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Court’s Ruling Charter Schools Aren’t “Public” Is No Surprise

The recent ruling by the supreme court of Washington state that charter schools are unconstitutional because they aren’t really public schools has sent advocates for these schools into a fit. But their often over-the-top criticisms of the decision are reflective of what is most often misunderstood about the charter school sector and what that industry has come to represent in the political debate about public schools.

First, about the ruling: As Emma Brown of The Washington Post reports, “Washington state’s Supreme Court has become the first in the nation to decide that taxpayer-funded charter schools are unconstitutional, reasoning that charters are not truly public schools because they aren’t governed by elected boards and therefore not accountable to voters.”

Brown explains how voters in the state previously rejected charter schools on two ballot initiatives only to see an initiative pass on the third attempt, in 2012, when a who’s who of billionaires – including Bill Gates and members of the Walton (Walmart) and Bezos (Amazon) families – donated millions of dollars to ensure passage. Today, there are nine charter schools in Washington serving about 1,200 students.

The court’s 6-to-3 ruling, Brown explains, relies “on a century-old precedent that defined ‘common schools,’ or public schools, as those that are ‘common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district.’”

The Washington court’s ruling certainly didn’t catch education historian Diane Ravitch by surprise. On her personal blog, she points to a letter from Parents Across America, a parent-led advocacy group supporting locally operated public schools, that explained to the state superintendent, over two years ago, “Charter schools would not meet the definition of ‘common schools'” in the state constitution.

Nevertheless, charter school advocates seethed.

Early out of the gate to object to the ruling was the editorial board of The Wall Street Journal whose headline blared, ” The Judges Who Stole School Choice.” The editors opprobrium continued, “The liberal majority’s real concern is preserving the union monopoly … Charter schools are public schools too.”

At the blog site of the right wing Thomas B. Fordham Institute, the director the University of Washington’s Center on Reinventing Public Education called the ruling a “decision only the Kremlin could love.”

But anyone with a clear understanding of the issues – rather than a charter school advocacy job bankrolled by billionaires – could see this ruling coming from a mile away.

Why Charter Schools Aren’t Really “Public” Schools

As the Post’s Brown reported, the Washington’s court’s ruling “highlights a question that has spurred much debate in education circles as charter schools – which are funded with taxpayer dollars, but run by independent organizations – have expanded rapidly during the past two decades: What makes a public school public?”

To critics of the charter school sector, the very idea of calling charter schools “public” schools makes about as much sense as calling defense contractors “public” companies. The fact these entities get taxpayer money does not mean they are “public.”

For years, education law and finance scholars have warned that the legal status of charter schools is on shaky ground. In 2012, Rutgers University professor Bruce Baker asked, on his personal blog, “Charter Schools Are… [Public? Private? Neither? Both?].”

Baker notes, first, that charter schools differ from public schools, in most statutory law, because they are limited public access. Unlike public schools, charter schools “can define the number of enrollment slots they wish to make available … admit students only on an annual basis and do not have to take students mid-year, [and] set academic, behavior and cultural standards that promote exclusion of students.”

These points of difference between charter and public schools are glaringly obvious in the neighborhoods where charters are common. Those who protest charter school expansions in their communities note how charter schools use lotteries to limit the number of students in their schools while public schools are frequently overcrowded. Charter schools are often criticized for not “back filling” and taking in new students mid-year as empty seats become available. And charter schools are notorious for enforcing student behavior codes that lead to frequent discipline violations and increase suspension and expulsion rates.

Baker found that in their authorization, governance, and operation, charter schools are frequently exempted from requirements public schools have, such as open meeting laws, disclosure of financial records, and employee rights.

In January 2015, Baker collaborated with two other scholars to publish a review, the “Legal Status of Charter Schools in State Statutory Law” in the University of Massachusetts Law Review which found that in most states the legal distinctions between charter schools and public schools are not at all clear due primarily to how legislation providing for charters is often drafted without including any “clear set of rules to follow” for governing the schools – a provision, by the way, the charter lobby often insists on.

The analysis examined whether charter schools, which are generally run by private boards or educational management organizations, are entitled to governmental immunity and whether they are subject to public accountability laws. The scholars examined whether charter schools are subject to the same wage statutes and student expulsion requirements as public school.

Their conclusion was, “While charter schools are generally characterized as ‘public schools,’ courts have had a difficult time determining their legal status because charter schools contain both public and private characteristics.”

Education research experts at the National Education Policy Center also looked at the issue of whether charter schools are public or private and concluded, “Their operations are basically private.”

The NEPC analysis found that because most charter school board operate on “an advisory role,” they outsource their school’s operations to private education management organizations (EMOs).

