Law & Courts

Disputes Over Charter Closures Winding Up in Court

December 30, 2005 10 min read
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Paulden Elementary School wasn’t supposed to be open this academic year. State officials in May revoked the charter for the rural Arizona school, citing several violations of state and federal law, including the failure to fingerprint some teachers.

Not surprisingly, the move by the Arizona State Board for Charter Schools wasn’t exactly welcome news to the school’s leaders. But rather than grudgingly accept their fate, they opted to fight it out—in the courtroom.

The dispute is one of several similar lawsuits across the country, either ongoing or recently resolved, in which decisions to close charter schools have been challenged.

In Massachusetts, for instance, a charter school is staying open for now as it appeals a judge’s ruling late last month upholding the state’s decision to close it. Two Florida charter schools that sued to stay open got their wish this past fall—sort of. After a judge called for mediation, the schools were allowed to keep operating. But they lost their charter status.

Lawsuits challenging orders to close charter schools remain relatively rare, says Greg A. Richmond, the president of the National Association of Charter School Authorizers, a group based in Alexandria, Va. But they are a reminder that, despite the ultimate accountability that the shutdown of a charter school represents in theory, it’s usually hard to do in practice.

“Most schools that are facing closure do resist, and I can’t fault anyone in that position for trying to stay open,” Mr. Richmond said.

The decision to take a charter school’s fate to court, however, is controversial. While some suggest it’s entirely appropriate for a charter school to pursue a legal review if its leaders believe it has been treated unfairly, others worry about turning to the courts to be the arbiters in such matters.

“The courts are going to focus on legalistic, procedural things rather than what’s good for the kids,” said Bryan C. Hassell, a policy consultant and charter expert based in Chapel Hill, N.C.

Frederick M. Hess, the director of education policy at the American Enterprise Institute, a Washington think tank, said he too is troubled by taking such matters to court, but he expects more lawsuits over charter revocations in the future.

“As the number of charters grows, and as states grow more aggressive [in closing schools], we’re probably going to see more of this stuff,” he said, “and the obvious place to appeal is the courts.”

Avoiding Fights

The ability to close schools that are not up to snuff is a fundamental principle of charter schooling. The publicly funded but independently run schools receive greater autonomy than most other public schools in return for a promise to be held accountable for results. If a school isn’t working, charter advocates say, shut it down.

Yet decisions to close charter schools are often met with fierce opposition, even in cases where the schools have serious organizational, financial, or academic problems.

Mr. Richmond said authorizers sometimes avoid trying to close schools because of the anticipated opposition.

“I’ve at times talked to people who say, ‘Well, it just isn’t worth it,’ ” he said.

As of this school year, more than 3,600 charter schools are operating nationally, enrolling nearly 1 million students, reports the Washington-based Center for Education Reform, a pro-charter research and advocacy group.

Last school year, about 65 charter schools closed their doors in 17 states and the District of Columbia, representing 2 percent of charters in those places, according to the National Charter School Research Project at the University of Washington in Seattle.

Many charter experts suggest more schools, especially low-performing ones, should close.

“Most people would say there is no doubt that many charter schools that ought to be closed are still open, in large part because of the resistance,” Mr. Hassell said.

Ohio legislators, responding to concerns of lax charter oversight, passed a law last summer to eventually close charters that do not meet certain achievement targets. Texas lawmakers also reached consensus last year on a bill to force the closure of some charters, but it was part of a broader legislative package that died. (“Ohio Mandates New Tests for Charters,” July 27, 2005.)

Mr. Hess said the recent legal challenges to orders to close charter schools suggest that “charter accountability is no panacea.”

“It’s an imperfect process … subject to various political pressures,” he added. “Its efficacy can’t be taken for granted.”

What Is Fair?

Arizona is generally deemed to have one of the loosest charter laws, making it relatively easy to get schools up and running. With some 450 charters, it has more than any other state but California.

Paulden Elementary, a school serving about 75 students, was started in 2001 in a rural area some 30 miles north of Prescott, Ariz.

“I could go somewhere else and life would be a lot easier,” said Kay Deliman, the principal, who started the school with her husband, Dennis Deliman. “But I believe in the kids out here; I believe in everything we’re doing.”

An independent audit of the school in 2003 found several problems, including failure by the school to have fingerprint-clearance cards and criminal-history checks for some staff members, failure to abide by the state’s open-meetings law, and inaccurate reporting of student-attendance data.

In voting to close the school last spring, the state charter board cited the audit’s findings, among other reasons. No mention was made of academics, which is not unusual; poor academic performance is rarely cited as the chief reason a school should close.

The school claims in its lawsuit that the state failed to give Paulden Elementary sufficient opportunity to correct problems and contradicted some of the findings of fact offered by an administrative-law judge who reviewed the school’s situation, among other issues.

Leonidas G. Condos, a lawyer representing the school, said all the compliance issues have been resolved, and noted that the administrative-law judge had concluded before the state decided to shut the school that its charter should not be revoked.

“The real story is there were certain things the audit found to be deficient, which were all fixed,” he said. “Everybody is subject to the decision or whim of the board, even if you fix everything, which doesn’t seem fair.”

