Transcript Charter Schools:

1
Charter Schools:
Important Topics, Guidance and
Unanswered Questions
Brette Kaplan, Esq.
[email protected]
Steve Spillan, Esq.
[email protected]
Brustein & Manasevit, PLLC
Spring 2012 Forum
2
Agenda
•
•
•
•
•
•
Overview
Guidance
Accountability
Monitoring
Charter School Program
Legislative Update
3
Spotlight on Charter Schools
• Charter schools gained prominence during the
Bush Administration, following NCLB passage
• Obama Administration continues to favor public
charter schools
• Congress is poised to increase the attention and
spotlight on charter schools
4
Charter School Advancement
• Charter School Program was created in 1994
• Ongoing discussion of applicability of NCLB
accountability measures
• Charter school requirements under Race to the
Top
• Key topic of ESEA reauthorization
5
Conflicting Charter School Theories
• Conflicting theories of action:
▫ Charter: Tight about the ends and loose about the
means
▫ NCLB: Systemic about the means and about the
ends
• NCLB requires systemic reform:
▫ “Single, statewide accountability system”
▫ Statewide professional qualifications system
▫ Uniform sanctions and more!
6
Conflicting Charter School Theories
• However…
▫ Charter schools emphasize local control and
autonomy at the school level
• Now, charter schools must balance autonomy
with increased oversight
• Non-regulatory guidance suggests that charter
schools incorporate the Federal law as a floor,
but this may pose problems…
7
Guidance
• Draft Guidance “The Impact of the New Title I
Requirements on Charter Schools” (2003)
▫ Revised Guidance released (July 2004)
http://www.ed.gov/policy/elsec/guid/charterguidance
03.doc
• Charter School Program Guidance (April 2011)
http://www2.ed.gov/programs/charter/nonregulatoryguidance.doc
8
Guidance: Key Points
• As applied to charter schools, most oversight
requirements can be found in the guidance
▫ Lacks authority of formal rules
• Knowing a charter school’s legal designation
• Identifying the oversight agent under State
charter school law
9
Guidance: Legal Designation
• State law defines whether a charter school is
either a:
▫ Charter school that is a part of an LEA (similar to
a traditional public school); or
▫ LEA-charter school (charter school that serves as
its own district)
• ED guidance uses the above designations
• Some state laws are not clear on designation,
making implementation an adventure!!!
10
Guidance: Chartering Agency
• Authorized Public Chartering Agency:
▫ An SEA, LEA or other public entity that has authority
pursuant to State law and approved by the Secretary to
authorize or approve charter schools. Section 5210(4).
• The charter school authorizer will differ depending
on State law
▫
▫
▫
▫
University
School District
State Department of Education
Other chartering entity
• The responsible entity for accountability will vary
depending on State law.
11
ESEA Applicability
•
•
•
•
•
•
Assessments
Adequate Yearly Progress
School Improvement
Choice
Supplemental Services
Corrective Action & Restructuring
12
Accountability (Section 1111)
• Charters MUST comply with every aspect of
NCLB’s accountability system:
▫ Held to State-developed content and academic
achievement standards
▫ Participate in the State assessment system
▫ Compared to the State-developed AYP measure
▫ Identified for school improvement, corrective
action, or restructuring when failing to making
AYP, if charter receives Title I funds
13
Accountability (Section 1111)
• All students must be “proficient” by 2013-2014
• Disaggregation by student subgroup:
▫
▫
▫
▫
Racial & ethnic minorities
Students with disabilities
English Language Learners
Students from low income families
14
Accountability (Section 1111)
• To make AYP, the school or LEA must meet or
exceed the State’s annual measurable objectives
▫ All students, and each student subgroup must
make AYP
▫ 95% student participation
▫ Safe harbor provisions
▫ Statistical “N” size and confidence interval
▫ LEA student exclusions
▫ Students with disabilities exclusions
▫ Approved State pilot growth model may apply
15
Implementing Accountability
• State’s charter school law determines responsible
entity
• Usually, the authorizer is responsible:
▫ The charter authorizer is primarily responsible for
holding charter schools accountable under Title I, Part
A provisions
▫ Unless State law designates the SEA for charter school
Accountability
▫ See Guidance at A-2
• If charter is within LEA, LEA has grants
management responsibilities
16
Implementing Accountability:
Capacity Concerns
• Guidance: SEA may make available to
authorizers various Title I resources to perform
NCLB required duties, but not legally required
▫ 1% of Title I allocation
▫ 4 % School improvement
• Resource/capacity issue makes NCLB
enforcement by authorizers more challenging
17
Accountability: SEA Liability
• Guidance: Title I State accountability plan must be
consistent with State charter law & may not “replace
or duplicate” role of authorizer
• But what if authorizer fails to take action?
