JULIA MARTIN, ESQ. [email protected] BRETTE KAPLAN, ESQ. [email protected] STEVEN SPILLAN, ESQ. [email protected] BRUSTEIN & MANASEVIT, PLLC

JULIA MARTIN, [email protected] KAPLAN, ESQ.

[email protected] SPILLAN, ESQ.

[email protected] BRUSTEIN & MANASEVIT, PLLC

WWW.BRUMAN.COMSPRING FORUM 2013

1

A Look at the Charter School

Landscape

Brustein & Manasevit, PLLC

Agenda2

Spotlight on Charter SchoolsCharter Schools 101National TrendsRecent LegislationEquity IssuesESEA FlexibilityCivil Rights Charter School Program


Spotlight on Charter Schools3

Charter schools gained prominence during the Bush Administration, following passage of the No Child Left Behind Act

Obama Administration continues to support public charter schools

Conservatives see charters as an avenue for “school choice”

Congress is poised to increase the attention and spotlight on charter schools


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Charter Schools 101


What is a Charter School?5

Independent public school designed and operated by parents, educators, community leaders, education entrepreneurs and others.

Operates under a contract, or charter, from a public agency, such as a local or state education agency, an institution of higher education or a municipality.

Must meet standards set forth in their charters for students and for the school as a whole, or else the chartering agency can close the school.

Source: https://www2.ed.gov/nclb/choice/charter/charter-faq.htmlBrustein & Manasevit, PLLC


Nonsectarian, publicly funded school of choice exempt from certain State and local regulations.

In return for reduced governmental regulation, charter schools agree in charter to be held accountable for academic and financial performance.

May operate as its own LEA, or as part of another LEA

Source: The Office of Innovation and Improvement’s Oversight and Monitoring of the Charter Schools Program’s Planning and Implementation Grants, ED/OIG Final Audit Report (September 2012)



According to ESEA, Section 5210(1), a charter school is a public school that is: Per State CS authorizing laws, exempt from

significant State or local rules inhibiting flexible operation & management of public schools;

Created or adapted by developer, & operated under public supervision & direction;

Operates to pursue specific educational objectives determined by school’s developer & agreed to by authorized public charter agency;

Provides elementary or secondary education, or both;



ESEA, Section 5210(1) -- (continued) Complies with civil rights laws (ADA, Title VI, Title

IX, Section 504, IDEA); Complies with Federal and State audit requirements; Complies with Federal, State, and local health and

safety requirements; Operates according to State law; Has written performance contract with authorized

public charter agency describing how student performance will be measured for State assessments required by other schools and assessments mutually agreeable to authorizer and charter school;


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ESEA, Section 5210(1) -- (continued) Nonsectarian in all operations (programs,

admissions, employment, etc.); Not affiliated with sectarian school or religious

institution; Does not charge tuition; School parents choose to send child to or admits

students based on lottery when necessary.

What is a Charter School?


Charter School Authorizers10

State charter school laws assign authorizers National Association of Charter School

Authorizers identified 6 types of authorizers:1. IHEs2. Independent chartering boards3. LEAs4. Mayors/Municipalities5. Not-for-profit organizations6. SEAs

Authorizers: Approve charter applications Oversee and ensure compliance Review and renew contracts Close charter schools


Charter School Authorizers11

After approving application, authorizer drafts charter contract outlining: Time period of CS contract; Requirements for governing board & bylaws; Exemptions to traditional school legal obligations; Performance goals; Number of schools allowed under charter; Fiscal goals; and Reporting requirements

Authorizers responsible for monitoring school progress and compliance


Charter Schools are Autonomous12

Despite detailed contracts, charter schools usually have more freedom and flexibility than traditional public schools

Charter schools can: Extend school day/week Extend school year Increase instructional time in a particular subject Make independent staffing decisions Try a new curriculum Try a new instructional method Pay for performance Offer extensive tutoring Etc.


Charter Schools & Public Funds13

How are public charter schools funded? Money follows student If a student transfers from a traditional public school

to a public charter school, the funding associated with that student follows him or her to the public charter school


Charter Schools & Accountability14

Are charter schools accountable for state educational standards? YES!