“It is common practice,” NEPC noted, “for EMOs to write charter school proposals and determine how the school will be managed and operated long before a board is appointed. It is also common practice for the private EMO to provide a list of names for board members, which the authorizer then approves. In recent years, board members have been refused access to information about how money is being spent. Further, there are cases where EMOs have asked the authorizer to remove board members when they start asking uncomfortable questions about finance.”

A False Frame For “Accountability”

For years, charter school advocates have insisted on calling their schools “public” mostly because it is an effective rhetorical frame – and because it is a rationale for why they de facto deserve tax money, government grants, and favorable lending rates.

“Charters are public schools, despite propaganda from unions and their supporters suggesting otherwise,” political analyst Jonathan Alter wrote recently for The Daily Beast. His op-ed, “Why Liberals Should Learn to Love Charter Schools,” focused mostly on propping up the charter industry’s campaign to make the all-charter New Orleans school system a model for troubled urban school districts elsewhere.

This campaign makes the claim charter schools are the truest form of “accountability” because they are “freed from the bureaucracy” of elected school boards and other forms democratic control – a truly bizarre contention in line with believing car drivers would be more “accountable” if we freed them of speed limits and other driving “constraints.” Further, the supposed greater accountability of charter schools is contradicted every time one of these closes unexpectedly, whenever they want to, as they so often do.

Responding to Alter’s argument, public school teacher and popular blogger Peter Greene writes, “Charter schools will be accountable when they are just as transparent and just as accountable as public schools … Financial records completely open to the public … all meetings of governing bodies completely open to the public, and run by people who must answer to the public and whose first responsibility is not to the nominal owners of the school, but to the actual owners of the school – the people who pay the bills and fund the charter – the taxpayers.”

A Movement Gone Totally Awry

Charter school advocates would do their cause a big favor if they were to define their schools to the public as exactly what they are and what the mission of their schools’ really is.

Indeed, the rhetoric driving charter school advocacy has changed dramatically over the years as proponents of charter schools condition public perceptions to accept the expansion of these schools.

That evolution has been documented extensively in the recently published book “A Smarter Charter: Finding What Works for Charter Schools and Public Education,” by Richard D. Kahlenberg and Halley Potter.

The original vision of charter schools, the book contends, was to provide “laboratory schools” to “experiment” with different approaches that could eventually be considered for adopting on a much larger scale. Two foundational tenets to these experimental schools, the authors maintain, were for teachers to have a stronger voice in determining the management of the school and for the student body to have higher degrees of economic and racial diversity than traditional public schools.

However, as states began enacting legislation to create and spread charter schools – beginning with Minnesota in 1991, then ramping up significantly under the presidential administration of Bill Clinton – there was a “more conservative vision” repeated again and again that reinforced charter schools as “competitors” to the public school system – even to the extent of replacing public schools, some argued.

“The public policy rhetoric changed from an emphasis on how charters could best serve as laboratory partners to public schools to whether charters as a group are ‘better’ or ‘worse,’” the book argues. And “over time, the market metaphor came to replace the laboratory metaphor.”

The authors conclude, “The current thrust of the charter school sector … is bad for kids.” They recommend “changes to federal, state, and local policy” and a greater degree of “neighborhood partnerships” among charters, public schools, foundations and universities if these schools are to “be a powerful vision for educational innovation in a new century.”

Those policy changes need to be accompanied by a completely different rhetoric for defining exactly what charter schools are and what purpose they have in the country’s education system. Operating under the mask of being purely “public,” charter schools haven’t faced the scrutiny they warrant. Now that the Washington Supreme Court ruling has stripped the mask away, charter school advocates are left grappling with the responsibility of redefining their cause. And it’s their own damn fault.

  • Joe Nathan says:

    There are many institutions that are part of public education that are not controlled by local school boards, other than charters.
    * Many states have free public schools serving students who are blind or hard of hearing that are not controlled by local elected boards
    * Several states have free public schools open to students who are especially gifted in the arts, science or math
    * Washington State itself has a publicly funded “Running Start” program, similar to Minnesota’s Post Secondary Enrollment Options law, that allows 11th and 12th graders to attend colleges or universities, full or part time. These colleges and universities are not controlled by local school boards. In Minnesota these courses are entirely free to students. In Washington they are free to students from low income families.
    * Neither New York nor Chicago Public Schools are controlled by local boards

    There is a good deal of public education that is not controlled by local boards.