▫ Grants management principles apply – State
ultimately responsible for State-administered
programs
 Guidance: SEA ultimately responsible for
implementation of, and compliance with, the Title I
requirements by all public schools in the State receiving
Title I funds, including traditional public schools and
charter schools.
▫ Guidance does not address responsibility if there is a
conflict under the State’s charter school law
18
Charter and ESEA Conflict
• Guidance states that authorizers may incorporate
State’s AYP definition into charter, but are not
required to
• But what if conflict exists?
▫ Ex: What if charter provides for 5% improvement, but
State’s AMO is to improve 10%?
 Federal law is supreme! 10% would govern for AYP
 Should charter be amended in this case?
 Not required by ESEA
 Can SEA/LEA/authorizer force charter to be amended?
 Not explicitly required
19
Charter and ESEA Conflict
• Charter may contain more rigorous
accountability requirements than State plan
• If charter school fails to make AYP, even if it
meets contractual requirements with
authorizers, ESEA consequences must be
carried out
20
School Improvement
Section 1116
21
Public School Choice
• How choice is implemented depends on status of
charter school:
▫ If charter school is part of LEA, then LEA’s
responsibility
▫ If LEA-charter school, then school or authorizers
responsibility
22
Public School Choice
• Duty of LEA/authorizer/entity under State law to:
▫ Promptly inform parents of: identification, what ID
means, what school is doing to improve, what help
school is getting, how parents can become involved,
options for choice/SES
▫ Notify parents of right to return to “home” public
school
▫ Ensure that the charter school receives technical
assistance
▫ Review school’s improvement plan through peerreview process
23
Public School Choice
• If the charter school is part of an LEA…
▫ The charter school may be subject to receiving
choice students, as any traditional public school
 This may be inconsistent with contents of charter
24
Public School Choice
• Charter school-LEAs must “to the extent
practicable” work with local LEAs to create a student
transfer agreement
• Similar to a district where there is no viable transfer
option
• States may allow SES in 1st year of school
improvement if there is a failure to reach an
agreement
• LEAs & charter school LEAs with no transfer
options may offer SES in 1st school year of
improvement
25
Public School Choice
• Implications for LEA-charter schools:
▫ If charter school is not authorized by LEA, charter
school must agree to be a transfer option (i.e., LEA
cannot mandate without school agreement)
 See ED’s School Choice Guidance at E-1 (Jan. 2009)
▫ LEA-charter school defined as single school LEA
▫ To “extent practicable” charter school must have
cooperative agreement with neighboring LEA(s) to
facilitate choice
▫ If no agreement, parents must be informed student is
eligible for choice, including return to “home” public
school, but that no choice option is available
▫ May offer SES instead of public school choice
26
Supplemental Educational Services (SES)
27
SES: LEA Duties
• LEAs send annual notice to parents
• LEAs must arrange for services and enter into
agreements with SES providers
• LEAs must abide by FERPA
• Possible conflict with charter, if charter school
has exclusive contract with tutoring provider
28
SES: LEA Duties
• LEA charter schools must pay for SES on same
basis as any other LEA
• Unless a lesser amount is needed, an LEAcharter school must spend an amount equal to
20% of Title I funds on:
1. Choice related transportation;
2. SES; or
3. Combination of 1 and 2
29
SES: LEA Duties
• In practice, because an LEA-charter school is not
required to provide choice if not “practicable,”
most LEA-charters will spend the 20% on SES
(unless a lesser amount is needed)
30
SES: Eligible Entity
• Charter schools that are not identified for
improvement are eligible to provide SES
• If charter schools are among the eligible entities
to provide SES to students who qualify, charter
schools must meet State requirements
▫ It is not automatically granted
31
Corrective Action
32
Charter Corrective Action
• If charter school that receives Title I funds is
unable to make AYP for 4 years, charter school is
placed on corrective action
▫ Only in guidance
• Responsible entity (presumably authorizer) can
reorganize management and take other actions
consistent with State charter school law and
State’s accountability plan
33
Charter Corrective Action
• According to guidance, the appropriate entity
has the responsibility to reorganize charter
school management “consistent with State
charter law and State’s accountability plan for
charters.”