Required to meet all Federal and State education standards

Charter documents and chartering contracts establish student achievement goals that must be met

Accountable to supervising entity (LEA or SEA)


Charter Schools & Financial Accountability

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How are charter schools held financially accountable? Funded with public dollars Audits

If applicable, conduct single audit Single Audit Act: expend $500K or more per

year in Federal funds Ongoing reviews from authorizing entities


National Trends in Charter Schools

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State Charter School Laws17

Minnesota passed first charter school law in 1992.

As of November 2012, 42 States and DC have laws specifically authorizing and governing charter schools

Two States made changes to charter school law in November 2012 elections: WA approved charters for the first time GA changed state constitution to clarify availability of

charters

8 States don’t have charter school laws AL, KY, MT, NE, ND, SD, VT, WV


State Charter School Laws: Differences

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Charter school laws differ greatly from State to State

Common differences:1. The types of charter schools that can operate in the

State;2. The limit, if any, on the number of charter schools that

can operate in the State;3. The type & number of authorizing entities in the State;4. The level of legal autonomy & requirements charter

schools are exempt from; and5. The level of fiscal autonomy & funding a charter school

receives


Increasing Numbers

Overall, huge growth in number of charters and number of charter students in recent years

In 2009-10: More than 1.6 million students

In 2011: More than 5000 charter schools nationwide Serving 2.3 million students (about 3% of total) There are 100 cities where charters serve 10% of students or more (25 cities where it’s

>20%)

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Measuring Charter Growth20

Development of charter schools began in 1990s to provide expanded educational options within the public school system

Since 2007-08: 1,700 new public charter schools (almost 50% increase) Serving additional 1 million students (80% increase)

From 2011-12 to 2012-13, an estimated additional 200,000 to 275,000 students attending public charter schools

In 2012-13 school year alone, over 500 new public charter schools

Source: National Alliance for Public Charter Schools, Dashboard Data from 2012-2013, http://www.publiccharters.org/publication/?id=929


By the Numbers21

Students enrolled in charter schools nationwide: 63% = Students of color 52% = Eligible for free or reduced-price lunch 16.5% = LEP 11.9% = Have IEP

Charter school geography: 54% in large cities 22% in suburban communities 9% in towns 15% in rural areas

Source: National Alliance for Public Charter Schools, March 2013 Brustein & Manasevit, PLLC

Push to Remove Caps

Currently, 25 States (including DC) have caps on the number of charter schools

Different types of caps: Number of schools chartered/number of active

charters Number of students in charter schools Limits to annual growth in number of schools or % of

students in chartersWhy remove caps?

Allows growth of good models, competition in charter “market”

BUT caps incentivize closure of unsuccessful models/problem schools

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Push for More Authorizers

According to 2011 survey by National Association of Charter School Authorizers: 1000 chartering authorities nationwide 850 are LEAs

LEAs authorize 52% of charters

Why more authorizers? More charters Process moves more quickly Less bias?

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Increase in State/Local Voucher Programs

Basic idea: “funding portability”In 2011, 15 States had some kind

of voucher/tax credit program 42 more were considering legislation

Some cities have similar programs E.g., Los Angeles, Rochester, Newark,

Boston

Support from members of Congress

Specifics of programs – and degree of “portability” varies

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National Trends: Parent Trigger Laws25

Generally, parent trigger laws allow parents to petition to transform a failing public school Transformations can include conversion to a charter Requests not always granted Most States require that school is first designated as

low-performing for two to three years

Proponents say triggers give parents a voiceCritics say:

Triggers work to privatize and corporatize public schools (charters can be run by for-profit corporations)

Can allow schools to circumvent union protections for teachers


National Trends: Parent Trigger Laws26

20 States have or are currently considering parent trigger bills First parent trigger law: CA, passed 2010 Existing parent trigger laws in: LA, MS, CT, TX, IN,

OH, CA

CA, IN, TX considering revisions to trigger laws

CA is only State where parent trigger petition has been used (twice) Both requests blocked by legal challenges


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Recent Legislation


Democrats and Charters

Seen as an option in healthy school ecosystem

Generally supportiveBUT not a solution for all

students

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Republicans and Charters

Charters as part of “school choice” system “Market”-based approach to e Charters as viable option that drive competition

for other schools

Money should follow the child Romney: “linked to the student” Cantor (R-VA): funding portability

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Empowering Parents through Quality Charter Schools Act

H.R. 2218 (112th Congress)Sponsored by Rep. Duncan Hunter (R-

CA)Goal is to “streamline and modernize”

the Charter School ProgramCurrent program “outdated” and “not

meeting the needs of the charter school community”

