutional Limits. I acknowledge that the constitutional train on charters and vouchers has already left the station.  The argument that they are unconstitutional on their face is near implausible, so advocates should stop making it.  

I also argue, like Tang, that we have to look at the facts and look at them in particular jurisdictions. These facts reveal that there are a host of constitutional problems in certain locations.  The difference between Tang's work and mine is the frame of analysis.  Tang seems to ask whether vouchers work for the students receiving them.  I ask how vouchers and charters affect the local education system.  This is not just a question of money.  And it is not just a question of what is taught in those schools--whether private schools might promote the same public values as public schools, as Tang allows.  The question is whether the overall system becomes more segregated, more unequal, more stratified, or more underfunded.  

I believe the overall education system not the outcomes for some subset of individual students within it must be the frame of reference.  It is the one our state constitutional systems were committed to 150 years ago.  And it is an assault on that system, not individual outcomes, that is driving today's school choice and reform agenda.  

 

Is Florida Where the Constitutional Right to Public Education Goes to Die?

Florida’s system of public school alternatives should serve as a warning, not a national model as Betsy DeVos argues.  And that warning flashes brighter red by the day. It all started with the state’s willingness to take money directly out of the general public education appropriation and spend it on vouchers.  The Florida Supreme Court declared that practice unconstitutional in 2006.  Then the state cooked up a complicated tax credit system to achieve the same result through a different means.  That system has been alive, well, and growing dramatically for a decade. This is what DeVos calls the “awesome [Florida] example.”

The flashing red danger sign is that the state does not want any constitutional oversight of this system.  State legislators recently packed a constitutional revision commission with people who support changes the state’s constitutional education obligations. Those changes would remove almost any limits on legislators when it comes to education.  More specifically, the proposed changes could drastically undermine the state’s obligation to its public schools by giving the state free reign to act as it wishes with charters.

A limitless charter school system is troubling based on what is already happening in the state.  Take the news out of Flagler County. According to the Palm Coast Observer,

Several days before the Florida Standards Assessments began near the end of the school year, 13 third-grade students suddenly transferred from the Palm Harbor Academy charter school to a newly created private school on the same school campus, run by Palm Harbor Academy governing board chairman the Rev. Gillard Glover.

With one exception, all of those 13 students had one thing in common: They were at least one full grade behind grade level. Many of the children were multiple grades behind grade level. Another five students in other grades, all at least two grades behind grade level, were also transferred out of Palm Harbor and into the private school at around the same time.

The students’ transfer to a private school meant that they didn’t take the state assessments required of public school students — and, therefore, didn’t drag down the school’s state scores and school grade. A failing school grade would have meant shuttering the school, School Board Attorney Kristin Gavin said, because the school got a D last year.

The school district has portrayed the moving of the students as an attempt by Palm Harbor to skirt the school grade process, at a cost to the students: Those with disabilities who were moved were not being provided state-mandated support, district officials said, at the newly created private school, the Academy of Excellence.

This is the system that the legislature voted to radically expand just a year ago.  And this is why education clauses exist in state constitutions—why we need them. 

Florida legislators, through their deeds and experiments, have shown they cannot be trusted to protect public education, to protect students, to put public education first.  Florida legislators have shown that the only thing that limits them in playing with children’s educational futures is the state constitution.  And that state constitution is in their crosshairs right now.

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The New Statewide Challenge to School Segregation in New Jersey Already Has a Lot Going For It

The new lawsuit by the Latino Action Network and New Jersey NAACP takes a bold swing at school segregation and connects.  The facts are both straightforward and damning.  New Jersey’s schools--traditional public schools and charters—are extremely segregated.  The state is responsible for the segregation in both sectors.  And the state constitution prohibits it. 

The million-dollar question is whether they can win.  I believe they can, if courts are brave enough to follow the facts and law where they lead.  Plaintiffs’ cite to Sheff v. O’Neill, a 1996 Connecticut Supreme Court case that ruled in plaintiffs’ favor on similar facts and similar constitutional language.  The New Jersey claim, however, is probably even stronger.

The extent of the racial isolation in New Jersey schools is shocking.  One in four African American students in the state attend a public school that is 99 percent or more minority.  Another one in four attend “public schools in which the percentage of Black and Latino students exceeds 90%.”  Almost two in three to a school that is “80% or more non-White.”  The numbers for Latino students are nearly as bad.  Fifty-nine percent “attend schools that are more than 80% non-White.”

Charter schools aren’t helping.  According to the complaint, they are making matters worse.  Charter schools seem almost exclusively reserved for minority in many instances.  Three out of four charter schools in the state have student enrollments that are less than ten percent white.  They argue that over 80 percent of charter schools have “extreme levels of segregation.”

The common retort to these sorts of facts is that they are the result of private choice and beyond the control of the state.  The complaint acknowledges the role that residential segregation places in school segregation, but reveals that the state cannot wash its hands of the problem for two reasons.  First, state education policy plays an additional causal role in this segregation.  In other words, this level of segregation is not inevitable.  It is a state policy choice.