• Guidance states that State charter law will
determine if corrective action requires
modification of the charter document.
34
Charters and Restructuring
35
Charters and Restructuring
• NCLB allows for LEAs to “reopen the school as a
public charter school”
• This is one of 5 alternative governance options
▫ Guidance is unclear regarding what is required if
State law is silent on restructuring or if it conflicts
with charter
▫ Lots of open questions
36
37
Monitoring
• Grantees are responsible for managing the dayto-day operations of grant and subgrant
supported activities to ensure compliance with
Federal requirements and that performance
goals are being met.
▫ 34 CFR Section § 80.40(a)
• Monitoring is the regular and systematic
examination of a State’s administration and
implementation of a Federal education grant.
38
SASA
• Student Achievement and School Accountability
(SASA)
▫ http://www2.ed.gov/about/offices/list/oese/sasa/ind
ex.html
• ED monitors federal programs and the use of federal
funds
• ED policy: Every program office overseeing
discretionary or formula grant programs prepares a
monitoring. Monitoring includes a risk-based
analysis and target areas of identified need,
coordinated with technical assistance.
39
SASA
• Uses monitoring indicators to determine quality
of program implementation
• Monitoring Plan & Indicators (2011)
▫ http://www2.ed.gov/admins/lead/account/monit
oring/indicators1112.pdf
▫ Title I, Part A (Improving Basic Programs); Title
III, Part A (ELA); Title I, Part D (N/D); Title X,
Part C (Homeless); 1003(g) (SIG)
40
SASA’s Monitoring Indicators & Charters
• Charter schools are included in SASA’s
monitoring indicators
Program/Indicator
Title I, Part A;
3.1 Within State
Allocations,
Reallocations, and
Carryover
Guiding
Questions
How are charter
school LEAs
included in the
allocation process?
Title I, Part A;
3.3 Rank Ordering and
Allocation Procedures
Title III;
3.1 Title III LEP
Allocations
Acceptable SEA/LEA Evidence
•
•
•
Are public charter
school LEAs
included in the
application process
and subsequent
allocations under
Title III?
Procedures showing how State adjusts ED
allocations to account for existing and new &
expanding charter school LEAs
Evidence showing SEA included charter schools
in its allocation process
Evidence that charter schools are included in
the ranking
41
SASA’s Monitoring Indicators & Charters
• Charter schools are included in SASA’s monitoring
indicators – including SIG monitoring!
Implementation: Restart Model Specific
Questions
Restart Model Specific Evidence
What process and timeline was used to screen
and select the charter school operator, charter
management (CMO) or the education
management organization (EMO)?
Memos, announcements, RFPs and other
documentation outlining the criteria and
process for screening and selecting a CMO or
EMO
Has the LEA included terms to hold the above
entity (entities) accountable in the contract or
agreement for schools implementing the restart
model?
Copy of contract or service agreement with
CMO or EMO
What role does the EMO, CMO, or charter
organization play in the school?