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Consolidates existing funds into State grant program With additional flexibility on State level to

support new startups and expansion/replication of successful models

States must describe how they will include ELLs, students with disabilities

Expands current Charter School Program grant period from 3 years to 5 years

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Gives priority in funding to States that: Repeal charter school caps Allow other entities to be charter authorizers

(not just SEA/State board) Provide charter financing comparable to

traditional public schools Support “full-blended” or “hybrid-online”

models Are using charter transformation as a form of

intervention for low-performing schools

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Consolidates Credit Enhancement Grant and Facilities Incentive Grant into CSP, with the option for the Secretary to award funds for facilities

Option for Secretary to provide funding directly to individual charters In States that don’t get CSP grants

Support TA, dissemination of best practices

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Support Passed House Committee 6/22/11

Bipartisan support (34-5) including George Miller (D-CA) and Jared Polis (D-CO)

Passed House of Representatives 9/13/11 Bipartisan support (365-54)

Included in text of Harkin ESEA bill (marked up October 2011)

Introduced as stand-alone in Senate 9/15/11

Future This legislation or something similar is likely to pass

in next large education bill

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Race to the Top Act of 201335

H.R. 426Sponsored by Rep. Jared Polis (D-CO)Designed to boost “comprehensive reforms”

and “innovative strategies”Would create a competitive grant program

for applicants that agree to implement one or more specific innovations, including “creating or maintaining successful conditions for high-performing charter schools”


21st Century Charter School Act36

S. 88Sponsored by Sen. David Vitter (R-LA)Would amend ESEA Charter School ProgramWould makes public & private nonprofit entities

eligible for grants (currently only SEAs)Would allow grantees to award subgrants to

developers or charter support organizationsPrioritizes applicants in States with no cap, high

degree of charter autonomyCreates 2 new grants for:

Charters and operators to disseminate best practices Developing credit enhancement initiatives that help with

costsBrustein & Manasevit, PLLC

Charter Schools & Equity Issues

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Geography

More than half of all charter schools are located in major cities Not an option for many students, especially those

from rural areas

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Segregation?

2012 University of Wisconsin study 43% of black charter school students attended

schools that were 99% minority Compared with 15% of black student population

in traditional public schools Minneapolis: 44% of charter schools were 80% or

more non-white2012 Civil Rights Project at UCLA study:

Higher percentage of charter schools than traditional public schools are “racially isolated”

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Segregation?

What are causes?Self-selection? Intentional

segregation?Geography? Schools prioritizing

growth over equity?Charter advocates say

schools comply with all applicable civil rights requirements

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Students with Disabilities

Attend charter schools at much lower rates2012 GAO Report to Congress found that in

2009-10, student with disabilities made up: 11.1% of total school-age population 11.2% of traditional public school population 8.2% of charter school population

(up from 7.7% in 2008-9) Varies by State

In NH, students with disabilities make up 6% of charter school population; 13% overall

In IA, MN, NV, NM, OH, PA, VA, WY, about the same as % of total population

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Students with Disabilities

Why? GAO doesn’t know

Possible explanations: Placement by charter/LEA Location of schools Parent preference/student need School capacity/resources Funding

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Recommendations to States on Equity43

ED’s Equity and Excellence Commission: Ensure funding equity Ensure access to publicly reported data for all public schools

including charters Work with Congress to promote research and evaluation of

the effect of charter schools on equity and access to public education

University of Colorado National Education Policy Center: Explicitly require that charter schools "enhance equitable

educational outcomes for all students, particularly those who have historically struggled."

Ensure that charter schools are in compliance with all federal laws, including civil rights laws

Employ increased federal-level data collection and accountability measures.


