1. BRETTE KAPLAN, ESQ. BKAPLAN@BRUMAN.COM STEVEN SPILLAN SSPILLAN@BRUMAN.COM BRUSTEIN & MANASEVIT, PLLC FALL FORUM 2011 Charter Schools: Where We Are & Where We Are Going

2. Why Charter Schools? Charter schools gained prominence during the Bush Administration -- following passage of No Child Left Behind Obama Administration continues to favor public charters schools Congress poised to increase attention 2

3. Advances for Charters Creation of Charter School Program in 1994 Ongoing discussion of applicability of NCLB accountability measures Charter school requirements under Race to the Top Key point of ESEA reauthorization 3

4. Conflicting Theories of Action Conflicting theories of action:  Charter: Tight about the ends and loose about the means  NCLB: Systemic about the means and about the ends NCLB requires systemic reform:  A “single, statewide accountability system”  Statewide professional qualification system  Cascading uniform sanctions and more! 4

5. Conflicting Theories of Action Charter schools, however, emphasize local control and autonomy at the school level Now, charter schools have to balance autonomy with some increased oversight  Non-regulatory guidance suggest that charters incorporate the Federal law as a floor, but this is problematic…. 5

6. Guidance Draft Guidance “The Impact of the New Title I Requirements on Charter Schools” (2003)  Revised Guidance released (July 2004) http://www.ed.gov/policy/elsec/guid/charterguidance03.doc http://www.ed.gov/policy/elsec/guid/charterguidance03.doc Charter School Program Guidance (April 2011) http://www2.ed.gov/programs/charter/nonregulatory- guidance.doc http://www2.ed.gov/programs/charter/nonregulatory- guidance.doc 6

7. Guidance: Pivotal Points Most oversight requirements, as they apply to charters, are in the guidance  Lacks authority of formal rules Knowing a charter school’s legal designation Identifying the oversight agent under State charter school law 7

8. Guidance: Legal Designation State law defines whether a charter school is either a:  Charter school that is part of an LEA (similar to a traditional public school), or  LEA-charter school (school serves as its own district) Guidance uses the above designations Some State laws are not clear on this point -- making implementation an adventure! 8

9. Guidance: Chartering Agency Authorized Public Chartering Agency:  An SEA, LEA, or other public entity that has authority pursuant to State law and approved by the Secretary to authorize or approve charter schools. Section 5210(4). The charter school authorizer will differ depending on State law  University  School District  State Department of Education  Other chartering entity The responsible entity for accountability will vary depending on State law. 9

10. Applicability of the ESEA - Assessments; - Adequate Yearly Progress; - School Improvement; - Choice; - Supplemental Services; and - Corrective Action & Restructuring 10

11. Accountability Program: Section 1111 Charter schools must comply with every aspect of NCLB’s accountability system: Held to the State-developed content and academic achievement standards Participate in the State assessment system Compared to the State-developed measure of adequate yearly progress (AYP) and Identified for school improvement, corrective action or restructuring when failing to make AYP, if school receives Title I funds 11

12. Accountability Program: Section 1111 All students must be “proficient” by 2013-2014 Disaggregation by student subgroup:  Racial & ethnic minorities  Students with disabilities  English Language Learners  Students from low income families 12

13. Accountability Program: Section 1111 To make AYP, the school or LEA must meet or exceed the State’s annual measurable objectives  All students, and each student subgroup must make AYP  95% student participation  Safe harbor provisions  Statistical “N” size and confidence interval  LEP student exclusions  Students with disabilities exclusions  Approved State pilot growth model may apply 13

14. Implementing Accountability State’s charter school law determines responsible entity Usually, the authorizer is responsible:  “The charter authorizer is primarily responsible for holding charter schools accountable under the Title I, Part A provisions.”  Unless State law designates the SEA for charter school accountability.  See Guidance at A-2 If charter within LEA, LEA has grants management responsibilities 14

