Why Charter Schools Bother Me
Justin Bathon on Saturday, January 9, 2010 at 1:14AM This case really illustrates why charter schools fundamentally bother me. Here is a summary of it (I did this for the School Law Reporter, and since I am putting this one out for free, do me a favor and consider joining ELA):
Northern Kane Ed Corp v. Cambridge Lakes Educ Ass'n, 914. N.E.2d 1286 (Ill. App., 4th Dist., 2009). A teacher union’s ability to organize and represent the teachers of an Illinois charter school was at issue in this case. Reversing the Illinois Educational Labor Relations Board, the appellate court found that the charter school authorizing statute excluded the provisions giving bargaining rights to public school teachers. The court interpreted the statutory provision reading, “[a] charter school is exempt from all other state laws and regulations in the School Code” as including the provisions of the Education Labor Act, while the union argued that the Education Labor Act was a distinct law from the School Code. The Court did note that Illinois subsequently passed a separate law providing coverage of the Education Labor Act over charter schools, but that the law could not be applied ex post facto to the school district.
So, a legislature, in this case Illinois, writes a law saying "exempt from all other state laws in the School Code" without really defining anything else.
Um ... then what?
Actually, I'll tell you what comes next ... a whole bunch of lawsuits like this one. And we're just at the tip of the iceberg on these charter school lawsuits. This is going to be an enormous mess legally.
Here are the questions, for instance: Did the legislature intend to give charter school teachers bargaining rights? Did it not? What's the legislative history say? Should we pull out some statutory interpretation rules? What does public policy prefer? Should judges be making these policy decisions in the first place? And, does it stop there? What about due process elements for teachers? What about tort immunity laws? What about workplace safety laws? What about, what about, what about ... it's sort of endless.
Basically, courts (largely ignorant when it comes to sound educational policy) are left to guess and fill in all the holes because a legislature got ahead of themselves in writing these charter laws. It has taken us a hundred years to fill in the details of school law in the United States (fifty times over, in fact). To try and just sweep that away in one fell swoop is irresponsible at best. Sure, that 100 years of law is an enormous bureaucratic hurdle and it hampers educational innovation. I get that. But, every single one of those laws (even crazy ones like this one, see section c) is there for a reason to protect some kid, some teacher, some parent, some administrator and the schools themselves. If you don't like those rules, change them. Tweak them. Reform them. But, don't just try and get rid of them... all ... at once.
I get that everyone wants to blame the law. It's an easy and politically expedient target. I get it. But, the law is not the problem most of the time. The law is not what is holding our schools back. There is a lot of flexibility already built into the system. Certainly enough to make massive changes as a school leader and there is flexibility in our democratic system that we can change the laws when they get out of date.
Charter schools are a quick fix, a cop out in some ways, and like any other quick fix they frequently cause more problems (and litigation) than just putting in the hard work to fix the law in the first place would have done. This case is just one small example of what is likely to continue to be a growing trend.
Reader Comments (8)
Justin, wouldn't we naturally expect any new paradigm to launch a whole new series of lawsuits, as society tries to reconcile old laws and belief systems with new settings and capabilities? Whether it's charter schools or cyberschools or magnet schools or homeschooling (or the Internet or mobile phones or ...), it takes us a while to figure out what the laws, regulations, and policies should be to simultaneously enable and regulate new opportunities. I dare say that few laws or policies are perfect at their outset. Most need revision as they come up against the reality of implementation. This law may have been overly broad from the get go, but it wouldn't be the first time legislators and policymakers had to go back and make changes.
I confess that your wholescale indictment of charter schools because of this law seems to me to be a vast overextension of the issue at hand. The issue is an imperfect law that needs to be changed, not whether charter schools writ large are appropriate societal institutions.
On another note, I'll also state that it's extremely difficult to find an innovative school system - one that truly breaks the mold of traditional 19th-century schooling - that isn't based on a charter/magnet/cyber school model. You state that sufficient flexibility exists in our traditional system of schooling. I challenge you to find more than a handful of examples of innovative traditional schools. Let me know when you do!
Sure, Scott, all good points and points that I agree with at some level. But, as a lawyer, how can you not look at that Illinois law and just shake your head? It's ridiculous legally. Stupid, even, and extremely irresponsible. But, I don't think the Illinois law was an exception. A lot of the Charter authorizing statutes are sort of like that ... broad abdication of law, little detail to fill in gaps, resulting in a legal blackhole.
Here's another example, worse even, cyber-charters: http://www.edjurist.com/blog/liveblogging-ela-cyber-charters.html -- Research from those people that I trust has shown that it is almost the wild, wild west when it comes to these things and I have to question whether the wild, wild west is the best environment for children. Even if that environment is the better environment for learning (but research hasn't really show that yet that I am aware of).
For argument's sake, let's just assume charter's are the better environment for learning for some, even a majority, of students. Our law doesn't necessarily care about the maximal learning of the majority, it cares about the minimal learning of the minority (of course, you can argue it doesn't do a great job at that either, but that is a different discussion).
We have built thousands and thousands of pages of laws to assure the minimal learning of the minority, protections for teachers, protections for public funds, etc. and Charters just throw most of those out the window. Now, we have seen a lot of stories where doing that permits a lot of innovation. But, we have also seen a whole of of Charters that are abject failures.
It just bothers me. That law is there for a reason. Sure that law was built in a twentieth century modality, but to go from twentieth century law to NO (or little) law, is not the right solution in my eyes either. The political and legal establishments are coming around. They are not as anti-innovation as they used to be (I think as you talking to the NEA is a good example). We can make changes without throwing out the system wholesale. That might be a difference between us, and maybe I am naive, but I think that is just much more likely and much more responsible.
