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Ohio Lawsuits Revive Long-Standing Clash Over States’ Charters

By Erik W. Robelen — October 16, 2007 5 min read
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Ohio’s new attorney general is turning to the court system to shut down charter schools he argues have shown consistently poor academic results, using what appears to be a novel legal strategy that some analysts suggest could be attempted in other states.

In a state where charters have long faced organized resistance, Marc Dann, a Democrat, in September filed separate lawsuits targeting three charter schools in the Dayton area. The cases hinge not on the state’s charter school law, first passed in 1997, but rather on what Mr. Dann says is the schools’ status as charitable or public trusts under state law.

In the three complaints, filed in the Court of Common Pleas in Montgomery County, the attorney general contends that the schools’ “persistent failure to even come close to meeting” state standards shows that they should be closed.

The lawsuits have alarmed some advocates for charter schools. The state currently has 328 charter schools.

“This is an unprecedented action on the part of the attorney general,” said William J. Sims, the president and chief executive officer of the Ohio Alliance for Public Charter Schools, a pro-charter advocacy group. “The implications nationally for charter schools are huge if the attorney general were to succeed in something like this.”

‘Too Many Failing Schools’

Ohio has long had one of the most politically charged environments nationwide when it comes to debate over the independent public schools, and charters have repeatedly faced court challenges. Last year, the state supreme court upheld the state law against one such challenge by the Ohio Federation of Teachers, an affiliate of the American Federation of Teachers, and other charter critics. (“Ohio Supreme Court Narrowly Upholds State Charter Law,” Nov. 1, 2006.)

The new lawsuits are tied, at least in part, to a case filed earlier this year by the Ohio Education Association, charging that the state had failed to adequately enforce state law holding charter schools accountable for academic performance and other matters. As the new cases were filed in court in September, the OEA, an affiliate of the National Education Association, dropped its suit.

Also, recent accounts by the Columbus Dispatch newspaper, including a review of e-mails between the union and the attorney general, suggest the two worked closely together on the legal effort to sue charters, though the attorney general’s office insists the legal strategy was strictly of its own devising.

Legal Showdown

“The New Choices Community School … constitutes a charitable/public trust intended to provide its students with public education that exceeds state standards. Its persistent failure to even come close to meeting those standards shows that its continuance is impracticable.”
Marc Dann, Ohio Attorney General, State v. New Choices Community School

“Charitable and public-trust law has its place, but this isn’t it…. [Charter] schools are heavily regulated by the state, and there’s a system in place for regulating the schools, monitoring performance, and taking appropriate steps when school performance is lacking. … We’re very surprised that [the attorney general] would go to such great lengths to try to shut down charter schools outside the statutory scheme put in place by the Ohio General Assembly.”
Chad A. Readler, Lawyer, New Choices Community School

At the same time, even some staunch national advocates for charters have raised concerns about the uneven quality of both Ohio charter schools and their authorizers, and called for changes to shut down some of the state’s lowest-performing charters.

The state legislature did enact a measure last year that specified conditions under which charters that failed to meet certain academic criteria over time would automatically close. But the soonest a school could be forced to close under the law is 2009.

“That’s too many days for kids to be in schools that don’t perform their charitable mission or educational mission,” said Leo A. Jennings, a spokesman for the attorney general.

The schools targeted in the lawsuits, he said, are “among the worst examples in the state, and so we decided to begin with them.”

He said the attorney general is looking at both academic measures and financial issues in targeting schools for closure.

For the three charters selected—the Colin Powell Leadership Academy, the Moraine Community School, and the New Choices Community School—the lawsuits outline multiple indicators that the schools have fallen well short of state academic standards. For instance, it notes that all the schools have repeatedly been given ratings under the state accountability system of “academic emergency,” the lowest ranking.

And Mr. Jennings predicted there would be more such suits, though he said it wasn’t clear how many.

“We are supportive of the attorney general’s aggressive approach,” said Rachelle E. Johnson, the director of legal services for the OEA. “[Charter] schools should be held accountable for managing [public] funds and for appropriate academic progress.”

But Chad A. Readler, a lawyer representing New Choices Community School, in Englewood, argues that the effort is wrongheaded.

“Charitable and public-trust law has its place, but this isn’t it,” he said. “[Charter] schools are heavily regulated by the state, and there’s a statutory system in place for regulating the schools, monitoring performance, and taking appropriate steps when school performance is lacking.”

He added, “We’re very surprised that he would go to such great lengths to try to shut down charter schools outside the statutory scheme put in place by the Ohio General Assembly.”

‘Backdoor Way’

The attorney general is taking what analysts describe as an unusual legal approach, arguing that the charters qualify as charitable trusts, and are therefore subject to provisions of Ohio law that regulate fiduciary duties. Mr. Readler says a similar approach could well be taken by attorneys general in other states.

“All states have some general regulatory system governing charitable or public trusts,” he said. Some analysts see politics at the root of the effort.

“What the attorney general is doing is a backdoor way to go after charters, driven more by his commitment to supporting the teachers’ unions and their interests than in doing right by children,” said Terry Ryan, the director of Ohio programs and policy for the Thomas B. Fordham Foundation, a Washington-based think tank that serves as the authorizer for nine charter schools in Ohio.

Mr. Ryan also raised questions about how the schools were targeted.

“He’s picked schools that have weak performance, but at least [at] one of the three, they have a defensible track record,” Mr. Ryan said, noting that the New Choices charter is a second-chance school targeting students who have dropped out elsewhere.

Gary L. Hardman, who leads New Choices, a Dayton school serving more than 260 students in grades 6-12, said of his school: “This is a rescue mission for kids who would be on the street if we did not step up.”

The school recently showed evidence of improvement. This past year, its status under the state accountability system was lifted to “academic watch,” the second-lowest category. It received a letter on Sept. 25 from the state board of education praising its “exemplary performance.”

“Our attorney general doesn’t know my kids,” Mr. Hardman said, “hasn’t been to my school.”

Shane K. Floyd, the newly hired superintendent of the Colin Powell Leadership Academy, in Dayton, which serves more than 210 students in grades K-8, said he believes the school is getting better. It has a new principal and replaced most teachers for this school year. He said he hopes the efforts will persuade the attorney general to change his mind.

“Things are turning around,” he said. “We’re quite pleased with where we’re heading.” Officials at Moraine Community School, in Moraine, could not be reached for comment last week.

A version of this article appeared in the October 17, 2007 edition of Education Week as Ohio Lawsuits Revive Long-Standing Clash Over States’ Charters

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