15. Implementing Accountability: Capacity is Suspect Guidance: SEA may make available to authorizers various Title I resources to perform NCLB required duties, but not legally required. Examples include:  1% of Title I allocation  4% School improvement Resource/capacity issue makes NCLB enforcement by authorizers more challenging 15

16. Accountability: SEA Liability Guidance: Title I State accountability plan must be consistent with State charter law & may not “replace or duplicate” role of authorizer But what if authorizer fails to take action?  Grants management principles apply -- State ultimately responsible for State-administered programs  According to the guidance: “The SEA is ultimately responsible for implementation of, and compliance with, the Title I requirements by all public schools in the State that receive Title I funds, including both traditional public schools and charter schools.”  Guidance does not address where that responsibility might lead to a conflict under the State charter school law 16

17. Charter and ESEA Conflict Guidance states that authorizers may incorporate State’s AYP definition into charter, but not required But what if conflict?  Example: What if charter provides for 5% improvement, but State’s AMO is to improve 10%?  Federal law is supreme, 10% would govern for AYP  Should charter be amended in this case? Not required by ESEA  Can SEA/LEA/authorizer force charter to be amended? Not explicitly required 17

18. Charter and ESEA Conflict Charter may contain more rigorous accountability requirements than State plan If charter school fails to make AYP, even if meets contractual requirements with authorizer, ESEA consequences must be carried out 18

19. School Improvement: Section 1116 19

20. Public School Choice How choice is implemented depends on status of charter school:  If charter school is part of LEA, then LEA’s responsibility  If LEA-charter school, then school or authorizer’s responsibility 20

21. Public School Choice (con’t) Duty of LEA/Authorizer/entity under State law to:  Promptly inform parents of: identification, what ID means, what school is doing to improve, what help school is getting, how parents can become involved, options for choice/SES  Notify parents of right to return to “home” public school  Ensure that the charter school receives technical assistance  Review school’s improvement plan through peer- review process 21

22. Public School Choice (cont’d) If charter is part of an LEA…  The charter school may be subject to receiving choice students, as any traditional public school  This may be inconsistent with contents of charter 22

23. Public School Choice (cont’d) Charter school-LEAs must “to the extent practicable” work with local LEAs to create a student transfer agreement This is like a district where there is no viable transfer option States may allow SES in 1st year of school improvement if there is a failure to reach an agreement LEAs & charter school LEAs with no transfer options may offer SES in 1 st school year of improvement 23

24. Public School Choice (cont’d) Implications for LEA-charter schools:  If charter school is not authorized by LEA, charter school must agree to be a transfer option (i.e., LEA cannot mandate without school agreement)  See ED’s School Choice Guidance at E-1 (January 2009)  LEA-charter school defined as single school LEA  To “extent practicable” charter school must have cooperative agreement with neighboring LEA(s) to facilitate choice  If no agreement, parents must still be informed that student is eligible for choice, including return to “home” public school, but that no choice option is available  May offer SES instead of public school choice 24

25. Supplemental Educational Services (SES) 25

26. SES: LEA Duties LEAs send annual notice to parents LEAs must arrange for services and enter into agreements with SES providers LEAs must abide by FERPA Possible conflict with charter if charter school has exclusive contract with tutoring provider 26

27. SES: LEA Duties LEA charter schools must pay for SES on same basis as any other LEA Unless a lesser amount is needed, an LEA-charter school must spend an amount equal to 20% of Title I funds on: 1. Choice related transportation 2. SES or 3. Combination of 1 and 2 27

28. SES: LEA Duties In practice, because an LEA-charter school is not required to provide choice if not “practicable,” most LEA-charters will spend the 20% on SES (unless a lesser amount is needed) 28

29. SES: Eligible Entity Charter schools that are not identified for improvement are eligible to provide SES If charter schools are among the eligible entities to provide SES to students who qualify – charter schools must meet State requirements, it is not automatically granted 29

30. Corrective Action 30

31. Charter Corrective Action If charter school that receives Title I funds is unable to make AYP for 4 years, charter school is placed under corrective action  Independent charters should be treated as schools, not like LEAs, in corrective action  Only in the guidance Responsible entity (presumably authorizer) can reorganize management and take other actions consistent with State charter school law and accountability plan 31