Second, the state constitution and statutes prohibit this segregation.  So even if the state was simply a passive participant, the state constitution and laws would demand a remedy given the negative educational consequences that flow from this segregation.

As to the state’s causal responsibility, “[t]he State has been complicit in the creation and persistence of school segregation because it has adopted and implemented laws, policies, and

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What Do the War on Teachers, Charter Schools, Vouchers, School Accountability, and Standardized Testing All Have in Common?

What do the war on teachers, charter schools, vouchers, school accountability, and standardized testing all have in common?  They ignore school segregation.  At worst, they each harbor the assumption that their given policy prescription is the magic bullet to educational opportunity—that if we could just solve this one policy problem, educational opportunity would become equal.  At best, they assume that their respective issues are more important to student achievement than other factors.  In other words, poor teaching, a lack of school choice, or unaccountable schools are the primary cause of low student achievement and inequality.

Take teacher tenure.  Education reformers are convinced that eliminating teacher tenure is the necessary first step to any meaningful reform because tenure locks in the status quo. Their argument is simple. If teachers could not hide behind tenure, schools could easily remove the worst teachers and the rest would be motivated to improve. Given what we know about the effects of quality teaching, this, they say, would dramatically improve student outcomes and shrink achievement gaps.

But as I explain in the Constitutional Challenge to Teacher Tenure,

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Charter Schools Remove Tens of Millions in Funding from Three California Districts, While Severely Under-enrolling Students with Disabilities

Yesterday, I posted on Helen Ladd's pathbreaking study of the cost of charter schools to local school districts in North Carolina.  She found an "average fiscal cost of more than $3,500 for each student enrolled in charter schools."   Today brings more troubling factual findings out of California. In the Public Interest finds that "Oakland Unified loses $5,643 a year per charter school student while San Diego Unified loses $4,913 a year and East Side Unified loses $6,000 a year."

What was once just rebutted as rhetoric is now increasingly becoming an established fact--charter schools are reducing the amount of funding that is spent on each student who remains in traditional public school. As I recently explained in Huffington Post, states are favoring school choice at a steep cost to public education.  From funding and management practices to teacher and student policies, states are giving charter schools and private schools a better deal than public schools.

As people gawk at the dollar signs in this new report, I would, however, encourage them to not overlook more evidence of separate and unequal schools.  I argue in my forthcoming research, Preferencing Choice: The Constitutional Limits, that the preferences that states have created for charters, in particular, are helping fuel segregation on any number of levels--race, socio-economic status, language status, and disability.  This new report by In the Public Interest adds yet another piece of evidence to prove my point.

As this chart shows, while charter schools enroll 28 percent of all Oakland-area students, they only enroll 19 percent of its special education students.  And the special education students they enroll are not representative of the overall special education population.  Rather they enroll those who tend to cost less to serve.  Most notably, they only enroll 15 percent of the districts emotionally disturbed students, only 8 percent of its autistic students, and only 2 percent of those students with multiple disabilities.

The state then whops a huge advantage on top of all this.  It gives charters 28 percent of all special education funding for Oakland-area students. 

Let me say it again, as bluntly as I can, Oakland charters only serve 19 percent of the district's special education students and the ones they serve tend to be lower cost, but the charters still receive 28 percent of the districts special education funding.

 

 

Here is In the Public Interest's press release:

$142.6 Million Net Loss in School Districts in San Diego, Oakland, and San Jose, While Student Needs Go Unmet

 

WASHINGTON – In a first of its kind analysis of three California school districts, researchers found that public school students are bearing the cost of charter schools’ rapid expansion. The report calculates the net fiscal impact of charter schools on three representative California school districts: San Diego, Oakland, and San Jose’s East Side Union High School District. 

The analysis, Breaking Point: The Cost of Charter Schools for Public School Districts, conducted by In the Public Interest, a California-based think tank, with Dr. Gordon Lafer, examines the cumulative effect of charter schools on California school districts, which rank 42^nd nationwide in per pupil spending. The number of California charter schools increased by more than 900 percent to more than 1,200 schools over the last two decades. 

“Our analysis shows that the continued expansion of charter schools has steadily drained money away from school districts and concentrated high needs students in neighborhood public schools,” said Dr. Gordon Lafer, political scientist and professor at the University of Oregon. “The high costs of charter schools have led to decreases in neighborhood public schools in counseling, libraries, music and art programs, lab sciences, field trips, reading tutors, special education funding, and even the most basic supplies like toilet paper.” 

The California Charter Schools Act does not allow school boards to consider how a charter school may impact a district’s educational programs or fiscal health when weighing new charter applications. However, when a student leaves a neighborhood public school for a charter school, all the funding for that student leaves with them, while all of the costs do not. This leads to cuts in core services like counseling, libraries, and special education and increased class sizes at neighborhood public schools. 

