Charter Schools Are… [Public? Private? Neither? Both?]

…Directly Publicly Subsidized, Limited Public Access, Publicly or Privately Authorized, Publicly or Privately Governed, Managed and Operated Schools

Let’s break it down:

Directly publicly subsidized

Charter schools are directly subsidized by a combination of (primarily) state and local tax dollars (state dependent) transferred to charter schools on the basis of their enrollments.

This funding is analogous to a directly subsidized voucher program that would transfer tax dollars to private schools on the basis of students signing up for the voucher program.

This funding is also analogous to the state aid that is delivered on a pupil enrollment basis to local public school districts, but the funding is different from local tax dollars that are raised based on the values of taxable properties and are not dependent on pupil enrollments.

Note that traditional public schools or charter schools may receive a variety of non-government (non-taxpayer supported) revenues including private gifts, private foundation grants, fees/event receipts, facilities rental, etc.

The direct subsidy for charters is distinctly different from indirect subsidies like tuition tax credits, which provide the opportunity for individuals or other entities to receive a full tax credit for donating funds to an independently operated/managed entity which then distributes those funds as vouchers or scholarships.

An important legal distinction is that the U.S. Supreme Court has recently decided that when tuition tax credit funds are used to support religious education, taxpayers have no standing to challenge that distribution as a distribution of their tax dollars, due to the indirect nature of the subsidy. See: ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v. WINN

Limited Public Access

Charter schools are limited public access in the sense that:

  1. They can define the number of enrollment slots they wish to make available
  2. They can admit students only on an annual basis and do not have to take students mid-year
  3. They can set academic, behavior and cultural standards that promote exclusion of students via attrition.

[may vary and/or be restricted under state policies]

A traditional public school or “district school” or “government school” must accept students at any point during the year and but for specific disciplinary circumstances that may permit long term suspensions and expulsions. Traditional public schools cannot shed students who do not meet academic standards, comply with more general behavioral codes or social standards, such as parental obligations.

Imagine a community park, for example, that is paid for with tax dollars collected by all taxpayers in the community, and managed by a private board of directors. That board has determined that the park may reasonably serve only 100 of the community’s 1,000 residents. The amount of tax levied is adjusted for the park’s capacity. To determine who gets to use the park annually, interested residents subscribe to a lottery, where 100 are chosen each year. Others continue to pay the tax whether chosen for park access or not. The park has a big fence around it, and only those granted access through the lottery may gain entrance. Imagine also that each of the 100 lottery winners must sign a code of conduct to be unilaterally enforced by the private manager of the park. That management firm can establish its own procedures (or essentially have none) for determining who has or has not abided by the code of conduct and revoke access privileges unilaterally. This is clearly not a PUBLIC park in the way that scholars such as Paul Samuelson describe public goods.

Note that while public districts may limit slots to individual schools, especially magnets (which are clearly also limited public access), districts must accommodate all comers (a charter school operated by a district would be part of a system that is not limited in enrollment). That is, they cannot limit total slots in the district, regardless of physical plant constraints. Districts may also limit slots at schools through assignment policies and choice-based enrollment plans. But again, districts cannot limit total slots or mid-year access. This is an important difference between districts and charters. State laws may require that under-subscribed charters must admit students mid-year. But this requirement would not apply to those charters that are fully subscribed and/or have waiting lists.

Another note: Unlike a pure public good, both traditional public schools and a public park would be subject to diminishing value to each participant as they become overcrowded. That is, at some point, as additional individuals access the park or the school, it begins to diminish the value that each individual receives. So  even the more “public” park or school isn’t really a pure public good. My point here is that there are still substantive differences between traditional public schools and charter schools.

Put very simply, the ability to decide precisely how many students a school will serve, and wait list/deny others, makes charter schools significantly more limited than public school districts in their public access.

Save for another day the topic of restrictive real estate development and local public school districts.

Publicly or Privately Authorized [contingent on state policy]

States have varied policies regarding the entities that may grant charters for charter schools to commence (and continue) operations and draw on public tax dollars to serve children who subscribe. In some states, only government agencies themselves can authorize charter schools and therefore may also un-authorize them. In other states, statutes grant authority to private entities to grant and revoke charters. These private entities tend to be non-profit entities, including universities which may be quasi-public, governed by boards of directors that are private citizens, not elected government officials.

That boards of directors or governing bodies of authorizers are not public or elected officials is an important delineation. Indeed statutes may declare that they must comply with all statutes and regulations pertaining to public officials, but such requirements are not implicit.