    September 10, 2015 at 4:01 pm
    • Jeff Bryant says:

      True, yet I doubt the entities you name are written into legal statutes, in the way charter schools have been, that exempt them from restrictions that other institutions receiving public funds are normally held to. Have any of these contractors you name ever insisted, for instance, on being exempt from open meetings laws and financial review as charter schools have? A public school system contracting with a private company to, for instance, obtain textbooks or have their landscape maintained is not the same thing as a private company managing the entirety of a school enterprise without oversight of the public.

      September 10, 2015 at 4:23 pm
    • Fran says:

      Local boards should be in place for all ‘public’ schools. Lack of access to education will only contribute to segregation of all types; religious, ethnic, class/the haves and have-nots. If parents wish to have a different sort of education more to their biases they should be willing to pay for it out their own pocket. They should not demand taxpayer money to support their radical religious or political biases. I recently was approached – rather accosted – by several high school age young boys at a public event. They questioned whether I knew if I was ‘saved’ – did I profess that god was my ‘Lord and Saviour’. I found their boldness and arrogance disturbing when they then segued into ‘gun rights’, hateful welfare lazy people etc.. I took a step back and asked if they were ‘home schooled’. They said “Yeah, sure, how did you know?” These home-schooled children are being propagandized by a lot of radical parents out there at the taxpayers cost. I and many other folks find this trend very disturbing. It is not only with ‘home-radicalized’ children but with many ‘religious schools’ as well. Parents and local officials need to pay attention to this serious trend.

      September 10, 2015 at 4:29 pm
    • Robert D. Skeels * rdsathene says:

      Charter industry profiteer Joe Nathan’s mealymouthed response above is indicative of his always trying to sound like an expert on legal issues, when in fact he is a lay person, not an attorney. As a second year law student with two decades of studying the privately managed charter issue, I’d like to share the following brief commentary:

      Generally, there is no such thing as a “public” charter school. Both existing case law and public policy have long established the logic for the Washington State Supreme Court holding. The California Court of Appeals (2007-01-10) ruled that charter schools are NOT “public agents.” The 9th Circuit US Court of Appeals (2010-01-04) ruled that charter schools are NOT “public actors.” The National Labor Relations Board joins a host of other government agencies that have unequivocally ruled that that charters are “private entities.”

      By definition whether a charter is run by a for-profit firm, or a (501c3) non-profit, then it is not public. The United States Census Bureau frames this issue best: “A few “public charter schools” are run by public universities and municipalities. However, most charter schools are run by private nonprofit organizations and are therefore classified as private.” (US Census Bureau. (2011). Public Education Finances: 2009 (GO9-ASPEF). Washington, DC: US Government Printing O ce. Print. vi).

      Because these lucrative charter schools are not public, and are not subject to public oversight, they are able to get away with violating the constitutional rights of their students. The decision in Scott B. v. Board of Trustees of Orange County High School of the Arts saw Rosa K. Hirji, Esq. write: “The structures that allow charter schools to exist are marked by the absence of protections that are traditionally guaranteed by public education, protections that only become apparent and necessary when families and students begin to face a denial of what they were initially promised to be their right.” It’s time that we shut down the profitable charter school industry and divert our attentions to improving our public schools.

      September 10, 2015 at 7:49 pm
  • oaklawnmark says:

    Those of us who despise charter schools as the frauds they truly are should enjoy the moment, since it won’t last long. Once this decision is appealed and makes its way to the Bush High Court, John Roberts and his conservative brethren will contort themselves every which way possible to reverse this decision.

    September 10, 2015 at 4:28 pm
  • Lou Mathews says:

    Distillation: Who best guards hen houses – Chicken farmers or foxes?

    September 10, 2015 at 4:43 pm
  • Andrea Lancer says:

    The Reform Law that gave control of the Chicago Public Schools to the Mayor created the :Local School Council which consists of parents, community members and teachers and controls budget decisions and hires and fires the principal. Charter schools in Chicago are not governed by any such parent or community input. Lately, however, some of the teachers in the charter chains have voted to unionize.

    September 10, 2015 at 6:13 pm
  • Doug Giebel says:

    The diversion from spending wisely to improve the nation’s public schools in order to cheerlead for profit-motivated charter schools will continue as the power of big money rules the political landscape. The absurd notions that punishing “failing” schools, punishing teachers whose students don’t meet corporate-designed testing standards, or propagandizing that simply having “better schools” will solve our educational problems — all are attempts to take attention away from the many complex reasons troubled schools exist. We don’t need more well-financed studies, because the issues have been studied again and again. If every student is a precious being, then every student needs to enter the learning field on equal footing. Reaching such a goal requires so much more than testing, elected or appointed boards, well-trained teachers, enlightened administrators. As with other examples where those most in need are ignored, given scant attention or even punished for their existence, our public education situation will continue to suffer as misguided, avaricious power calls the tune and rings the classroom bell.
    Doug Giebel, Big Sandy, MT

    September 10, 2015 at 6:44 pm
  • Thomas Johnston says:

    The rubber meets the road when so called “public” charter schools fold. They disappear, in effect stealing the public money & the public trust and the public is left holding the bag. Charter schools have become a stealth move for private profit, often disappearing in the dark of night. The stark reality: the truly public schools are responsible, the charter schools are not.