San Diego Unified is the second-largest district in the state, with a combined enrollment of more than 128,000 students, and a total of 51 charter schools. Oakland Unified has 50,000 students and has the highest concentration of charter schools in the state. East Side Union High School District has a total enrollment of 27,000 and is comprised solely of high schools. Although the districts face unique challenges and student populations, they share similar financial challenges from charter school expansion. 

“Unlimited charter school expansion is pushing some of California’s school districts toward a financial tipping point, from which they will be unable to return,” Dr. Lafer said.

The report recommends that each school district create an annual economic impact report to assess the cost of charter school expansion in its community. With consideration of economic impact, school districts could more effectively balance the value of a new charter school with the needs of neighborhood public school students.

Key findings from the report include:

• Oakland Unified loses $5,643 a year per charter school student while San Diego Unified loses $4,913 a year and East Side Unified loses $6,000 a year.
• Charter schools cost Oakland Unified $57.3 million per year, a sum several times larger than the forced drastic cuts to Oakland’s neighborhood school system this year.
• In East Side Union High School District, the net impact of charter schools amount to a loss of $19.3 million per year.
• Charter schools cost the San Diego Unified $65.9 million in 2016-17, $6 million more than the most recent round of budget cuts in early 2018.
• In Oakland, nearly 78 percent of students come from low-income families, are English language learners, or are foster youth, while 63 percent of students in San Diego Unified and 52.7 percent of students in East Side High School Unified share those backgrounds.

 The report builds on previous studies that used different methodologies but came to similar conclusions. In the smaller cities of Buffalo, New York, and Durham, North Carolina, the net impact of charter schools was estimated as a loss of $25 million per year to the school district. In Nashville, Tennessee, the loss is approaching $50 million per year. And in Los Angeles—the nation’s second-largest school district—the net loss is estimated at over $500 million per year.

In the Public Interest is a nonprofit resource center that studies public goods and services.

New Study Finds That Each Charter School Student in North Carolina Costs Local Traditional Public Schools $3500

Helen Ladd is amazing. She is Professor Emeritus and still continues to knock it out of the park with her research.  In the past couple of years, she has opened the nation's eyes to demographic trends in charter schools.  Unlike the common refrain elsewhere that minority students are further racially isolated in charters, she and her colleagues, Charles Clotfelter and John Holbein,  showed that in North Carolina charters are increasing enrolling white students while charters increasing enroll students of color.  My thesis has long been that charters are uniquely serving as white flight schools in North Carolina because the state operates county wide public school systems that have traditionally been among the most integrated in the nation (although still far from fully integrated).

This spring Ladd and John Singleton are again pushing the boundaries of our understanding.  They recent published The Fiscal Externalities of Charter Schools: Evidence from North Carolina.  Their abstract explains:

A significant criticism of the charter school movement is that funding for charter schools diverts money away from traditional public schools. As shown in prior work by Bifulco and Reback (2014) for two urban districts in New York, the magnitude of such adverse fiscal externalities depends in part on the nature of state and local funding policies. In this paper, we build on their approach to examine the fiscal effects of charter schools on both urban and non-urban school districts in North Carolina. We base our analysis on detailed balance sheet information for a sample of school districts that experienced substantial charter growth since the statewide cap on charters was raised in 2011. We find a large and negative fiscal impact in excess of $500 per traditional public school pupil in our one urban school district, which translates into an average fiscal cost of more than $3,500 for each student enrolled in charter schools. We estimate comparable to somewhat larger fiscal externalities per charter school pupil for two non-urban districts.

In a new essay with Brookings, they plain speak and contextualize it for us:

 

In North Carolina, the state is the sole authorizer of charter schools and its authorizing legislation specifies that charter schools are to be funded at the same per-pupil rate as the public schools in the district where the students live. Funding for these purposes includes state funding which accounts for about 65 percent of statewide funding, and local supplemental funding which differs by district based largely on the wealth of the local county.

We collected financial data on school spending from six districts around the state to conduct the analysis. We selected Durham, N.C., (a county district with a traditional public school enrollment of 33,000 students) as our urban district because of: its relatively large share of charter school students (15 percent); its high local funding; and the explicit concerns of district policymakers that charters are adversely affecting the district’s ability to serve its students, many of whom are economically disadvantaged. We selected five illustrative non-urban districts based on their growing shares of charter school enrollments, and our success in obtaining the detailed local expenditure data needed for the analysis.

Estimating fiscal burdens in an art, not a science. Central to the analysis is categorizing local district expenditures into one of two categories. Variable costs–such as spending on teachers–represent those that can be cut back relatively easily with a change in the number of students. Conversely, fixed costs – such as those on administration and facilities–represent long-term funding commitments and are much harder to adjust in the short run.

For the simplest models, we assume that the district can reduce its variable spending on line with the loss of students and that fixed costs cannot be adjusted at all. In fact, however, the district will not be able to adjust its variable spending in this way if the students who shift to charter schools are spread across schools and grades. Hence, we also calculate short-run fiscal burdens that assume some stickiness in variable spending. For some of our estimates, we also vary the treatment of fixed costs by assuming that even in the relatively short run, the introduction of charter schools may allow a fast-growing district to slow its spending on facilities.