The non-public, non-government status of governing boards of charter authorizers has significant legal implications regarding such issues as a) whether meetings are subject to open meetings laws, b) whether records are subject to open public records laws. Further, recourse for individuals – employees or students – against these private entities differs than it would if these entities were public.

Publicly or Privately Locally Governed [contingent on state policy]

States have varied policies regarding the local governance of charter schools, but many states require that the local governance of independently operated charters take the form of a board of directors which consists of self-appointed private citizens, not elected or appointed public officials. States also permit local public school districts to operate their own charter schools which remain under the authority of their local board of education which is either directly elected or consists of appointed government officials (usually mayoral appointments).

Again, the distinctions are important, having significant legal implications for taxpayers, students and employees.

As with authorizers, private boards of directors might invoke the claim that they are not subject to open meetings laws or open public records requirements. Unless explicitly stated in state charter laws, this argument might be accepted, since private boards of directors are not implicitly subject to these requirements.

Publicly or Privately Managed and Operated [contingent on state policy]

Finally, whether governed by the public officials of the local public school district, or by a board of directors of private citizens, those governing boards might choose to contract a private entity to manage and operate the school.

That entity might be the entity with which the employees of the school hold their contracts. This has significant implications for employee rights, as we have seen in the 9th circuit ruling in Caviness v. Horizon Community Learning Center. (teachers do not have certain legal recourse against private employers under Section 1983 of the U.S. Code which applies only to “state actors.”)

It also has implications for public access to information on teacher contractual agreements. Private managers of charter schools may invoke their private status, along with their private governing boards, to claim that teacher contracts are not subject to open public records requests, even though those teachers’ salaries are paid for with public tax dollars.

They may similarly invoke claims of their private status in limiting access to meetings. Again, unless explicitly stated to the contrary in state law, charter managers and their governing boards may succeed in avoiding disclosure.

Private managers of charter schools, and private boards governing charter schools may also choose to require student disciplinary codes and parental participation regulations and may invoke provisions in those codes which allow them to unilaterally dismiss parents or families (to the extent permissible under state charter laws). Because the managers and governing boards are not state actors, student and family recourse may be limited.

Scholars Preston C. Green, III, Erica Frankenberg et al. (Penn State University) have a forthcoming article discussing the implications of the Caviness decision regarding student rights in privately governed and managed charter schools. They note:

Although charter schools are frequently portrayed as “public schools,” a recent United States Court of Appeals decision, Caviness v. Horizon Learning Center (2010) suggests that charter schools may not have to provide constitutional protections for their students.  Therefore, contract law may apply to conflicts between charter schools and their students, as is the case in private schools.  Private schools have a great deal more latitude over disciplinary issues than public schools (Shaughnessy, 2003).

A few final thoughts…

These are important distinctions. They are not trivial.

Teachers choosing to sign contracts with private governing boards and/or managers of charter schools should understand that they likely do not have the rights of public employees, unless explicitly stated.

So too should parents of children attending privately governed and managed charter schools.

Further, so too should taxpayers and/or citizen/voters understand that depending on how the courts see it, and depending on whether charter laws are sufficiently detailed in their requirements, privately governed and privately managed charter schools may not be required to fully disclose financial documents pertaining to the expenditure of public funds, or to permit access to their meetings.

The fact that many state charter laws and federal regulatory references to charter schools refer to them as “public” is a hollow proclamation that has little legal or practical bearing on the more nuanced distinctions I address here.

Those who casually (belligerently & ignorantly) toss around the rhetoric that “charters are public schools” need to stop. This rhetoric misinforms parents, teachers and taxpayers regarding their rights, assumptions and expectations.

I’m under the impression that many teachers considering working for, or currently working for privately operated charters do not necessarily understand how their rights may differ from those of traditional public school teachers and I suspect the same is true for parents and students. That’s certainly not to say that all privately managed charter schools would take advantage of their increased latitude in negative ways. There are some good private management companies and perhaps some bad ones, just like there are good private schools and bad ones (I had the pleasure of working at one of each!).

Those who characterize charter schools as purely private also don’t fully capture the nuances laid out above, though some charters – by virtue of the many layers of organization laid out above and by virtue of emerging case law – may be moving in that direction.

