Disastrous, Deceptive & Dishonest – The Top 10 Reasons to Get Your Comments in Now on the Feds’ Attack on Charter Schools

Good morning, CharterFolk.

Such sad times in Sacramento. Sunday’s tragic shooting has over-shadowed the fact that the teacher strike has ended. There’s a lot to unpack here, but I’ll hold off until such time when it seems appropriate for Sacramentans to be focusing on anything other than the people who we’ve lost.

More broadly, I wanted to return to the topic I’ve decided to delay a planned spring break over: these truly terrible proposed new regulations that the Biden Administration is proposing for the federal Charter Schools Program.

In my Saturday Post, I said I would do what I could this week to encourage more comments from CharterFolk on the proposed regulations. I see that about thirty-five of you responded last week to my requests that you get comments in. Thanks to those of you who did. But CharterFolk, this really is a moment when many more of our voices need to be heard. Under the truncated process being used by the administration (clearly meant to minimize the amount of input received), comments are due by April 13. All comments are helpful, but the ones that have the highest potential for impact are customized ones that cite and focus on specific passages from the proposed regs. So I thought I would dedicate today’s post to providing support designed to make it easier for you all to submit comments that have the best chance of changing the outcome.

Below you will find my Top 10 reasons for submitting comments. Under each of the ten, you will see I present language from the proposed regulations. This should make it easier for you to cut and paste the language directly into your comments which you can then submit here or by clicking on the image below.

Later in the week, I will share with you some thoughts from Californians who are already living with a policy environment very similar to the one that the feds hope to make across the whole nation with their potentially disastrous new regulations. I hope their stories will provide additional motivation to you all to get your comments in and to encourage your friends to do the same. Ideally, we’ll see at least a couple hundred more comments come in from CharterFolk over the next eight days.

At least that’s what I’ll be shooting for.

Come on, CharterFolk! Get your comments in today!

Reason #10 – The Administration’s Attempts to Justify the Need for New Regulation are Deceptive.

Here is a quote from page 9 of the proposed regs:

“The original proponents of charter schools anticipated that charter schools would be shaped by educators and offer opportunities for developing and sharing new instructional methods and resources that address the needs of students and families in the community.  While that is the case in some charter schools, in others, teachers, parents, and community leaders have expressed concerns about not being included as active participants in charter school decision-making.3

The footnote in the quote refers to this article

… and that article says absolutely nothing about teachers, parents and community leaders expressing concern about being excluded from charter school decision-making. In fact, the word “charter” doesn’t appear in the body of the article at all, and all of the concerns cited in the study are ones describing problems happening in other public schools, not charter schools. The only time the word “charter” appears anywhere in the document is in a footnote, which is a citation to this article which demonstrates that charter schools are actually doing an exemplary job of engaging community stakeholders!

The deception is infuriating.

My recommendation?

Cut and paste the passage in pink above into the comment box, call the department out for attempting to deceive readers that there is some kind of problem with charter schools’ engagement of communities, and then tell your own personal story about how this is actually a strength area, not a weakness, for charter schools. And finish off your argument making the point that, thus, the entire provision should be removed from the proposed regulations.

Reason #9 – There is Even More Shoddy Research-Citation in the Proposed Regulations Trying To Present Charter Schools as Deficient in Community Engagement, Revealing a Pattern of Dishonesty that Should Lead to the Entire Body of Proposed Regulations Being Thrown Out

Here is a quote from page 10:

Similarly, 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 and can offer important contributions to help improve the academic, financial, and organizational or operational performance of the school.5

Again, if we go to the article that is footnoted

... we see that there is absolutely no language in the report about charters schools not engaging community members and organizations. In fact, the report says exactly the opposite, highlighting four charter school organizations that are doing a great job of engaging community in ways that traditional public schools are not. As such, the proposed regulation is not an attempt to force charter schools to address some kind of deficit area, but is in fact an attempt to punish the entire charter school movement for having pioneered breakthroughs in community engagement for public education. And the fact that the proposed regulations have two sources that are deceptively cited shows that there is a pattern of misrepresentation in the regulations that should lead any responsible policy maker to throw out the entire proposed set of new rules.