School Leadership Team describes role of EMO,
CMO, or charter organization
42
Charter School Program (CSP)
Title V, Part B of the ESEA
43
CSP Generally
• The CSP is a targeted Federal grant program
• 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
44
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)
45
CSP Generally
• 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
46
CSP: Dissemination
• Dissemination grants – 2 year period
• Purpose: Helping charters overcome:
▫ Political conflict
▫ Variations in quality
▫ Challenges to meaningful collaboration/
experience sharing
▫ Difficulties to “scaling-up” effective
approaches
▫ Isolation of the charter school
community, to share experience with
traditional public schools
47
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
48
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 noncharter schools that were interested in
participating in dissemination activities
▫ Few States conducted evaluations of their
statewide dissemination grant programs
49
CSP: Private Schools?
• Private schools do not meet the definition of a
charter school under the ESEA
• Cannot receive CSP funds
• Can’t make the switch to get CSP funds:
▫ ESEA does not recognize
conversions of private schools into
public charter schools
50
CSP: For Profit?
• 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 forprofit 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
51
CSP: 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.
52
CSP: Assurances
• New assurances added to CSP application
• Language in FY 2010 Consolidated
Appropriations Act
53
CSP: Assurances
• 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.
54
CSP Assurances
• 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
55
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
56
CSP Assurance 3B
• It is not enough that State law requires improved
academic achievement
• Must issue new guidance or State rules to clarify
that this is the most important factor
57
CSP Assurances
• New assurances applied to FY 2010 grants and
beyond
• Of the 12 FY2012 recipients, most were found
non-compliant with at least 1 element of the new
assurances
58
Future of Charter Legislation
• House ESEA bills
▫ Individual Charter Bill
▫ Some bipartisan support
• Election year politics
59
H.R. 2218 - EMPOWERING PARENTS THROUGH
QUALITY CHARTER SCHOOLS ACT
• Encourages states to support the development and
expansion of charter schools.
• Streamlines federal Charter School Program funding to
reduce administrative burdens and improves funding
opportunities to replicate successful charter models and
facilities assistance.
• Supports an evaluation of schools' impact on students,
families, and communities, while also encouraging
sharing best practices between charters and traditional
public schools.
• Offers incentives to States that use charter schools to
reach out to special populations, including at-risk
students.
60
H.R. 2218
• Expands the scope of CSP:
▫ Change in applicant eligibility for CSP
▫ Extend the CSP grant period up to five years for both
State and local recipients
▫ Emphasize the need to serve all students, including
children with disabilities and ELLs, and increase the
focus on quality chartering processes at the State and
local levels
61
H.R. 2218 (cont.)
• Retain both the Per-Pupil Facilities Aid program
and the Credit Enhancement program, but
authorized under a new section entitled Facilities
Financing Assistance
• Change the use of funds for national activities to
focus on providing charter school startup and
dissemination grants
• Authorize 15% of the total appropriation for
Facilities Financing Assistance, up to 5% for
national activities, and the remaining funds for CSP
62
Senate Bill
• Harkin Legislation:
▫ Expands CSP and Charter Facility Financing
▫ 85% of funding for CSP, 15% for Facilities
• Senate HELP Committee Passed the bill
• No movement since October 2011
63
Chances of Passing Legislation
• Bipartisan support for charters, but not for
legislative agenda
• Not likely to see full reauthorization in 2012…
• Remainder of the election year focus on
spending, taxes, jobs
64
Questions
Comments
Discussions
?????
64
65
This presentation is intended solely to provide general
information and does not constitute legal advice or a legal
service. This presentation does not create a client-lawyer
relationship with Brustein & Manasevit, PLLC and,
therefore, carries none of the protections under the D.C.
Rules of Professional Conduct. Attendance at this
presentation, a later review of any printed or electronic
materials, or any follow-up questions or communications
arising out of this presentation with any attorney at
Brustein & Manasevit, PLLC does not create an attorneyclient 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.