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ESEA Flexibility


Charters & ESEA Flexibility45

From ED’s ESEA Flexibility FAQsESEA flexibility principles apply to charter

schools SEA must include charters in its plan for transitioning

to CCR standards and assessments; differentiated accountability system; teacher and principal evaluation & support systems; all AMOs must apply to charters

Title I-participating public charters can be labeled “reward,” “priority,” or “focus” schools

Charter school authorizer’s decision to close a charter overrides SEAs labeling of a charter

http://www2.ed.gov/policy/eseaflex/esea-flexibility-faqs.doc



Which State entity is responsible for ensuring CS-LEA or charter school complies with State’s accountability system? ESEA requires State charter school law governs

Generally means authorizer is responsible for accountability

BUT under ESEA flexibility, SEA establishes AMOs and accountability system, authorizer (or entity under State CS law responsible for accountability) should maintain close contact with SEA to ensure receiving current and accurate information



Is a CS-LEA included in SEA’s differentiated recognition, accountability, and support system as an LEA or school? CS-LEA is subject to recognition, accountability, and

support provisions applicable to schools. For flexibility purposes, SEA treats ALL charter

schools, regardless of LEA status, as schools SEA includes CS-LEAs when identifying reward,

priority, and focus schools



Can authorizer impose more rigorous accountability requirements on CS than SEA’s differentiated system requires? YES ESEA flexibility does not prohibit charter contracts

exceeding SEA’s minimum requirements


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Caution: Each State’s approved waiver varies, so be sure to consult the waiver/appropriate staff regarding any new or modified requirements!

Charters & ESEA Flexibility


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Civil Rights


Civil Rights Laws51

Charter schools must comply with federal civil rights laws, including: Title VI of the Civil Rights Act of 1964 Title IX of the Education Amendments of 1972 Section 504 of the Rehabilitation Act of 1973 Title II of the Americans with Disability Act Age Discrimination Act of 1975

If charter is part of LEA LEA responsible for civil rights compliance

If charter receives federal funds from SEA or its designee SEA also responsible


Civil Rights Data Collection52

CRDC collects data from public schools nationwide Enrollment Services disaggregated by race/ethnicity, sex, LEP, &

disability

Used by OCR for enforcement and monitoringUsed by other offices, agencies, policymakers

& researchersCharter schools must comply with OCR’s data

collection efforts


Helpful Resource53

Applying Federal Civil Rights Laws to Public Charter Schools, Questions and Answers ED/OCR guidance, May 2000 Reviews civil rights requirements applicable to

charter schools, including: recruitment, admissions, lotteries, desegregation, services to LEP students and students with disabilities

Archived online at: http://www2.ed.gov/offices/OCR/archives/pdf/charter.pdf


Resource for Charter Schools Serving ELLs

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NAPCS Serving English Language Learners: A Toolkit for Public Charter Schools (April 2013) Provides key federal laws & policies; examples of state

laws; and framework for developing, implementing and monitoring ELL instructional program

Discusses charter schools serving ELLs School opening, recruitment, admissions, identification,

assessment, program requirements, teacher qualifications, exiting students from ELL program, monitoring and parental communication

http://www.publiccharters.org/data/files/Publication_docs/NAPCS_ELL_Toolkit_04.02.13_20130402T114313.pdf


Case Study: Food Allergies55

Mystic Valley Regional Charter School State Hearing Officer decision required school to

ban all peanut products from child’s classroom due to life threatening allergy

School failed to make undue hardship/burden argument


Case Study: Diabetes Care56

University Legal Services and American Diabetics Association filed complaint with ED

13 DC charter schools enrolled diabetic students and failed to provide enough staff trained to give insulin shots and other medical care

CS did not have written plans to provide diabetic students with accommodations (ex: eating and drinking when necessary)

As of December 2012, all but 2 CS corrected problem


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Charter School Program


CSP Generally

Designed to support the planning, development, and initial implementation of charter schools during their first three years of existence

Provides dissemination grants to facilitate the sharing of practices between charter schools and other public schools

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CSP Generally

ED awards grants to SEA or to “eligible applicants” If SEA does not apply, “eligible

applicants” can apply directly to ED Program requires a State charter

school law, and charters must meet a 12 part definition in Section 5210(1) (no waivers permitted for the definition of a charter school)

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CSP Start-Up Grants

May not exceed period of 3 years Post-award planning and design of the educational

program (18 month limit) Refinement of educational results, methods for

measuring progress, professional development of teachers who will work in school

Initial implementation of the charter school (24 month limit) Informing community about school, acquiring necessary

equipment and other educational materials, other initial operational costs that cannot be met from State or local sources

So, if 18 months on planning, only 18 more permitted for implementation

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CSP Dissemination

2 year periodPurpose: Helping charters overcome:

