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Friday, November 4, 2016

New Charter School Controversy Calls into Question Democratic Accountability and What It Means to Be a Public School

From The Education Law Prof Blog

By Derek Black
November 2, 2016

"As state actors, public schools are bound to treat students (and teachers) fairly, which entails, among other things, equality, rationality, and viewpoint neutrality. Moreover, these obligations extend not only to individual students but to groups of students, schools, and districts."

One of Dallas’ oldest and biggest charter schools, A.W. Brown-Fellowship Leadership Academy, is in turmoil. It started out with an enrollment of 200 students more than a decade ago and now has 2,400, with growth each year.

Some parents are rethinking the school and its governance. New claims of abuse and/or mistreatment of students have been levied against the school. Parents claim the school is being non-responsive to concerns.

The problem appears that even if the parents are correct there is nothing they can do about because of the differences between a charter school and a traditional public school.

Parents also complain of nepotism — namely, that board president Lorenzo Brown and his son serve together. But that’s legal for charter schools in Texas. After all, A.W. Brown school was started by a husband and wife. At one point, both Armond and Paula Brown served on the board and worked as employees, records show. Other family members also worked for the school.

If the school were part of a traditional district, parents could elect their board members. But as a public charter school, A.W. Brown’s board appoints its members.

So some parents say they’re voting with their feet. LaTrondra King said her son is on the waiting list at another charter school. “I just want the best for him,” she said.

In Charter Schools, Vouchers, and the Public Good, I raised similar issues in the context of asking what makes a school "public."

Does a statute that calls a charter school a public school make it so, or are there substantive qualities and characteristics that make a school public?

I won't recount that entire discussion here, but I argue that constitutional and democratic accountability, among other things, are a central aspect of what makes a school public.

"Public schools’ mission also extends to fostering [particular] values once students are enrolled, including democracy, equality, and tolerance. Public schools pursue these ends not only because they are public values but also because the Constitution mandates as much. This is no small distinction. As state actors, public schools are bound to treat students (and teachers) fairly, which entails, among other things, equality, rationality, and viewpoint neutrality.

Moreover, these obligations extend not only to individual students but to groups of students, schools, and districts. Equality offers a touchstone example. From its decision of whether to assign a student to special education classes to its decision of how to fund schools and districts, the state and all its subsidiary public schools must ensure equal treatment of and opportunity for all students.

Any number of private schools might hold these same values, as they are not inherently unique to public schools. But private schools are free to bend, ignore, and modify these values. Likewise, statutes might impose equality obligations on nonpublic schools that receive federal funds or fall within some other statutory classification, but private schools are free to decline federal money or alter their status to avoid falling within the ambit of other statutes.

For that matter, legislators can exempt private schools from statutory prohibitions at any time and, in fact, have done so on occasion. In short, those values that make schools public create inviolable rights in public schools, in contrast to nonpublic schools, where those values are gratuitous, to the extent they even exist.

Constitutions and statutes, however, are but one piece of the public schools’ accountability structure. Perhaps more important than legal accountability is their political accountability. From the governor and department of education officials to the school board, superintendent, and principals, public education is democratically accountable. To state it another way, people collectively set the rules for public schools.

Nonpublic schools, in contrast, lack democratic accountability. Many argue that consumer accountability is more effective than democratic accountability, and often they are correct. For instance, consumers of education, as a practical matter, are more likely to affect immediate change in nonpublic schools. But there are important limits and caveats to consumer influence.

First, the larger community has little influence on nonpublic schools, whereas everyone has the capacity to influence public schools. Second, even those consumers who can exert influence on private schools may find that it is only as to micro-level issues or those issues that the school is willing to negotiate.

The educational direction of nonpublic schools ultimately rests solely in the hands of the private school’s leadership and is not subject to formal checks. Unlike in public schools, consumers cannot un-elect the boss or bosses in private schools. Their only option is to go elsewhere.

Finally, schools are public because they represent the democratic will of the people. Schools that represent something other than the will of the people are not public in a substantive sense. While these points might seem obvious, they bear noting because, as suggested previously, they mark the outer limits of the role that dissent can play in public schools. Because public schools operate based on democratic consensus, both the dissenter and consenter must abide by the consensus rules.

While nonpublic schools can tolerate relatively high levels of individual action and dissent—as individuals can sort themselves into varying nonpublic schools—a system of public schools risks falling apart because it is predicated on collective action. Thus, a hallmark of public schools, for better or worse, is to compel conformity and limit dissenters’ capacity to overrule the majority."
That article also posits that charter schools, as currently structured, present serious tensions that call into question whether they are, in fact, public schools.


"With these broad outlines, the question is whether charter schools are substantively public schools and, if not, what steps are necessary to make them public. Of course, state statutes label them as such, but if labels do not confer substantive status, something more must be said of charters. Implicitly recognizing the distinction between labels and substance, commentators and scholars have struggled with how to characterize charter schools.

Although some assert charters are public with no explanation beyond the fact that statutes label them as such, more often scholars characterize them as “quasi-public” or hybrid-public schools. These latter characterizations implicitly acknowledge that important aspects of charter schools distinguish them from public schools. Yet, the fact that they are publicly funded and offer free education cautions against eschewing the public characterization altogether.

At some point, however, variations between charter schools and the essential meaning of a public schools are too significant, and a school is either public or not. If the label quasi-public is accurate, a strong case can be made that charters are not public schools. To call a school quasi-public may be to say it looks and acts like a public school in various respects, but it is not really a public school.

For instance, courts label some agreements or understandings between people as “quasi-contracts” and, in doing so, impose contractual responsibilities on the parties, but a “quasi-contract” is a quasi-contract and not an actual contract, because it lacks some crucial element of a contract.

In practice, charter schools, like quasi-contracts, lack crucial elements of the label to which they aspire. In particular, charters diverge from the public school concept in terms of their student enrollment, oversight, and potentially insular missions. This divergence, in all fairness, is not likely true of all charters, as charters operate in diverse ways, but few states sufficiently regulate charters in the manner necessary to ensure that they, as a group, adhere to key public school characteristics.

In effect, those charters that act consistent with public values are effectively doing so on a voluntary basis, just as a private school could." 

Read the full article here.

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