Note that these legal debates over whether charter schools are state actors or private entities only come about because, when an issue is raised regarding open records or meetings, or employee or student rights, it is the lawyers for the charter school that invoke the claim that they are private entities. Like here! or here!   I surely hope those invoking their private status when legally convenient are not among those proclaiming their public status when politically convenient. You just can’t have it both ways.

12 thoughts on “Charter Schools Are… [Public? Private? Neither? Both?]

  1. On the limited public access point, a quite similar analysis could be applied to traditional public schools too, so as to show that they equally fail to be “public” in the same sense that a park open to all comers is.

    At my children’s public elementary school, for example, there is only a limited number of slots (just like for charters); no one is allowed to attend who isn’t assigned; even if you’re in the zone for the school, and even if your kids are already at that school this year, you have to sign up for next year by filling out handwritten registration cards; if you fail to do so, your kids can be assigned to some different elementary school across town; and the school most certainly does have the ability to expel kids.

    So by your same analogy, “this is clearly not a PUBLIC park [school].”

    1. I agree that there are shades of limited access. Clearly, magnet schools are limited access.

      As for your situation, I would argue that the district is not limited access (I don’t assume they can be) but they have decided through their student assignment plan to distribute access to individual schools. That is different. The district must accommodate your child. The district, the overarching governing body must be open to all comers and regardless of timing.

      Yes, public school districts may suspend or expel students but would typically have far less latitude to do so than either a magnet school or charter school, but this may vary by state statute.

      1. Yes, there are a few differences in “public access” between a traditional public school and a charter school, but those differences are trivial compared to how different both of them are from a public park.

      2. Would agree for the most part. The traditional public district lies somewhere between the public park and the charter school. Was simply pointing out that even the public park could be modified to the equivalent of a privately managed charter park, so to speak. Have added clarifications in body of post.

  2. In New Jersey charter schools are indeed required to take students mid-year. The funding is recalculated on the final count of daily enrollment as of June 30, so we have a financial incentive for doing so, plus the specifics regarding the ongoing lotteries and waitlists are specified in the regulations as an ongoing process throughout the year. (NJAC 6A:11-4.4-4.5)
    New Jersey charter schools are governed by the exact same suspension and expulsion rules as all other public schools in the state. We are permitted, just as public schools, to communicate with parents when students are displaying behavior issues. We do this often because we care about our students and want them to be able to function in society as adults. Public schools do this too. Sometimes parents leave public schools and enroll their child in a charter because they are at a loss for what to do about their child’s issues and they are tired of being called so often by the school. Sometimes parents leave charter schools for the same reasons. But we are not legally allowed to suspend, expel or counsel them out. (NJAC 6A:11-4.13) (NJS 18A:36A-11)
    In New Jersey, charter school Boards of Trustees are public officials. We all must comply with open meetings and open records laws. (NJAC 6A:11-4.11) We all file financial disclosure and conflict of interest forms. Some charter schools hold elections for trustees, others are appointed just as a Board of Education from a Type II New Jersey Public School district.
    All our employees are public employees enrolled in the New Jersey public employee pension system and subject to tenure and seniority rules if certified.
    (NJS 18A:36A-14)

    1. My point is that the types of provisions as you note above only apply to the extent they are explicitly stated. They are not implicitly accepted.

      Further, just because charter employees are enrolled in the NJ pension system and subject to certain seniority and tenure rules, and certification requirements does not necessarily mean that they would enjoy the same legal protections as public employees in every regard, especially where their contract is held with a private entity (governing body or management company). I believe that remains an open question even in NJ.

    2. Note that a public school district can’t simply say that it’s slots are filled, or that it has a wait list. The district must accommodate the student, regardless of timing. The district may have a complex student assignment plan that closes off slots in certain schools, but the district as the governing entity cannot simply limit the total number of slots, even where physical facilities are constrained. That’s a substantial difference.

  3. Kathy – You did a great job identifying what NJ charters can and cannot do.

    I appreciate that in public education what is explicitly stated is not always applied. Case in point – the many urban traditional public schools that fail children year after year and fall far short of complying with state law and code. However with charters, just like traditional public schools, the responsibility for holding the schools accountable falls with the authorizing/supervising agency (DOE) and the public who have a civic responsibility to serve as watchdogs.

    Vocational, theme and magnet schools have limits on enrollment. Although a district must accept all students, not all students within the district have equal access to quality programs within the district. Yes, charters have limits on enrollments, which they identified in the application and had approved by the DOE, but there are trade-offs which they accepted as well. Traditional public schools have a revenue stream fixed as of the October 15 count – many of which we know are inflated. I have personally witnessed one school in a district drop 10% of the student population on October 16th (some of whom had been dead!) No charter revenue is guaranteed. As families “Tiebout” and exercise their right to walk away so do the dollars and the charter must then adjust.