Political conflictVariations in qualityChallenges to meaningful

collaboration/ experience sharingDifficulties to “scaling-up” effective

approaches Isolation of the charter school

community, to share experience with traditional public schools

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CSP Dissemination

Only qualifying charter schools are eligible for the dissemination grant:In operation for 3 consecutive years, and

Shown substantial improvement in student achievement

Have high levels of parental involvement Include management and leadership that have

overcome start-up issues and are thriving SEA may reserve up to 10% of CSP grant

to support dissemination activities

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CSP Dissemination

Dissemination grants have not thrived Challenges remain:

Between 2000 - 2005, few States had considerable charters meeting the minimum eligibility requirements

Charters had difficulty identifying non-charter schools that were interested in participating in dissemination activities

Few States conducted evaluations of their statewide dissemination grant programs

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CSP and Private Schools

Private schools do not meet the definition of a charter school under the ESEA

Cannot receive CSP fundsCan’t make the switch to get CSP funds:

ESEA does not recognize conversions of private schools into public charter schools

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CSP and For-Profits

A for-profit entity does not qualify as an eligible CSP applicant

A non-profit charter school receiving CSP funds may enter into a contract with a for-profit entity to manage the charter school on a day-to-day basis The non-profit entity must directly administer or

supervise the administration of the CSP project Non-profit recipient is directly responsible for

CSP compliance

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CSP and Religious Schools

Public charter schools must be non-religious in programs, admissions policies, governance, employment practices and all other operations.

The charter school’s curriculum must be completely secular.

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CSP Assurances

New assurances added to CSP applicationLanguage in FY 2010 Consolidated

Appropriations Act

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CSP Assurance 3A

Each authorized charter school in the State operates under a legally binding charter or performance contract between itself and the school’s authorized public chartering agency which must: Describe the obligations and responsibilities of the

school and the public chartering agency; Conduct annual, timely, and independent audits of the

school’s financial statements that are filed with the school’s authorized public chartering agency; and

Demonstrate improved student academic achievement.

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CSP Assurance 3B

Authorized public chartering agencies use increases in student academic achievement for all groups of students as the most important factor when determining to renew or revoke a school’s charter

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CSP Assurance 3B

Increased student achievement across all subgroups:

Economically disadvantaged students; Students from major racial and ethnic

groups; Students with disabilities; and Students with limited English

proficiency

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OIG Report on CSP Oversight

Released September 2012Findings:

ED did not conduct sufficiently effective oversight; ED’s process for ensuring States effectively monitor

subgrantees is in need of improvement; and ED did not ensure that States have adequate

monitoring procedures for handling charter school closures.

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OIG Report – SEA Findings

Did not adequately monitor charter schools receiving the SEA grant;

Did not have adequate methodologies to select charter schools for onsite monitoring visits; and

Did not monitor the authorizing agencies.Insufficient procedures for closing charter

schools and recovering SEA grant funds from the institutions.

No written State requirements for how unspent funds can be given back by closed charter schools.

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OIG Recommendations to ED

Develop and implement policies and procedures “issuing and tracking corrective action plans for each monitoring finding or specific recommendation made as a result of monitoring reports produced, and monitoring grantee fiscal activities;”

Establish and implement requirements for SEAs to develop a monitoring plan explaining the extent of monitoring that will be conducted during an SEA grant cycle;

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OIG Recommendations (Cont.)

Provide necessary guidance and training to SEAS for the development and implementation of procedures to ensure SEAs have effective monitoring and fiscal controls for tracking the use of funds; and

Ensure SEAs have procedures to properly account for SEA grant funds spent by closed charter schools and for disposal of assets purchased with SEA grant funds in accordance with Federal regulations.

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Questions???


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PRESENTATION OR LATER REVIEW OF THESE PRINTED MATERIALS DOES NOT CREATE AN

ATTORNEY-CLIENT RELATIONSHIP WITH BRUSTEIN & MANASEVIT, PLLC. YOU SHOULD NOT TAKE ANY ACTION BASED UPON ANY INFORMATION IN THIS

PRESENTATION WITHOUT FIRST CONSULTING LEGAL COUNSEL FAMILIAR WITH YOUR PARTICULAR

CIRCUMSTANCES.

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Disclaimer


Documents

JULIA MARTIN, ESQ. [email protected] BRETTE KAPLAN, ESQ. [email protected] STEVEN SPILLAN, ESQ. [email protected] BRUSTEIN & MANASEVIT, PLLC