    September 10, 2015 at 7:30 pm
  • Scott A. Weir says:

    Bigger picture here — maybe TOO big.

    What is happening in schools is what is happening in every sector of the neocon/neolib world, which is neither new nor conservative nor liberal. It is merely the current manifestation of the ancient tyranny of the feudal aristocracy, the kings and the priests and some lesser warlords.

    Today it is the corporate officers who carry water for the financiers, the true oligarchs, the ones who actually own the lion’s share and then some of what can be bought for money. “Capital [meaning money, contrary to the definition in every economics textbook] must find an outlet.” An episode of This American Life titled “The Giant Pool of Money” provided good insights into how vast amounts of money demanding ways to procreate helped to create the Crash of 2008.

    And of course real education and understanding threatens tyrannical structures, just as it did 200-300 years ago.

    Education — learning how to think coherently — was never the purpose of charter schools, but indoctrination in a debased form of magic. It is beginning to appear as if money has won this battle, despite the Washington decision, although one can never be certain. It would probably be wise for those of us entitled to a modest pension to use our knowledge and experience to pass along that knowledge outside the walls of the academy. I think there is plenty of demand — indeed, real hunger — for real learning at all levels, at least up through the level of the community colleges where I teach.

    Even in the realm of the applied sciences that are my actual background there are plenty of applications of science and technology that can be applied at very low cost. Such applications will surely be in demand in the years ahead, and there are already groups of people doing it.

    September 11, 2015 at 2:20 am
  • jimmy midnight says:

    Well, Jeff, I might have to quibble a bit with your “unsurprising” take on the court decision, in view of Citizens United, etc, but, as we doubtless agree. the court in question did get it right.

    September 12, 2015 at 10:39 pm
  • Daun Kauffman says:

    Somebody somewhere must be responsible for actually fixing problems in public schools.

    Somebody somewhere must be Accountable to public school children and their families
    (not just find ways to get the children and their families’ public schools out of sight, and “off the books” as charters).

    The rush to charters without solving basic pedagogy issues first is just kicking the can further down the road. Let’s actually deal with issues in public schools before passing the buck.

    Just one of those (central) issues to be solved is linked here, in honor of Washington State Supreme Court :

    September 14, 2015 at 1:26 pm
  • Anne T. says:

    My child is at a non-profit, single-entity K-12 charter school. She attended a district magnet school for K-5. We both loved her elementary school. It was really amazing. The district promised it would be a K-8, but then reneged on the promise. So I had to find another school. The middle school across the street from us is considered a good one. It has 35-45 students per classroom. The total student population is approximately 1,200. The charter school has 22 students per classroom in middle school with a total of under 50 per grade. My daughter has learning disabilities and is gifted. The school is focused on twice-exceptional students. She is getting the kind of education that I wished she could get at a “public” (aka district) school. I looked long and hard to find the appropriate school and this charter was the only one to offer what she needed.

    I agree with everything people have written about for-profit charter schools. Secondary education should never be a profit-making institution — EVER! But why should I put my daughter at a “public” school where she won’t get the type of education she needs just because it’s public?

    Her charter school has a governing board made up entirely of the students’ parents. All meetings are open to the public — not just parents. All rules, policies, budgets and financial statements are publicly posted on the school website. One year, the teachers were unhappy with the Principal of the school and her management. They were able to advocate for her resignation. We have to answer to the district’s school board.

    So when each of you lumps all charter schools into “they’re all bad and should die” or “they’re all good and deserve public money,” or blame corporations or unions for everything, you’re missing the point entirely. There are “good” and “bad” public and charter schools. I agree with Linda Darling-Hammond when she talks about the basic structure of public education is based on an industrial revolution model when we’re in the information age.

    If we could stop and look at the solutions each neighborhood needed, then we’d be on the right track. There was a district superintendent in Colorado that participated in a laboratory group with Darling-Hammond. His small district was in the middle of a very low income, high ESL population. The schools were all performing abysmally. So he scrapped all of them and went to the teachers, students, administrators, parents and community members to find out what they wanted in their schools. He turned every school into a magnet school. Parent participation went up. Grades and test scores went up. Graduation rates went way up.

    Instead of focusing on blame, why not focus on solution?

    September 15, 2015 at 8:10 pm

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