32. Charter Corrective Action According to guidance, the appropriate entity has the responsibility to reorganize charter school management “consistent with State charter law and State’s accountability plan for its charters.” Guidance states that State charter law will determine if corrective action requires modification of the charter document. 32

33. Charters and Restructuring 33

34. Charters and Restructuring NCLB allows for LEAs to “reopen the school as a public charter school” This is one of 5 alternative governance options  Guidance is unclear regarding what is required if State law is silent on restructuring or if it conflicts with charter  Lots of open questions 34

35. Professional Qualifications Professional Qualification Requirements Do Apply to Charter Schools with one limited exception. 35

36. Highly Qualified Teachers (HQT) For HQT, teachers of core academic subjects: 1) State certification/licensing exam;* AND 2) Bachelors degree; AND 3) Subject matter competence 1) New elementary teachers: rigorous State test 2) New middle/secondary: rigorous test or major/coursework 3) Current teachers: rigorous test; major/coursework or High Objective Uniform State Standard of Evaluation * Only 1 st prong can be waived by charter schools if permitted by State law 36

37. HQT & Charter Schools Are charter school teachers required to be highly qualified under NCLB?  Yes. Charter school teachers must have at least a bachelor’s degree & must demonstrate competence in the core academic areas in which they teach. Charter school teachers must meet the certification requirements established in the State’s public charter school law, which may differ from the requirements for full State certification.  Highly Qualified Teachers: Improving Teacher Quality State Grants, Non-Regulatory Guidance (Rev. August 2005) 37

38. HQT Requirements The charter school authorizer bears the primary responsibility to ensure charter schools comply with the professional qualification requirements of the ESEA (including teacher quality requirements). 38

39. HQT Requirements According to ESEA, State plans were to “ensure that all teachers [including charter school teachers] teaching in core academic subjects … are highly qualified not later than the end of the 2005-2006 school year.” Section 1119(a)(2) ED postponed it until the end of the 2006-2007 year Postponed Enforcement in 2007-2008  Implementation of HQT plan 39

40. Paraprofessional Requirements High school diploma or equivalent; Post secondary education or assessment:  Completed at least two years of higher education; or  Obtained an associate’s degree (or higher); or  Passed a rigorous assessment that demonstrates knowledge and the ability to assist in instructing reading, writing and mathematics (or readiness in these areas) 40

41. Professional Qualification ESEA requires all LEAs (including charter school LEAs) to spend 5-10% of Title I allocations on professional development If all teachers and paraprofessionals in a charter school LEA meet professional qualifications don’t need to reserve funds for professional development 41

42. Charter School Program (CSP) Title V, Part B of the ESEA 42

43. CSP Generally The CSP is a targeted Federal grant program Designed to support the planning, development, and initial implementation of charter schools during their first three years of existence Provides dissemination grants to facilitate the sharing of practices between charter schools and other public schools 43

44. CSP Generally ED awards grants to SEA or to “eligible applicants”  If SEA does not apply, “eligible applicants” can apply directly to ED Program requires a State charter school law, and charters must meet a 12 part definition in Sect. 5210(1) (no waivers permitted for the definition of a charter school) 44

45. CSP Generally Start-up grants, may not exceed period of 3 years  Post-award planning and design of the educational program (18 month limit)  Refinement of educational results, methods for measuring progress, professional development of teachers who will work in school  Initial implementation of the charter school (24 month limit)  Informing community about school, acquiring necessary equipment and other educational materials, other initial operational costs that cannot be met from State or local sources  So, if 18 months on planning, only 18 more permitted for implementation 45

46. CSP: Dissemination Dissemination grants – 2 year period Purpose: Helping charters overcome:  Political conflict  Variations in quality  Challenges to meaningful collaboration/ experience sharing  Difficulties to “scaling-up” effective approaches  Isolation of the charter school community, to share experience with traditional public schools 46