Despite these uncertainties and various modeling assumptions, the bottom line is clear. The growth of charter schools imposes clear fiscal pressures on local school districts in the short run. In Durham, for example, the burden is about $500 per traditional public school student. This estimate is somewhat smaller than the comparable per-pupil burdens of $900 and $700 Bifulco and Reback estimated in New York state using similar assumptions. Nonetheless, the potential adverse impact on education quality in Durham is likely to be larger because per-pupil spending in North Carolina is less than half that in New York.

The net fiscal burdens per traditional public school student for our five non-urban districts are lower than what we estimated in Durham, largely because of their lower charter school enrollment shares or reliance on local supplemental funding.

Changing the focus to the excess cost per student enrolled in a charter school, we calculate a burden of about $3,500 per charter school enrollee in Durham, and burdens of comparable or larger magnitudes in two of the non-urban districts.

These impacts, they argue, require a public policy response: state "aid to smooth or mitigate revenue losses for school districts in proportion to the expansion of local charters." 

DeVos' Sparring Match with Teachers Highlights the False Logic of School Choice

Betsy DeVos sat down with the state teachers of the year on Monday.  Based on Rebecca Klein's report at Huffington Post, several of them gave her a piece of their mind.  One of the most poignant was from a self-described Trump voter from Oklahoma.  He said school choice programs like charter schools and vouchers are draining money from the public schools.  He says that DeVos responded that students enroll in those programs to get out of low-performing public schools.  Then the teacher laid it on the line, saying choice programs are “creating the ‘bad’ schools by taking all the kids that can afford to get out and leaving the kids who can’t behind.”

This line of debate and reasoning has played out a thousand times, never with any satisfying resolution. 

A public school advocate critiques choice programs. A choice advocate defends charters and vouchers by critiquing public schools.  The latter is a classic “ends justify the means” claim.  They implicitly concede that even if choice is hurting public schools, the harm is justifiable because the public schools are so bad.  This rarely gets directly challenged.  Instead the debate moves to the emotional level, particularly for families with children "trapped" in “bad” schools.  It would seem unjust, if not imprudent in public discourse, to suggest they remain "trapped."  

The pro-choice argument, however, sets up both a false dilemma and false attribution that needs to be called out.  The false dilemma is to assume the only options are to stay in a “bad” public school or depart through a charter or voucher.  Of course, the other option is to improve the public school itself.  The Massachusetts Supreme Court pretty clearly cut through this faulty logic in its recent decision rejecting a challenge to the state’s charter school cap.

The false attribution is to assign causation to “bad” schools.  These schools do not exist in a vacuum.  They don’t just create themselves.  They are creatures of the state.  The state funds or underfunds them.  Staffs or understaffs them.  Segregates or integrates them.  Supports their success or doesn’t.  If, in fact, a school is “bad,” it is because of the policies that states have chosen to pursue in them.  So the cause of parents desire to leave the public schools is not actually the public schools themselves, it is the state's actions.  And it is, ironically, this exact same state actor that choice advocates let off the hook when they ask for school choice rather than school improvement. 

This lead to yet another logical flaw—false hope.  They falsely trust the state actor who is depriving children of equal educational opportunities to fix the problem by absolving itself of responsibility. The actual facts of how states are running their traditional public schools versus their charter schools and vouchers reveals that many states’ driving motivation has been to undermine public education not fix it.  And state leaders are willing to do anything necessary behind the scenes to pursue their own partisan agenda.

Reminds me of the line from Usual Suspects: “The greatest trick the devil ever pulled was convincing the world he didn't exist.”

 --on Twitter @DerekWBlack  

Arizona Lawmakers Are Unrepentant, Slipping in New Money for Koch Brother Agendas When They Are Supposedly Fixing Teacher Salaries

While Arizona teachers may have shamed their lawmakers and pressured them to work faster on the budget, Arizona lawmakers are sticking to their playbook.  In the middle of a massive teacher strike, the legislature found it fit to continue patronizing its most conservative elements--those in line with the Koch Brothers.  AZ Central reports that nestled in Arizona's new budge is a $5 milllion earmark "for so-called freedom schools aimed at advancing free-enterprise ideals at Arizona State University and University of Arizona." 

Five million is chump change in the grand scheme, but it speaks to a fundamental challenge in the state.  The Koch Brothers have declared Arizona ground zero in the fight to reshape public education.  They are heavily supporting a referendum this fall that would dramatically expand vouchers in the state.  If it succeeds, the budget deal that Arizona makes now to increase teacher salaries could be undercut months later with a new law that makes many public teaching positions obsolete.  In other words, teachers may get a raise, but there would be fewer of them if the voucher bill succeeds.

