School Choice & Charters

Constitutionality of Mich. Charter Law Weighed

By Peter Schmidt — November 02, 1994 4 min read

Michigan’s state superintendent has approved the public charters of eight schools, but their fate and that of the state charter-school law remained unclear last week as a judge weighed the law’s constitutionality.

Judge William Collette of Ingham County Circuit Court has blocked the state from providing funds to the schools until he decides whether the charter-school law that led them to be granted “public” status conforms to the state constitution. A decision is likely this week, officials said.

In a related development, Superintendent of Public Instruction Robert E. Schiller late last month denied a ninth charter school, Noah Webster Academy, classification as a public school and access to state funds. The academy has drawn fierce opposition from critics who have charged it is essentially a private network of home-schooling families.

The academy does not fall under the charter law’s definition of a public school because its students are not taught at one site and do not necessarily receive certified instruction, Mr. Schiller said in a prepared statement.

“The Noah Webster Academy at this time is simply providing educational support services by means of a toll-free number for a network of home schoolers,” Mr. Schiller maintained.

David A. Kallman, a founder of the school and its lawyer, said he plans to file a lawsuit challenging the superintendent’s decision.

Superintendent Schiller also denied public funding to a Caledonia, Mich., alternative school, but described his objections to it as minor and easily resolved.

Defining Public Education

Michigan’s charter-school law, enacted last December and effective this year, empowered any public university, community college, or local or intermediate school district to grant public school charters to schools that meet certain criteria.

The law’s constitutionality was challenged almost immediately by, among others, the Michigan Education Association, several state school board members, and the Michigan Council About Parochiaid, an organization that advocates the strict separation of church and state. (See Education Week, Sept. 7, 1994.)

They contend the law unconstitutionally transfers several powers of the state school board to the entities that approve charters, and contradicts the constitutional definition of a public school as one ultimately and immediately controlled by a local school board.

“The legislature does not have the right to define public schools in any way it desires,” Arthur R. Przybylowicz, a lawyer for the plaintiffs, asserted last week during oral arguments in the case.

William F. Young, another lawyer for the plaintiffs, said in an interview that most of the recently chartered schools “are no more public today than they were last year.”

“They slapped on a coat of paint and changed the name,” he said.

But John B. Curcio, a lawyer representing Central Michigan University and the two schools it has chartered, disagreed. The public retains control over the schools because the entities that grant the charters are either elected or appointed by elected officials, he said.

“The minute any charter school gets out of line, their charter can be recalled,” Mr. Curcio said.

Mr. Curcio said the charter schools will likely provide other public schools with competition that will force them to improve. “This is what scares the teachers’ union to death,” he said.

The charter-school law provides for enough public control over the schools to pass constitutional muster, said R. John Wernet, an assistant attorney general for the state.

Nevertheless, a spokesman for Gov. John M. Engler said he expects the law to be struck down. “We are fairly sure that the judge is going to rule against us, based on his line of questioning,” said the spokesman, John T. Truscott.

The state’s appeal would likely take several months, and “the charter schools that are out there and operating are in danger of having to close because of a lack of funding,” Mr. Truscott said. Many of the schools are operating on loans until they receive state money.

Superintendent Challenged

Noah Webster Academy, which opened Sept. 1 and now serves about 1,400 home-schooled students around the state, will likely shut its doors if it cannot get the state superintendent’s decision reversed, its lawyer said.

Mr. Kallman, who has frequently sparred with the state over legal questions related to home schooling, said he plans to argue that only the legislature, and not the superintendent, may determine what constitutes a public school.

“There is a history here in the state education department of doing things just because they can do them and no one challenges them,” Mr. Kallman charged.

Moreover, Mr. Kallman maintained, Noah Webster provides the services of certified teachers, keeps attendance records, and operates much like other public distance-learning programs.

Nevertheless, Governor Engler supports the state superintendent’s decision to deny the school funding, Mr. Truscott said last week.

The other charter schools have not been nearly as controversial as Noah Webster, which received its charter in April from the school board for Berlin and Orange townships for a two-room schoolhouse in Ionia County, in southwestern lower Michigan.

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A version of this article appeared in the November 02, 1994 edition of Education Week as Constitutionality of Mich. Charter Law Weighed

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