Good morning, CharterFolk.
Today we are pleased to share a great Contributor Column from Sarah J. Kollman, Esq. and Lee J. Rosenberg, Esq. at Young, Minney & Corr LLP, one of the most respected legal firms in California and indeed in the entire country working on charter school issues.
Bios for Sarah and Lee are available here.
I thank Saran and Lee for sharing such helpful analysis of the proposed federal regulations and for explaining why it is so important that we all submit our comments before the April 13 deadline. For those of you who have not submitted comments yet, please do so today using this link.
Charter School Lawyers Sound the Alarm for Public Comment by April 13 on Proposed U.S. Department of Education Regulations
As California charter school lawyers, every day we witness firsthand the on-the-ground impact of anti-charter statutes and regulations on how chartering authorities, state agencies, and the courts decide the fate of charter schools in California. These anti-charter efforts impact almost every aspect of your operations, your right to exist, and your capacity to grow and serve students. The words that lawmakers and regulators choose increasingly and deliberately mean that more charter schools will cease to exist or be unable to expand (despite intense demand and need), and many would-be charter schools will never have the opportunity to exist and serve students.
The proposed regulations from the U.S. Department of Education relate to grant funding under the federal Charter Schools Programs (“CSP”), which provides start-up and replication grants, will do more to prevent the existence of high-quality schools desperately needed by low-income students of color. We cannot be complacent. As advocates who see the adverse consequences of these kinds of regulations 100 steps ahead, we urge you to take the time to submit comments in opposition now and by the deadline of April 13. We urge you to call out the unacceptable policy choices and consequences of the proposed regulations. Below we are sharing some of our thoughts that we hope will help you to craft your own.
The policy shift that the U.S. Department of Education is trying to enact through regulation is not just irrational and harmful to students, it is illegal. The United States Congress authorized CSP and apportions funding to that program for grants in accordance with the law. That law, in accordance with 20 U.S. Code Section 7221 provides the policy of the federal government, through the CSP, shall be to “improve the United States education system and education opportunities for all people in the United States by supporting innovation in public education in public school settings…;” “provide financial assistance for the planning, program design, and initial implementation of charter schools;” “increase the number of high-quality charter schools available to students across the United States;” and expand “opportunities for children with disabilities, English learners, and other traditionally underserved students to attend charter schools…,” among other objectives. The U.S. Department of Education has no authority to depart from those objectives under which it must fund charter school growth, but its proposed regulations are an attempt to completely re-write the statute.
Here’s what concerns us the most, and we encourage you to incorporate or expand on these comments as you make a comment of your own:
- Page 27: The regulations perversely protect school district enrollment over students’ interests in the best education possible.
- The proposed regulations condition federal funding for charter school growth on “evidence” that the charter schools to be opened or expanded do “not exceed the number of public schools needed to accommodate the demand in the community.” This means that charter schools located in school districts with empty seats (e.g., due to declining enrollment, excess capacity beyond enrollment demand) will not be deemed to justify federal funding for startup, replication, or growth, even where there is strong community demand for high quality charter schools and the existing public schools are failing students.
- The fact that a school district has capacity to enroll a student and sufficient schools does not mean that the interests of students will be met by enrolling in the existing schools and occupying empty seats. The purpose of charter schools, and the policy directive of CSP has always been and continues to be about providing competition in education, incubators for innovation, nimbleness in execution, unconstrained by bureaucracy, and school choice through charter schools.
- Standing in the way of a student having the opportunity to enroll in a new or expanded charter school because their school district has capacity is inconsistent with the CSP, it does not serve the student, and creates no incentive for the school district to do better. The CSP contains a mandate to increase high quality charter schools without consideration of school district interests, and this proposed regulation will stand in the way of this policy.
- If a charter school succeeds, students will succeed, and that is the whole purpose of funding growth and expansion, irrespective of the existing quantity of schools. Protecting school districts from competing with charter schools because that school district has capacity, is a policy that fails students, and will frequently reward school districts for educational malpractice and decades of fiscal irresponsibility – which, in many cases, led to their declining enrollment and excess capacity.
- Page 14: The proposed regulation’s “collaboration requirement” would allow school districts with a massive conflict of interest to inappropriately veto charter school growth for any reason or no reason at all.
- The regulations require applicant charter schools to both provide a confirming letter, and subsequently enter into a written agreement showing that they will collaborate with a local school district.
- Even if a charter school applicant could overcome the oppressive hurdle of showing that the charter school will not locate in a school district with sufficient capacity, the school district can veto a charter school’s eligibility for startup and growth funding by refusing to agree to “collaborate” with the charter school, for any reason or no reason at all.