I'm not arguing that charter schools don't need oversight. I just said that there's a difference between legislators making arguably unintelligent decisions about charter school legislation and the worth of charters as a schooling model. You seemed to conflate those two when you said in your opening line "[This is] why charter schools fundamentally bother me." You did NOT say, "This is why policymakers need to think more before they enact broad, sweeping charter school legislation."
On another note, of course some charters are failures. They're human endeavors, aren't they? A large number of traditional schools are failures too. And we've got magnet schools, and cyber schools, and homeschooling environments that aren't up to snuff either. Most states have terrible quality control mechanisms for all of these. We assigned that task to department of education bureaucrats. Should we expect anything different? If you have concerns about cybercharters, create legislative and other supervisory oversight mechanisms that address those concerns sufficiently (as you advocate), but don't jump from that to indict the basic model of cybercharters and unworthwhile. Again, there's a difference between the worth of educational models and the laws that surround them...
Off-topic:
Are our laws set up to ensure the minimal learning of the minority? I dunno. I'll have to think about that a bit. But I know our schools are set up to ensure the minimal learning of the majority. And that's going to come back and bite us sooner rather than later.
Okay, we're not too far apart here, maybe just a matter of definition.
I just consider the abdication of most existing state laws as applied to schools as a basic element of most state charter schools policies ... i.e., THAT IS THE MODEL (as you can see here in this excellent ECS compilation of Charter laws: http://mb2.ecs.org/reports/Report.aspx?id=65). Just browsing around that list, it seems to be a common component of most (of course to different degrees). If that were not a basic component of charters, then I wouldn't be as anti-charter, of course.
I agree that the laws are sort of screwed up everywhere, including traditional schools, but I think I would rather have the laws in place than not. Obviously people are going to disagree with me on that point, but school law is mostly a good thing.
Justin,
You make some great points. The legal protections that we have at the state and federal levels are extremely important and should not be compromised. But I'm not convinced that the charter school concept necessarily compromises those protections. It is true that charter school laws in most states free charter schools from SOME of the state laws and regulations that apply to traditional public schools. I'm not familiar with the specifics of the Illinois law, but I haven't seen a charter school law yet that I judged to have a malicious intent. If anything, most of the laws that I've seen are intended to give good alternative options to the kids that need the most protection. Does that mean that the policies don't have unintended negative effects on the traditional public schools in their jurisdictions? Absolutely not. We all know that some of them do. But I agree with Scott that the answer lies in fixing those laws and not the wholesale abdication of a promising education reform.
What I would like to see is us working toward incorporating the charter school concept INTO public school systems, rather than positioning charter schools as threats to school districts. Some of the things that make charter school reform appealing would be good for alll public schools. But that's another conversation/debate/scholarly exchange.
Where's the evidence that charters improve outcomes for the whole? A charters for the good of the commonwealth or are they for the good of the few who join the club, I mean charter school?
I'd like to see that question answered along with the ones that Justin asked -Did the legislature intend to give charter school teachers bargaining rights? Did it not? What's the legislative history say? Should we pull out some statutory interpretation rules? What does public policy prefer? Should judges be making these policy decisions in the first place? And, does it stop there? What about due process elements for teachers? What about tort immunity laws? What about workplace safety laws?
Justin:
You're right: "The law is not the problem most of the time." In TN, for example, districts could, pursuant to law, give principals all the per pupil money represented by their students and let them really have the autonomy to go with their accountability. But they don't. In TN, districts could adjust their school calendars to have longer or shorter hours to meet the needs of different students, based on their home environments and current academic standing. But, they don't. In TN, school leaders could move to mastery learning in high school, since the law allows testing for credit for all high school courses except American History. But, they don't.
"The law is not what is holding our schools back. There is a lot of flexibility already built into the system. Certainly enough to make massive changes as a school leader . . . " This is true, but, for the most part, no one is taking advantage of the flexibility.
The only thing about a "chartered school" that initially makes it different is how it was formed. It's legal structure provides some opportunities for innovation (or simply improvement) that might cost more politically or socially in existing schools. Admittedly, some of the schools formed by charter simply replicate the same format as other schools. And some succeed and some fail.
But, when, for example, in TN, the existing schools have a 30--50% failure rate, why would we get in the way of a legal form that allows for some more experimentation? I don't think the Toyota plants in Kentucky would stay open if 30-50% of their cars rolled off the line defective. Yet we allow schools to remain open and drop out or turn out thousands of students who are unemployable and unprepared for further education.
Charter schools can be formed quickly, but they can fail quickly. In TN for example, where only LEAs can authorize charters, if a charter fails to make AYP for two consecutive years, it can be closed, with no questions asked and no hearing. Meanwhile, it takes at least seven years for a traditional public school to even face the possibility of that happening at the hands of its authorizer (the state dept. of ed.).
We can't write laws well enough to fix the failure rate. We can write laws that create space for the right people to do the right things. If there are some failures along the way, that's OK. It's not like we don't have any failure occurring now!
@Wayne - that's probably a good solution and one I could get behind. If we bring those two worlds together more, I think both would be better off.
@Dan - Yeah, obviously we are sort of thinking along the same lines.
@Rich - I think you are really getting to the heart of it and where my resistance softens. There are a lot of legal reasons I don't like Charters and some philosophical ones as well, but in the end, I am willing to try things because the of the failures we are currently experiencing. I don't think this charter thing is going to be all that successful in the end, but the additional money in lawsuits might be worth those few opportunities for success. I guess that's why I am not dead set against Charters ... they just sort of "bother" me.