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In Congress and the courts, charter supporters seek to undo grant revisions

Linda Jacobson | September 29, 2022

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UPrep Science and Math Middle School in Detroit, Michigan, is among the charters that advocates say would be affected by the Education Department’s new regulations for federal charter school funding. (Michigan Association of Public School Academies)

Charter advocates were partially successful three months ago in getting the U.S. Department of Education to ease what they saw as onerous new rules for a program that provides start-up funds to new schools.

But that compromise hasn’t stopped advocates in two states and members of Congress from trying to remove the remaining changes to the $440 million Charter Schools Program. They argue that the tighter criteria run counter to the law’s intent to increase high-quality charter schools.

Republicans want to use the Congressional Review Act — a seldom-used law that allows members to overturn regulations issued by federal agencies — to stop implementation. And in August, charter organizations in Michigan and Ohio sued the department over changes that, among other things, are designed to create more racially diverse charter schools and increase transparency for schools run by for-profit companies.

Advocates say they never had a chance to weigh in on the changes.

“If you read the [charter school] statute, there is the importance of consulting with the field,” said Nina Rees at the National Alliance for Public Charter Schools. “They never did. They introduced the rule without notifying us.”

The revisions urge charters to partner with their local schools and to prove they’re not opening in communities where local public schools are under-enrolled. The Alliance was among the more than 26,000 groups and individuals that submitted comments on the new rule. So did Louisiana state Superintendent Cade Brumley, who sent a letter to Education Secretary Miguel Cardona expressing his opposition.

“In this moment in history, we should not be restricting options for families,” he told The 74.

“We should be expanding them.”

Even so, the state is among the 10 that applied for funding last month. Brumley said the funding is an “important selling point” for attracting high-quality charter operators.

The department also received eight applications from developers who want to launch or expand schools and 15 applications for “national dissemination” grants, a separate fund that the secretary can award to groups, like the Alliance, that support charters.

The department is expected to announce grant recipients by Friday, and will open up applications for charter management organizations later this fall.

On Wednesday, the Thomas B. Fordham Institute, the Ohio plaintiff in the lawsuit, released a report that takes a closer look at results for charters in the state that outsource some or most operations to for-profit companies. Such arrangements draw fire from those opposed to commercialism in education.

The researchers found some advantages of such schools. They spend $581 more per student in the classroom and $699 less per student on administrative costs than charters that don’t contract with for-profit operators — and students also get more instructional time.

But for-profit and virtual schools, they wrote, also “deserve extra scrutiny.” They have more first-year teachers, higher chronic absenteeism and lower student achievement.

“We shouldn’t view for-profit charter schools as a monolith,” Fordham’s Amber Northern, senior vice president for research, and President Michael Petrilli wrote in the foreword. “We need to focus on their academic progress with students, not the tax status of their primary vendor.”

Going after government overreach

Many Democrats, however, want to see for-profit charters cut off from federal funding. Carol Burris, executive director of the Network for Public Education, said the department’s changes increase accountability.

With Democrats in control of Congress, Rees noted that there’s little chance Republicans would succeed this year in using the Congressional Review Act. Even if they were able to pass it, President Joe Biden would veto it.

But if Republicans take the House in the midterm elections, Burris said they could try to use the procedure again next year.

During the Trump administration, Republicans used the legislative strategy in education twice in 2017 — to end an Obama-era requirement that states rate teacher preparation programs and to grant more flexibility in how they designed their accountability programs under the Every Student Succeeds Act.

The Republicans’ current attempt to use the Congressional Review Act, led by Sen. Tim Scott of South Carolina and Rep. John Moolenaar of Michigan, “shows a clear understanding from the people who actually wrote the law that what the department has done here is unlawful,” argued Caleb Kruckenberg, an attorney with the Pacific Legal Foundation, a libertarian law firm representing the plaintiffs in the federal lawsuit.

The 2015 expansion of the program, he added, “pointedly left no room for the Department of Education to add in new criteria or conditions for grant applicants.”

The lawsuit, meanwhile, seeks to capitalize on a U.S. Supreme Court ruling earlier this year in which the conservative majority restricted the Environmental Protection Agency’s ability to set limits on carbon emissions.

Republicans welcomed the ruling as a way to curb government overreach in other federal agencies as well.

Kruckenberg said he hopes the case brought by the states will “set a legal precedent clearly declaring that any rule issued by the department to try to set new criteria for the [Charter Schools Program] would be unlawful.

The state complaint argues that charters affiliated with the Michigan Association of Public School Academies and the Fordham Institute will have a hard time meeting the new criteria. The schools predominantly serve minority students, are located in districts that have “demonstrated hostility to charter school expansion” and won’t be able to prove that district schools are “overenrolled.”

The Biden administration has to respond to the complaint by Oct. 12.

For now, Burris said she’s more concerned Republicans could use the Congressional Review Act to roll back changes than she is the litigation. “It will weave through the courts,” she said, “so that is a good thing.”

This article was published in partnership with The 74. Sign up for The 74’s newsletter here.

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