Again, cut and paste the deceptive language into your comment, call out the administration’s misrepresentation, and then share your own story about how charter schools are actually forging new trails in community engagement in public education. At bare minimum, this entire new requirement on pages 11-12 should be struck from the document:

Under this priority, an applicant must propose to open a new charter school, or replicate or expand a high quality charter school, that is developed and implemented– (1) With meaningful and ongoing engagement with current and former educators, including current and former teachers,, including in founding the school, board governance, school-level decision-making related to curriculum and instruction, and day-to-day operations of the school; and (2) Using a community-centered approach that includes an assessment of community assets, informs the development of the charter school, and includes the implementation of protocols and practices designed to ensure that the charter school will use and interact with community assets on an ongoing basis to create and maintain strong community ties. (b) In its application, an applicant must provide a high-quality plan that demonstrates how its proposed project would meet the requirements in paragraph (a) of this priority, accompanied by a timetable with milestones.

Reason #8 – Forcing Charter Schools to Get Signed Agreements from School Districts to Collaborate is Providing Those Districts a De Facto Moratorium over Charter School Growth

Here’s the offending language from page 14 …

Under the proposed priority, an applicant must propose to collaborate with at least one traditional public school or traditional school district in an activity that would be beneficial to all partners in the collaboration and lead to increased educational opportunities and improved student outcomes.

… and page 16.

In its application, an applicant must provide a letter from each partnering traditional public school or school district demonstrating a commitment to participate in the proposed charter-traditional collaboration. Within 45 days of receiving a grant award, the applicant must submit to the Department a written agreement (e.g., Memorandum of Understanding), signed by officials authorized to sign on behalf of the charter school and each partnering traditional public school or school district.

I hope, CharterFolk, the absurdity of this new proposed requirement is obvious to you. Just cut and paste one or both of the passages above into your comment and then share your stories about how you are always willing to share best practices and engage with school districts, but to require developers to get a signed collaboration agreement from school districts gives those districts a surefire way to block the opening of charter schools, thereby conferring upon school districts the authority to impose de facto local charter school moratoria in communities across the country.

Reason #7 The Justification the Regulations Offer for Creating New Requirements is Unsubstantiated and Unwarranted

Here’s the quote from page 20:

High-performing charter school authorizers generally require applicants for a charter (i.e., to create a charter school) to present data on the academic achievement, demographics, and enrollment and retention rates of students in all surrounding public schools. These data help with assessing the extent to which the proposed charter school will meet the needs of, and enroll students that are representative of, the students in the community. Consistent with this part of the charter application process, we propose to require applicants for CMO Grants, Developer Grants, and subgrants under the SE Grant program to conduct a community impact analysis to inform the need, number, and types of charter schools to be created in a given community.

The first sentence of this statement is completely unsubstantiated. Who do the document’s authors consider to be “high performing authorizers?” What exactly do they assert those authorizers are supposedly “generally requiring”? And do such authorizers really require enrollment and retention rate analyses for all surrounding schools? (What even is an “enrollment rate” anyway?)

This is the proposed regulations’ first mentioning of a “community impact analysis.” Given the degree to which the establishment of a new requirement for developers to create “community impact analyses” is central to the administration’s strategy to stop charter school growth, you would think that, if the administration was going to argue that some pre-existing authorizing practice has become a norm that their massive new burden can be based upon, they would at least have been more thorough in substantiating that the norm is actually already in wide use.

Even if we accept that strong authorizers are already requiring petitioners to present some kind of analysis of area schools, the scope of “community impact analysis” requirement contained in the proposed regulations is nothing even remotely similar to what charter schools are currently being asked to do by authorizers across the country. The administration has taken a small and minimally-burdensome practice that may be being used by some authorizers and has blown it into a gargantuan new mandate requiring all petitioners to invest hundreds of additional staff hours every time they want to develop a new charter.

I would cut and past the language above into your comment and then share what your experience has been, if any, of having to submit information about area schools in your charters to date, and then I would contrast that against the behemoth new requirements that are presented on pages 20 through 30 of the document.

Reason #6 – The Community Impact Analysis Forces Charter Schools to Address Matters that Are Completely Outside the Law

This is a key one, CharterFolk. I quote below from page 26.