This earmark is a sad reminder of my reflections in the LA Times: State leaders may make public concessions to teachers in the short-term, but they are willing to change any rules necessary--including constitutional and democratic norms--to see that their anti-public education agenda succeeds in the long-term.  I wrote,

Teachers are walking out again, this time shutting down campuses in 90 or more school districts across Arizona. Gov. Doug Ducey claims to be puzzled: He endorsed a plan to give teachers raises that would add up to a 20% pay increase over the next three years. Why would teachers walk out now?

Surely part of the reason is that teachers in Arizona know a concession on pay isn't the same thing as a genuine commitment to public education. State leaders like Ducey are so dead set on privatizing education or spending school funds elsewhere that they are ready to change any rules — even longstanding constitutional and democratic norms — to further that agenda.

The biggest norm of all — the very concept that states provide an education to all children — dates back to the 1860s. State leaders then believed that for average people — including African Americans newly freed from slavery — to exercise their rights as citizens, they had to be educated. And unless average people participated in self-government, the country could not live up to its democratic promises. Today, all 50 state constitutions, in one way or another, guarantee access to equal, adequate and stable public education.

Various constitutional mechanisms ensure states make good on this responsibility. For instance, most require creation of a state board of education, state superintendent or both. Those officials may be elected or appointed, but regardless of the exact process, the goal is to separate education decision-making from everyday politics. In North Carolina, for example, the constitution mandates "a politically and geographically diverse Board comprised of education experts who serve lengthy terms." The state's constitutional framers thought this would enable "the Board to place education above politics.

Many political leaders today, however, don't want to abide by these norms. Some even question the state's role in providing public education. If they can change constitutional norms, they can win the larger war over public education while conceding current skirmishes.

Kentucky offers the most recent example. Earlier this month, a statewide teachers strike led the Legislature to increase the education budget over Gov. Matt Bevin's veto. The loss did not deter Bevin. He just changed strategies. Last week, he had the state superintendent of education, who had more than a year left on his term, removed without cause. His handpicked board of education did the dirty work. The governor's favored replacement is someone from his own office who could be counted on to promote charter schools.

Other states have done the same. After the 2016 election in which Republicans lost the governor's mansion in North Carolina, the lame duck Legislature passed a bill to strip the state board of education of its power, transferring the authority to the superintendent's office, which was won by a Republican. Indiana lawmakers pursued a similar strategy in 2015 when the superintendent's positions conflicted with then-Gov. Mike Pence.

Courts stand as the final check on these manipulations. Where some are holding strong in important states, lawmakers are looking to amend their constitutions to fix that. The Florida Constitution Revision Commission — a panel stacked by and with Republican lawmakers — has just put an amendment on the November ballot that attacks public education on multiple fronts. It imposes term limits on local school boards and would let the state establish privately run charter schools over the objection of local school boards. Most insidiously, it would replace the requirement that Florida maintain a "uniform" system of free public schools with one that the Legislature provide for the "promotion of civic literacy."

Similarly, the Kansas Supreme Court repeatedly has found that the state is depriving students of their constitutional rights to education. In partial response in 2015, the state passed legislation to defund the judiciary if it continued to strike down the state laws. The state also stripped the court of its authority to appoint lower court judges. This year, Kansas legislators started calling for a constitutional amendment to deny courts the authority to hear school funding cases at all. The proponents went so far as to hold up the state's entire public education budget until they got a vote on the proposal. Only a looming deadline ended the standoff.

Arizona is ground zero in a fight to reshape public education led by billionaire industrialist Charles Koch and his network of conservative political donors. Last year, the state passed an expansive voucher bill that gave state subsidies for private school tuition. Now, the Koch network wants more.

At a policy conference in California in January, they announced plans to support a statewide referendum that could shovel even more taxpayer money into private schools. When they offered Gov. Ducey the podium, he was all in. "I didn't run for governor to play small ball. I think this is an important idea," he said. Next door, Nevada's state supreme court recently declared just this type of voucher idea unconstitutional because it put finding priorities for private education ahead of public education.

These tactics reveal that public education is under long-term assault, no matter what short-term concessions are won in Arizona or by other teacher protests. Education advocates must start guarding our constitutional and democratic norms in education as jealously as they are guarding teachers' salaries. Otherwise, they will wake up one day with nothing left to defend.

  --on Twitter @DerekWBlack  

How States' Obsession with School Choice Is Fueling an Education Crisis--And Increasing Teacher Salaries Won't Fix It

States are favoring school choice at a steep cost to public education

Colorado teachers rally outside the state Capitol April 16 to demand more funding for schools. Colleen Slevin/AP

Derek W. Black, University of South Carolina

Teacher strikes are generating a healthy focus on how far public education funding has fallen over the past decade. The full explanation, however, goes beyond basic funding cuts. It involves systematic advantages in terms of funding, students and teachers for charter schools and voucher programs as compared to traditional public schools. Increasing public teacher salaries may end the current protests, but speaking as an expert in education law and policy, I believe it won’t touch the new normal in which public education is no longer many states’ first priority.