But Kurt M. Davis, the president of the state charter board, defended the decision.

“There was a callous disregard for the contract, for state law and federal requirements, and it is not fair to the taxpayers of Arizona, and it is certainly not fair to the parents of the children,” he said.

Mr. Davis said Arizona has a deliberative process for closing schools, and the decision to revoke Paulden Elementary’s charter was based on several “very serious matters,” especially the fingerprinting problems.

“The board doesn’t just meet one day and your [charter is] revoked,” he said. “The board is not made up of anti-charter-school zealots … put there to create misery for charter schools.”

Oral arguments in state superior court are scheduled for later this month, and the school is being allowed to stay open until its legal claims are resolved.

‘On Death Row’

In Boston, Roxbury Charter High Public School is battling in court a state decision to close the school. A court has allowed the school to remain open until a final judgment is rendered.

Late last month, a Suffolk County Superior Court judge backed the state’s decision to close the school, but school leaders say they intend to appeal to a three-judge panel.

“We’re going to continue to operate and go forward,” said William Owens, the chairman of the school’s board and a former Massachusetts state senator.

The state cited several issues in deciding to close the school, arguing that it was not financially viable, did not have a governance and administrative structure that provided enough oversight of the school operations, and was not complying with substantial terms of its charter. For instance, the state said the school had not developed an individual learning plan for each student, as promised in its charter, and had not administered certain standardized tests to students that it said it would.

“As far as we’re concerned, they should have shut down a while ago,” said Heidi Perlman, a spokeswoman for the Massachusetts Department of Education. State officials note that the student population has dwindled to fewer than 40 students.

But Cornelius J. Chapman, a school trustee, argued that the state has failed to recognize changes the school has made, and that the school’s finances are in far better shape than the state has indicated. He cited a recent financial audit that reveals a surplus of funds for the school. In court papers, the school asserts that the state’s order was arbitrary and not supported by sufficient evidence.

“We are doing nothing more right now than pursuing appeals that we have a right to,” Mr. Chapman said. “We have tried in the legal proceedings to introduce evidence of the changes that we have effected at the school.”

He said the school has outperformed most other high schools in Boston. “We are helping the students that charter schools are supposed to be helping,” he said, noting that the school serves largely low-income students. “We’re on death row, and we’re appealing.”

Grading in Florida

Two charter schools in Florida also found themselves on death row recently, but got off by resorting to the courts.

A state policy calls for the closure of charters that receive F grades under the state accountability system for two straight years. When the state education agency sought to enforce the policy in the case of two charter middle schools in Palm Beach—Delray-Boynton Academy and Riviera Beach Academy—the schools objected.

They were backed by the Palm Beach County school board, the authorizer, which voted last summer to keep them open despite the state order. But after the state threatened to withhold some of the district’s funds, the board reversed itself in August.

The schools then sued to stay open until their joint appeal could be heard by the state.

The schools contended that the state’s approach was faulty, because they were alternative schools serving high-risk students and so should not have been graded for the 2003-04 school year, which was the first of the two years in which they received F’s. The state did not assign accountability grades to noncharter alternative schools that year.

Beyond that, the schools said it doesn’t make sense to grade them the same way as other schools.

“They got kids who had basically already flunked out of the school system,” said Stewart L. Karlin, a lawyer who represented the two charter schools. “You can’t apply the double-F standard to these kinds of schools, because they’re taking kids who are substantially behind the curve already.”

A circuit court judge in West Palm Beach issued an injunction in August saying the schools should stay open temporarily and called for mediation. Ultimately, the state, the district, and the schools agreed in October that the schools would lose their charters but stay open, said Janice S. Cover, an assistant superintendent for the 180,000-student Palm Beach system.

The district has entered into a contract agreement with the two former charter schools under which they will be “private-provider alternative education schools,” she said.

Under the new arrangement, she said, the district is now the schools’ governing body. The schools’ leadership and staff are largely unchanged.

“We as the school district will now have a say-so in the kind of services that the children will be getting, whereas in the past, the governing boards of those schools made those decisions,” Ms. Cover said. “With general oversight, we’re hoping things will change for the children at those schools.”

Pros and Cons

Some charter experts worry about asking courts to decide a school’s fate.

“Courts adjudicate on the basis of rights, which makes them lousy for resolving all kinds of societal and policy disputes,” said the AEI’s Mr. Hess. “When you get into court, you’re bringing to bear the entire legal apparatus. … Decisions are precedent-setting.”

And, he said, judges are experts on the law, not on schools.

“I have found that courtrooms really don’t have a good understanding of the reality of running schools, and running systems of schools,” added Mr. Richmond of the charter school authorizers’ group.

But Marc D. Kenen, the executive director of the Massachusetts Public Charter School Association, said that even while his group did not oppose the state’s determination for Roxbury Charter to close, he sympathizes with taking a challenge to court.

“I think it’s important for schools to have an appeals process beyond the authorizer,” he said, “so I didn’t have a problem with the courts being drawn in.”


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