- Giving school districts this veto allows for a massive conflict of interest to infect the process for federal funding. Because charter schools frequently compete with school districts for students (by design, to promote improvement in public education), every student enrolled in a charter school represents education funding that the charter school will receive and the school district will not receive.
- For a significant number of school districts that have overextended themselves for decades, have been financially mismanaged, and have experienced declining enrollment, they have zero incentive to support charter schools in their school district, which will make decisions with those interests in mind.
- The proposed regulations give school districts sole and final say in whether a charter school will be eligible for startup and growth funding, and they will always be conflicted in that decision. The proposed regulations put student interests last. They are incompatible with the federal government’s proper role in education to ensure the best possible student outcomes.
- The regulations would facilitate modern institutional discrimination by the Administration against students of color, English learners, poor students, homeless students, and foster youth.
- Students should be able to attend the public schools that will provide them with the best education. Period. School districts overwhelmingly assign students of color, English learners, poor students, homeless students, and foster youth to attend the public school in their neighborhood, which frequently have poor track records for closing the achievement gap.
- Charter schools provide necessary competition with those schools for students, which is a key reason for charter schools, and allow marginalized students an opportunity to end and escape the cycle of poverty and low achievement by learning at a school beyond the attendance zone where they live, and which they believe will meet their needs.
- The proposed regulations will disempower marginalized students and their families and will take away their agency to make choices that are best for them; it will deny charter schools critical funding needed to open and expand and provide needed educational options to underserved students and families.
- The proposed regulations are plainly inconsistent with federal policy under the CSP, particularly to “expand opportunities for children with disabilities, English learners, and other traditionally underserved students to attend charter schools…” They will decrease opportunities for these student groups by constraining charter school growth.
- Pages 9, 10: The regulations exemplify the kinds of “alternative facts” that the Administration has decried, are intellectually dishonorable, and would be a stain on the integrity of the federal government’s role in education in supporting excellent public schools free of politics.
- The factual justifications for the regulations are not facts at all. Regulations issued by a federal agency charged with supporting the education of children must reflect the academic integrity we expect of researchers, policy experts, students, and teachers. Otherwise, we allow educational decisions to be driven by politics rather than the needs of students.
- The regulations offend these principles in multiple ways, for example:
- Page 9 cites Identifying Barriers: Creating Solutions (2016) by Timberly Baker, Jillian Wise, Gwendolyn Kelley and Russell Skiba as standing for the proposition that charter school “teachers, parents, and community leaders have expressed concerns about not being included as active participants in charter school decision-making.” However, the article does not actually state this, or relate to charter schools at all.
- Page 10 cites How Charter Schools Can Leverage Community Assets through Partnerships, National Charter School Resource Center (2021) for the proposition that “some charter schools may not fully engage other community members and organizations that are also well-positioned to help assess the educational aspirations and needs of students living in their neighborhoods,” but the report instead features charter school organizations that are highly performing in that area.
- The proposed regulations are clearly based on untruths and false assumptions and cannot be used to support the need for regulatory changes. The factual record on charter schools as a whole demonstrates the opposite, that the regulations are not needed.
It is important to keep in mind that California’s AB 1505, as enacted, does few favors for charter schools and represents the worst instincts in education to protect declining enrollment school districts at the expense of children having access to better schools. We have seen firsthand that AB 1505’s directive for “community interests” to be considered as part of the analysis in authorizing new charter schools, and the expansion of existing charter schools, has solely meant “district interests,” as decided by district board members, not the community. It has not mattered that thousands of community members have signed petitions and shown up in support of new charter schools and expansions, and dwarfed opposing voices by a substantial factor. It has not mattered that charter petitioners have provided incredibly detailed analyses of how a charter school will serve a community in need, and those analyses have been unrebutted by facts or addressed only with speculation designed to support a foregone conclusion. “Community interests” have been repeatedly used by school boards to deny charter petitions and deny requests for expansion that communities have demanded.
Until “community interests” is used in our laws and regulations to actually recognize and respect the needs of families and students and is not code for protection of district enrollment (which has nothing to do with student interests in a good education), we must loudly call out this disingenuous co-opting of the term “community interests,” including in the draft regulations. Again, we urge you to submit a comment opposing the draft regulations by the April 13 deadline.
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Please contact Sarah J. Kollman at skollman@mycharterlaw.com or Lee J. Rosenberg at lrosenberg@mycharterlaw.com if you have any questions.