    The charter system may be far from perfect, but in good conscience no child should be forced to stay in a school where there is no chance of obtaining anything resembling a quality education. For them a charter is the only option.

    1. Indeed, in New Jersey, it is a government entity that presently serves as the sole authorizer, which is something that varies across states and is an important distinction. Of course, NJ is often criticized by national organizations for this restriction.

      But again, my point here is that on the publicness/privateness continuum, there are many legal issues that differ as a function of the public/private status of governing boards and management companies. These issues affect student rights and teacher rights. And that’s not to say that one cannot work for an awesome privately managed charter school, private school or private corporation. Public-Private here is merely a technical/legal distinction and one that occurs at many layers of this convoluted system.

      New Jersey arguably requires a greater deal of publicness than some other states. However, I think some/many issues are left undecided. Would all NJ charter operators/management companies readily publicly disclose their contractual agreements with all teachers, administrators and all outside vendors? Do they?

      Only a small handful of NJ Charter Schools have submitted their contractual agreements here:

      I explain in my post the issue of magnet schools and vocational schools. The bottom line is that districts as the organizing unit of public schooling cannot deny admissions. They can offer schools that do. They can orchestrate complex assignment systems that cap individual schools. But overall they cannot deny. And thus they are less limited in their public access. That’s the only distinction I’m trying to make here.

      That some schools, or even many fall short of their obligations is a separate issue. An issue for which the state holds the ultimate constitutional responsibility in New Jersey.

  4. Bruce is doing an important service in this blog. Charter schools are always characterized as “public schools.” Many parents assume that they would receive the same constitutional rights in charter schools as other public schools. In fact, I use to think this.

    My thinking changed when I spoke at a workshop for charter school attorneys. Several attorneys insisted that they were not beholden to federal constitutional and statutory provisions. They cited the Ninth Circuit’s Caviness decision, in which the Ninth Circuit held that a charter school was not a state actor with respect to employment issues. These attorneys insisted that the same logic applied to student issues as well.

    This is especially concerning for black males. Researchers have consistently found that black male students are disproportionately subjected to school discipline, such as suspensions and expulsions. In public schools, the Due Process Clause protects them from arbitrary suspensions and expulsions. For example, in Pennslyvania,schools must provide students with an informal hearing for out-of-school suspensions from 4-10 days (22 Pennsylvania Code § 12.8, 2012). The school must provide parents with written notification of the time and the place of the hearing. The student has the write to speak and produce witnesses at the hearing as well as the right to question witnesses present at the hearing.
    Pennsylvania regulations also require formal hearings for school exclusions of more than 10 days (22 Pennsylvania Code § 12.8, 2012). Formal hearings require the school to provide parents with a copy of the expulsion policy, notice that the student may obtain counsel, and the procedures for the expulsion hearing. The student has the power to cross-examine, testify, and present witnesses. Further, the school must maintain an audio recording of the hearing.

    If charter schools are not public actors, then constitutional law would not apply. I have argued that courts might apply contract law, as is generally the case for private schools. If a private school “has clearly stated the rule, preferably in writing, and a parent chooses to have his or her child attend the school, a court will generally uphold the rule” (Shaughnessy, 2003, p. 527). For example, in Flint v. Augustine High School (1975), a Louisiana private school expelled two students for violating its no smoking policy. The school’s handbook called for a fine of $5 for the first offense, and a penalty of either a $10 fine or an expulsion for the second offense. The state court of appeals upheld the suspension of the students. In reaching this decision, the court declared that private institutions “have a near absolute right and power to control their own internal disciplinary procedure which, by its very nature, includes the right and power to dismiss students” (p. 234). Although the court allowed that due process protections could not “be cavalierly ignored or disregarded,” it held that “if there is color of due process – that is enough” (p. 235).

    In Hernandez v. Bosco Preparatory High (1999), a New Jersey court for the first time addressed the question of the procedural rights of expelled private high school students. It found that constitutional law did not apply to private high schools. Interestingly, the court found that high school students would receive less protection than private university students.

    I raise these points because parents may be unwittingly giving up their constitutional protections to attend charter schools. One has to wonder whether parents would enroll their children if they were aware of this possibility.

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