My forthcoming research shows that, from funding and management practices to teacher and student policies, states are giving charter schools and private schools a better deal than public schools. These better deals have fueled enormous growth in charter schools and voucher programs that is now nearly impossible to unwind.

The most basic shift occurred between 2008 and 2012. Florida and North Carolina illustrate the nationwide trend. Each cut public education funding by 20 percent or more in three years. During the same period, North Carolina lifted its cap on new charter schools and quickly doubled its charter school spending. Florida similarly changed the rules for its voucher program and quadrupled its size.

Favorable funding practices

States also passed laws to offer charters and private schools more money for each student they took. Florida increased the value of each voucher by roughly US$2,000. Nevada went even further, passing legislation that would convert every single public education dollar into a voucher dollar. While the state Supreme Court later declared the program unconstitutional, it has not stopped other states like Arizona from pursuing similar programs.

Several states also began lifting income eligibility limits. Previously, states had provided vouchers only for low-income students. But new voucher programs made them available to wealthy students as well, even those who already had access to excellent public schools.

Charter schools benefited from similar advantages in some states. Ohio and New Jersey funneled charter school funding through school districts, but the states’ antiquated funding formulas and charter reimbursement rates force districts to send charter schools more per pupil than they receive from the state.

Pennsylvania has a similar scheme, but it has proven so lopsided that it expanded deficits in Philadelphia and nearly bankrupted the Chester School District. Chester was paying the local charter school roughly $40,000 per special education student, including for those students with relatively low-cost needs. Arizona took a simpler route. It shielded charter schools from the budget cuts it was imposing on traditional public schools.

Less oversight

Once they receive the money, charter schools and private schools receiving vouchers can spend it almost any way they want. Private schools operate just as they had before. And charter schools – though technically public schools – are exempt from typical financial oversight.

Laws require public schools to award contracts through a transparent process and prohibit public schools from entering contracts that pose conflicts of interest. Charters can award contracts to almost anyone they like – and on any terms they like. This includes awarding contracts to companies that have close financial ties with the charter. A person can start a purportedly nonprofit charter school and then have that charter purchase all of its services and supplies from a company owned by that same person. As a result, the person can turn a profit on staffing, facilities, technology and supplies. National Heritage Academies runs this exact type of business model in North Carolina and continues to grow its campuses.

The same activity could constitute fraud or criminality in a public school. Yet, state law permits it for charters. As Thomas Kelley’s analysis reveals, many of the charter schools that state law calls nonprofits would not qualify for that same label under federal law.

No checks on profiteering

Even well-meaning charter schools have been unable to stop this profit-taking. The Ohio Supreme Court, for instance, found that state law dictates that everything a private charter school company purchases with public dollars – from desks to computers – belongs to the private company, not the public. The same is true of buildings that charter schools lease. Charter school operators reap their largest profits through unreasonably high lease payments on buildings that the public will never own.

States also allow private schools and charters to treat students differently. While public schools must provide disadvantaged students with a host of special services, private schools take vouchers with almost no strings attached. And they are increasingly taking high-achieving middle-income and nondisabled students who cost less to educate and typically do not demand specialized services.

Charter schools’ advantages come in their ability to recruit students and cap enrollment. Public schools must serve everyone in their community. The clearest proof that charters don’t is in the data. For instance, Newark charter schools enroll less than half the percentage of special education students and English language learners as the Newark public schools. Newark charters also enroll significantly fewer low-income students. In North Carolina, charter schools are increasingly enrolling white students, while public schools increasingly enroll students of color. In Minneapolis, 80 percent of charters are racially isolated by race, socioeconomic status or both.

The most obvious advantage, however, is with teachers. Most states exempt charter schools from teacher certification requirements. Half exempt charters from complying with high-stakes teacher evaluation systems. More than three-quarters exempt charters from the teacher salary and collective bargaining rules. In short, states permit charters to hire teachers that would be deemed unqualified in a public school and pay them less.

The need for a structural shift

The current debate over school funding must move beyond teacher salaries and whether the books in public schools are tattered. Those conversations ignore the systematic policies that disadvantage public schools. Increasing public school teachers’ salaries alone won’t fix the problem. The public school teaching force has already shrunk. Class sizes have already risen. And the rules that advantage charter and private schools remain firmly in place.

Long-term solutions require a reexamination of these preferences. As a state constitutional matter, the law requires that states make public education their first priority. It is not enough to make education one of several competing priorities. And as a practical matter, states cannot continue to ask public schools to work with whatever is left over and then criticize them for doing a poor job. This cycle creates a circular justification for dismantling public education when states should be repairing it.

Derek W. Black, Professor of Law, University of South Carolina

 --on Twitter @DerekWBlack

This article was originally published on The Conversation. Read the original article.