Each applicant must provide a community impact analysis that demonstrates that there is sufficient demand for the proposed project and that the proposed project would serve the interests and meet the needs of students and families in the community or communities from which students are, or will be, drawn to attend the charter school, and that includes the following: (a) Descriptions of the community support and unmet demand for the charter school, including any over enrollment of existing public schools or other information that demonstrates demand for the charter school, such as evidence of demand for specialized instructional approaches

What we are trying to do here is lay the groundwork for future litigation arguing that the secretary has engaged in rule-making beyond his discretion. What the language above does is to create a new condition that charter school growth should only occur in places where existing schools are over-enrolled. Nowhere in the CSP law do we find any language similar to what the administration is presenting today.

In addition, the language attempts to make charter schools responsible not just for ensuring that they will serve their own students well, but that they will meet the needs of all students and families in a community, an unreasonable level of responsibility that no public school has ever been expected to achieve, and certainly one that has never been included in the CSP previously.

The more comments we can submit telegraphing our collective awareness that the administration is acting beyond its purview and is opening itself up for possible litigation, the more constructive pressure we put on the feds to be more reasonable now.

Reason # 5 – The Regulations Create a Standard for Permissible Growth that Would Have Resulted in Virtually No Charter School Growth Had it Been the Standard Since the Inception of the CSP

From page 27:

Evidence that demonstrates that the number of charter schools proposed to be opened, replicated, or expanded under the grant does not exceed the number of public schools needed to accommodate the demand in the community, including projected enrollment for the charter schools based on analysis of community needs and unmet demand and any supporting documents for the methodology and calculations used to determine the number of schools proposed to be opened, replicated, or expanded.

Never before have we seen proposed regulation calling for new charter school growth to be limited to only those locations where the aggregate number of public schools’ capacity to serve students would not exceed the number of students in the community. It’s a standard for permissible growth that, had it been enforced since the beginning of the charter school movement, would have resulted in no new schools ever opening. I would paste the above language into your comment and then share how your students, especially those who have historically been most underserved, have benefitted from charter schools being empowered to bring new options into a wide range of communities, not just those where there are more students than they are schools with capacity to serve them.

Reason # 4 – The Regulations Purport to Present the Public School System as Actively Attempting to Achieve Desegregation When in Actuality Its Entire Design Has Called for the Perpetuation of Racial and Socio-Economic Segregation Through the Use of Attendance Boundaries and Selective Admissions that Charter Schools Do Not Make Use Of

From page 20:

A description of the steps the applicant has taken or will take to ensure that the proposed charter school would not hamper, delay, or in any manner negatively affect any desegregation efforts in the public school districts from which students are, or would be, drawn to attend the charter school, including efforts to comply with a court order, statutory obligation, or voluntary efforts.

I know a lot of people in our world are really sobered by this language. I too can see the strategy they’re using here, and I can imagine it causing challenges for us in various settings. But my recommendation for people submitting comments on this language would be the same that I suggest to our movement more broadly on matters of educational redlines:

Come out swinging!

It’s just too rich that a public education establishment that has consciously chosen for generations to create educational redlines across our entire country would then attempt to present the only category of public school that doesn’t create such redlines to be in some way an impediment to desegregation efforts. I would cut and paste the language above into your comment and then I would go on the offensive, listing all of the attendance boundaries and selective admissions criteria you know of that contribute to a perpetuation of educational redlining in your local community and you would suggest that until such time that the public school system has been able to rid itself of these societal menaces, charter schools should be encouraged to grow with all possible speed.

Reason # 3 – The Regulations Transparently State that the Administration Believes that Only Large Organizations are Able to Successfully Expand

From page 64:

We believe that the benefits of this regulatory action outweigh any associated costs, which we believe would generally be minimal. While this action would impose cost bearing application requirements on participating SE Grant, Developer Grant, and CMO Grant applicants and on SE subgrant applicants, we expect that applicants would include requests for funds to cover such costs in their proposed project budgets. We believe this regulatory action would strengthen accountability for the use of Federal funds by helping to ensure that CSP grants and subgrants are awarded to the entities that are most capable of expanding the number of high-quality charter schools available to our Nation’s students.