47. CSP: Dissemination Only qualifying charter schools are eligible for the dissemination grant:  In operation for 3 consecutive years, and  Shown substantial improvement in student achievement  Have high levels of parental involvement  Include management and leadership that have overcome start-up issues and are thriving  SEA may reserve up to 10% of CSP grant to support dissemination activities. Source: Assessment of Charter Schools Program Dissemination Funding (Prepared by Public Impact for West Ed, November 7, 2006). 47

48. CSP: Dissemination Dissemination grants have not thrived Challenges remain:  Between 2000 - 2005, few States had considerable charters meeting the minimum eligibility requirements  Charters had difficulty identifying non- charter schools that were interested in participating in dissemination activities  Few States conducted evaluations of their statewide dissemination grant programs 48

49. CSP: Private Schools? Private schools do not meet the definition of a charter school in ESEA Cannot receive CSP funds Can’t make the switch to get CSP funds:  ESEA does not recognize conversions of private schools into public charter schools 49

50. CSP: For Profit? A for-profit entity does not qualify as an eligible CSP applicant A non-profit charter school receiving CSP funds may enter into a contract with a for- profit entity to manage the charter school on a day-to-day basis  The non-profit entity must directly administer or supervise the administration of the CSP project  Non-profit recipient is directly responsible for CSP compliance 50

51. CSP: Religious Schools? Public charter schools must be non-religious in programs, admissions policies, governance, employment practices and all other operations. The charter school’s curriculum must be completely secular. 51

52. CSP: Assurances New assurances added to CSP application Language in FY 2010 Consolidated Appropriations Act 52

53. CSP: Assurances Assurance 3A: Each authorized charter school in the State operate under a legally binding charter or performance contract between itself and the school’s authorized public chartering agency which must:  Describe the obligations and responsibilities of the school and the public chartering agency;  Conduct annual, timely, and independent audits of the school’s financial statements that are filed with the school’s authorized public chartering agency; and  Demonstrate improved student academic achievement 53

54. CSP Assurances Assurance 3B: Authorized public chartering agencies use increases in student academic achievement for all groups of students as the most important factor when determining to renew or revoke a school’s charter 54

55. CSP: Assurance 3B Increased student achievement across all subgroups :  Economically disadvantaged students;  Students from major racial and ethnic groups;  Students with disabilities; and  Students with limited English proficiency 55

56. CSP Assurance 3B It is not enough that State law requires improved academic achievement Must issue new guidance or State rules to clarify that this is the most important factor 56

57. CSP Assurances New assurances applied to FY 2010 grants and beyond Of the 12 FY2012 recipients, most were found non- compliant with at least 1 element of the new assurances 57

58. CSP Assurances Special Conditions:  Submit written plan by September 1, 2011  How the recipient will meet the Assurances  Assurances will be met by January 1, 2012  Failure to meet the deadlines will result in enforcement action (withholding, grant termination, repayment) 58

59. New Legislation September 14, 2011, House Passage:  H.R. 2218: Empowering Parents through Quality Charter Schools Act Similar language included in Senate HELP bill on ESEA reauthorization 59

60. H.R. 2218 Expand the scope of CSP:  Change in applicant eligibility for CSP  Extend the CSP grant period up to five years for both State and local recipients  Emphasize the need to serve all students, including children with disabilities and ELLs, and increase the focus on quality chartering processes at the State and local levels 60

61. H.R. 2218 (cont.) Retain both the Per-Pupil Facilities Aid program and the Credit Enhancement program, but authorized under a new section entitled Facilities Financing Assistance Change the use of funds for national activities to focus on providing charter school startup and dissemination grants Authorize 15% of the total appropriation for Facilities Financing Assistance, up to 5% for national activities, and the remaining funds for CSP 61

62. H.R. 2218 Chances of Passing This is one of the few areas where House GOP and Senate Dems are on the same page. Not likely to see full reauthorization in 2012… But may see charter school bill pass. 62

63. 63 Questions Comments Discussions ????? 63

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