Massachusetts Supreme Judicial Court Rejects Policy Ploy to Use Constitutional Right to Education to Eliminate Charter Cap

--image by Swampyank

Yesterday, the Massachusetts Supreme Judicial Court dismissed the attempt by charter school advocates to use the state's education clause to force more charters on the state.  This basic holding is, no doubt, reason to celebrate.  It is an enormous victory for those who support traditional public schools--or at least offers a huge sigh of relief.  The opinion, unfortunately, should also make us cry because it continues a troubling pattern of judicial disengagement on the right to education that began in 2005.

We should applaud the decision because it refused to allow policy dictate the outcome:

 

[E]ven if the plaintiffs had successfully stated a claim under the education clause, the specific relief that they seek would not be available. The education clause provides a right for all the Commonwealth's children to receive an adequate education, not a right to attend charter schools. The education clause provides a right for all the Commonwealth's children to receive an adequate education, not a right to attend charter schools. "[T]he education clause leaves the details of education policymaking to the Governor and the Legislature."

Thus, here, although the remedy the plaintiffs seek by way of this action, i.e., expanding access to charter schools, could potentially help address the plaintiffs' educational needs, other policy choices might do so as well, such as taking steps to improve lower-performing traditional public schools. There may be any number of equally effective options that also could address the plaintiffs' concerns; however, each would involve policy considerations that must be left to the Legislature.

This part of the Court’s decision is exactly in line with my analysis of Vergara v. California.  There, plaintiffs had attempted to use the education clause to argue that teacher tenure was unconstitutional.  The Court ultimately dismissed that case as well for much of the same reasons as the current Massachusetts case.

But this new decision should also make us cry.  Turning away this charter claim does not guarantee that the state will provide adequate educational opportunities to students in the public schools.  And this decision said nothing that would increase the pressure on the state to do so.  The Court wrote:

We agree with the plaintiffs that the education clause imposes an affirmative duty on the Commonwealth to provide a level of education in the public schools for the children there enrolled that qualifies as constitutionally "adequate." However, we conclude that . . . plaintiffs would need to plead facts suggesting not only that they have been deprived of an adequate education but also that the defendants have failed to fulfil their constitutionally prescribed duty to educate. . . .

To allege that the Commonwealth has failed to fulfil its duty to educate, plaintiffs must plead sufficient facts that, accepted as true, demonstrate that the Commonwealth's extant public education plan does not provide reasonable assurance of an opportunity for an adequate education to "all of its children, rich and poor, in every city and town," over a reasonable period of time, or is otherwise "arbitrary, nonresponsive, or irrational."

 I am working on a longer analysis, so stay tuned for an update to this one or a separate one all together.

 --on Twitter @DerekWBlack

 

Two Maps of DC Charter Schools Tell It All: DC's Schools Are Separate and Unequal

These maps of Washington DC's schools and neighborhoods from Andre Perry's new piece at The Hechinger Report say it all.  The first map is color coded by wealth.  The darker the blue the wealthier the neighborhood.  The red stars are private schools and the yellow dots are charters.

I drew a line from the top of this diamond to the bottom.  What you see is incredible stark.  Except for one that straddles the line, all the city's charter schools are to the right of that line.  The city's wealthiest families are densely located to the left of the line.  And while there are certainly a number of private schools in the wealthy areas, there are actually more private schools to the right of the line than the left. 

To be clear, there is less land mass to the left.  But notice the dark blue neighborhoods to the far west.  They don't have a single private or charter school in them.  Look at the dark blue neighborhoods in the north, the only private schools there are on the periphery.

What does this tell us?  It tells us that wealthy neighborhoods in DC don't need alternatives to the public school system.  They are more than happy with the public schools.  Only low income students need alternatives.

To put it more bluntly: Charters are for poor kids.  And private schools are not even for wealthy kids when the public schools are good.

To summarize Julia Burdick-Will, school choice is not a privilege.  The real privilege is not even needing to choose a school.

 

 

The next map swaps family income for race.  It is even more stark and you don't need the red line because the race line speaks for itself.  Light blue shading represents majority white neighborhoods.  The darker blues are majority to predominantly minority.  From this map, charters are only for neighborhoods of color. 

Charter proponents will say these charter schools are a reflection of the fact that public schools are not serving minority students well.  I would second the fact that public schools are not serving minorities well.  But it strikes me as extremely odd that the DC Public School system does not have an trouble serving white and wealthy families.   It is only minority students whom the system struggles to educate.

Rather than demand that DC public schools serve all of its students well, public policy has chopped up the city and turned it into one that is separate and unequal: Good public schools for those who live in majority white neighborhoods and a litany of alternatives to public schools for those who live in majority minority neighborhoods.  The litany of options, however, still don't add up to what kids on the other side of town have.