I hope, CharterFolk, you have a field day with this one. Here we see the administration state that the new regulations will impose costs on organizations such that only the “most capable” will be able to manage the burden of applying, thereby ensuring that only the organizations that the administration believes most likely to succeed (i.e. larger, more established, and less diversely led) will be funded. This is quite a duplicitous claim to be coming from an administration that supposedly wants to see more educators of color taking leadership in the future of public education.

Just cut, paste, and let them have it, CharterFolk.

Reason # 2 – The Nonsense of the Argument that The New Regulations Will Not Dissuade Petitioners From Applying.

Here is the quote from page 70:

Participation in the CSP is voluntary. For this reason, the proposed priorities, requirements, definitions, and selection criteria would impose no burden on small entities unless they applied for funding under the program. We expect that in determining whether to apply for CSP funds, an eligible entity would evaluate the requirements of preparing an application and any associated costs and weigh them against the benefits likely to be achieved by receiving CSP grant. An eligible entity will probably apply only if it determines that the likely benefits exceed the costs of preparing an application.

This statement is problematic for multiple reasons. First, the administration knows darn well that, in advancing these new rules, they will not just be imposing new burden on petitioners voluntarily choosing to apply for a CSP grant, but they will be making new policy that will find application and manifestation across myriad state laws and regulations and other rules that will be anything but voluntary for thousands of charter schools. Secondly, the administration is being transparent about the fact that it is seeking to make a level of new application burden that will dissuade many charter school organizations from applying. And knowing that CSP funding has been a vital source of funding allowing thousands of charter schools to grow, the administration is being transparent about its effort to dissuade charter schools from applying being an effort to limit charter school growth generally.

This is antithetical to what the CSP has been all about for decades. The implementation of the CSP is supposed to encourage the opening of new charter schools, not stifle it. To the extent that the CSP program has ever helped your organization grow to serve more students, especially students who have been historically underserved, now is your moment to call the administration out.

Reason # 1 – The Proposed Regulations Contain Language Showing that the Administration is Consciously Seeking to Dissuade Potential Petitioners from Applying By Threatening Adverse Fiscal Impact That Will Damage Applicants’ Ability To Continue Serving Their Existing Students Well

From page 71:

This proposed regulatory action would not have a significant economic impact on a small entity once it receives a grant because it would be able to meet the costs of compliance using the funds provided under this program. We invite comments from small entities as to whether they believe this proposed regulatory action would have a significant economic impact on them and, if so, request evidence to support that belief.

This is just beyond the pale. The administration actually has the gaul to say that a small organization (from my standpoint any organization) would not experience a negative fiscal impact once it has received a grant because it can use grant dollars to reimburse itself for the cost of applying. But, of course, looked at from the vantage point of an organization that has not yet decided whether to apply, any sane organization large or small would conclude that the administration made these new rules because they want to severely limit the number of schools being awarded CSP funding. So all potential applicants will see that their likelihood of being funded is now much lower and they will see that the cost of making an application has become much higher. With that being the case, the new requirements are sure to create a chilling effect on any developers making applications for CSP grants.

I would suggest cutting and pasting the language above into your comment and then being plain about whether your organization would be likely to make a costly application knowing that the likely adverse impact on your organization’s finances will ultimately harm your ability to serve your existing students well. And while I wouldn’t suggest that you literally use the words “shame on you,” I would let the administration know what you think of such a cynical effort to create a new regulatory burden so high that it forces organizations to forsake attempting to offer better educational opportunity to future students so that they may avoid incurring any adverse impact on the students they already serve.

Community impact indeed!

So those are my Top 10, CharterFolk. I hope they spark some urgency and some creativity in you. And for those of you who have better ideas about other sections of the proposed regulations that deserve pushback, please send them to me, and I’ll find an opportunity to share them with the broader community.

I know this is a slightly heavier lift. Filing a comment is probably a 10-15 minute exercise, at minimum, and much longer if you really want to go into an issue at depth. But it would be time well spent. And it is a task that CharterFolk in particular are well suited to take on. So please get your comments in today!