 --on Twitter @DerekWBlack  

 

Philadelphia's Effort to Exercise Minimal Oversight of Charters Draws Lawsuit; State and District Ought to Go Much Further

Philadelphia has taken some baby-steps to reign in charter schools.  Any such step, regardless of its merits, is sure to be met with stiff resistance from the charter industry.  According to local reports, "A nonprofit that supports charter schools filed suit Thursday against the Philadelphia School District, saying the school system’s new policy unfairly and illegally restricts charter-school operations."  It is challenging a policy that it says "will require charters to seek approval from the district for virtually all changes to their curriculum and imposes illegal enrollment caps."   Rather than a “neutral arbiter," the district is trying  “to micromanage their operations,” said Stephen DeMaura, executive director of Excellent Schools PA. He further adds, “we believe the main purpose is to restrict the operations and growth of charter schools, not improve the outcomes of children.”

Lest the average citizen take DeMaura or my word for it, looking at what the Commission actual did is the best thing to do.  The updated policy states:

Charters generally exist for a defined term of five years. During that charter term, changes in regulations, operation, ideology, or business need may cause a charter school to seek a formal amendment. The CSO will work with all charter schools expressing interest in a charter amendment, consistent with this policy, to meet the needs of the charter school and its students. Material charter amendments submitted during the charter term require authorization by SRC resolution and signed agreement. Such authorized or approved amendments become effective once a written amendment to the charter has been duly executed by the School District and the charter school. The CSO shall develop administrative procedures describing the application requirements and evaluation process to be followed in reviewing each type of Material charter amendment request consistent with this policy.

In short, in the normal course of seeking renewal of its charter, a charter school should let the district know of any material amendments to its operating plan.  The district will then evaluate those amendments.  In more everyday terms, the state and the charter have five year contracts.  When those contracts are up, let's talk about any new terms the charter wants to add.  Doesn't sound all that radical, but the devil is always in the detail.  What is a "material" change?  The updated policy says material amendments are:

Changes to charter agreements that fundamentally affect a charter school’s mission, governance, organizational structure, location or facility, educational plan or the CSO’s ability to effectively monitor charter school operations and quality. Material charter amendments include:

1. Enrollment expansion of 10% or fewer of the current maximum authorized enrollment or 100 seats, whichever is less (only qualified applicants as defined by eligibility criteria of this policy may be considered for enrollment expansions under this policy);
2. Change to grade levels served;
3. Significant change to mission, or fundamental change to educational plan;
4. Name change of Renaissance charter schools due to business-need or legal requirement ;
5. Change in building location or addition of new facility due to business-need, unavailability of current facility and/or emergency; and
6. Change in CMO [charter management organization].

Those don't sound that intrusive to me.  I have argued that if charter expansion is to occur consistent with state constitutional obligations, states must exercise--or authorize districts to exercise--far more oversight than this. Relying on basic state constitutional principles, I explain here that:

First, states cannot preference private choice programs over public education. This conclusion flows from the fact that most state constitutions mandate public education as a first-order right for their citizens. Second, choice programs cannot have the practical effect of impeding educational opportunities in public schools. Education clauses in state constitutions obligate states to provide adequate and equitable public schools. Any state policies that deny students those opportunities are unconstitutional. Choice policies that, for instance, reduce public funding for education, stratify opportunities, or intensify segregation fall in that category.

Preventing this problems requires data-driven analysis of funding, enrollments, demographics, and educational opportunity.  Philadelphia might be creeping into the charters' domain more than they have in the past, but they have far more to go.

--on Twitter: Ed Law Prof Blog @DerekWBlack

Charter School Polls Show Increased Support, But They Are Asking the Wrong Question

Last year, polls of public support for charter schools dropped.  When asked whether they support “the formation of charter schools,” the percentage of people answering yes fell to an all-time low of 52 percent in 2017.  That was a whopping 13 percent lower than the year before.  Some attributed the drop Betsy DeVos's unpopularity and the NAACP's call for a moratorium on charters.  This year's poll, however, shows a 10 point jump.  Support for charters is now at 62 %, basically within the margin of error of the 2016 poll.  So were the 2017 results a polling error, a blip on the radar, or something else?

My opinion is that the polls are asking the wrong question to begin with.  The question is too general and decontextualized.  It is like asking whether Congress should authorize the President to invade Iraq following 9/11.  Most were willing to say yes but only on the assumption that weapons of mass destruction existed.  But far fewer supported authorization to invade regardless of the threat the country posed to US interests.

Do people support the creation of high quality charters that don't increase racial isolation or harm public schools?  Sure, why wouldn't they.  The problem is that data shows us those facts increasingly don't exist.  North Carolina, Minnesota, and New Jersey data reveal very troubling segregation trends.  National studies reveal that the vast majority of charters are no better than public schools and that there are more low performing charters than high performing ones.  Data also shows that communities that need the biggest improvements in education often have the worst charters.

Data also shows that the vast expansion of charters over the past decade closely correlates the the defunding of traditional public schools.  At the same time states were cutting public education budgets by 10 and 20%, they were doubling the enrollment in charters.

Charter policy does not have to be a zero sum game.  In theory, they can coexist with and complement traditional public education.  In practice, they haven't.

The problem with these polls is that they ask a theoretical question to people who haven't been informed of the reality.  

        --photo by Peter Southwood