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Charter School Initiatives. Julia Martin, Esq. Brette Kaplan, Esq. Steve Spillan, Esq. Brustein & Manasevit, PLLC Fall Forum 2012. Agenda. National Trends Guidance Accountability Monitoring

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Charter school initiatives

Charter School Initiatives

Julia Martin, Esq.

Brette Kaplan, Esq.

Steve Spillan, Esq.

Brustein & Manasevit, PLLC

Fall Forum 2012


Brustein & Manasevit, PLLC


  • National Trends

  • Guidance

  • Accountability

  • Monitoring

  • Charter Schools Program

  • Issues of Equity

  • Political Perspectives

Increasing numbers

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Increasing Numbers

  • Overall, huge growth in number of charters and number of charter students

  • In 2011:

    • More than 5000 Charter schools nationwide

    • Serving 2 million students (about 3% of total)

    • There are 100 cities where charters serve 10% of students or more

Push to remove caps

Brustein & Manasevit, PLLC

Push to Remove Caps

  • Currently, 25 States have caps on the number of charter schools

  • Different types of caps:

    • Number of schools chartered/number of active charters

    • Number of students in charter schools

    • Limits to annual growth in number of schools or % of students in charters

  • Why remove caps?

    • Allows growth of good models, competition in charter “market”

    • BUT caps incentivize closure of unsuccessful models/problem schools

Push for more authorizers

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Push for More Authorizers

  • According to 2011 survey by National Association of Charter School Authorizers:

    • 1000 chartering authorities nationwide

    • 850 are LEAs

      • LEAs authorize 52% of charters

  • Why more authorizers?

    • More charters

    • Process moves more quickly

    • Less bias?

Increase in state local voucher programs

Brustein & Manasevit, PLLC

Increase in State/Local Voucher Programs

  • Basic idea: “funding portability”

  • In 2011, 15 States had some kind of voucher/tax credit program

    • 42 more were considering legislation

  • Some cities have similar programs

    • E.g., Los Angeles, Rochester, Newark, Boston

  • Specifics of programs – and degree of “portability” varies


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  • Draft Guidance “The Impact of the New Title I Requirements on Charter Schools” (2003)

    • Revised Guidance released (July 2004)

  • Charter School Program Guidance (April 2011)

Guidance key points

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Guidance: Key Points

  • As applied to charter schools, most oversight requirements can be found in the guidance

    • Lacks authority of formal rules

  • Knowing a charter school’s legal designation

  • Identifying the oversight agent under State charter school law

Guidance legal designation

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Guidance: Legal Designation

  • State law defines whether a charter school is either a:

    • Charter school that is a part of an LEA (similar to a traditional public school); or

    • LEA-charter school (charter school that serves as its own district)

  • ED guidance uses the above designations

  • Some State laws are not clear on designation, making implementation an adventure!!!

Guidance chartering agency

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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.

Esea applicability

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ESEA Applicability

  • Assessments

  • Adequate Yearly Progress

  • School Improvement

  • Choice

  • Supplemental Services

  • Corrective Action & Restructuring

Accountability section 1111

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Accountability (Section 1111)

  • Charters MUST comply with every aspect of ESEA’s accountability system:

    • Held to State-developed content and academic achievement standards

    • Participate in the State assessment system

    • Compared to the State-developed AYP measure

    • Identified for school improvement, corrective action, or restructuring when failing to making AYP, if charter receives Title I funds

Accountability section 11111

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Accountability (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

Accountability section 11112

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Accountability (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

    • LEA student exclusions

    • Students with disabilities exclusions

    • Approved State pilot growth model may apply

Implementing accountability

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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 Title I, Part A provisions

    • Unless State law designates the SEA for charter school Accountability

    • See Guidance at A-2

  • If charter is within LEA, LEA has grants management responsibilities

Implementing accountability capacity concerns

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Implementing Accountability: Capacity Concerns

  • Guidance: SEA may make available to authorizers various Title I resources to perform ESEA required duties, but not legally required

    • 1% of Title I allocation

    • 4 % School improvement

  • Resource/capacity issue makes ESEA enforcement by authorizers more challenging

Accountability sea liability

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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

      • Guidance: SEA ultimately responsible for implementation of, and compliance with, the Title I requirements by all public schools in the State receiving Title I funds, including traditional public schools and charter schools.

    • Guidance does not address responsibility if there is a conflict under the State’s charter school law

Charter and esea conflict

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Charter and ESEA Conflict

  • Guidance states that authorizers may incorporate State’s AYP definition into charter, but are not required to

  • But what if conflict exists?

    • Ex: 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

Charter and esea conflict1

Brustein & Manasevit, PLLC

Charter and ESEA Conflict

  • Charter may contain more rigorous accountability requirements than State plan

  • If charter school fails to make AYP, even if it meets contractual requirements with authorizers, ESEA consequences must be carried out

School improvement section 1116

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School ImprovementSection 1116

Public school choice

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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 authorizers responsibility

Public school choice1

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Public School Choice

  • 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

Public school choice2

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Public School Choice

  • If the charter school 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

Public school choice3

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Public School Choice

  • Charter school-LEAs must “to the extent practicable” work with local LEAs to create a student transfer agreement

  • Similar to 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 1st school year of improvement

Public school choice4

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Public School Choice

  • Implications for LEA-charter schools:

    • If charter school is not authorized by LEA, charter school must agreeto be a transfer option (i.e., LEA cannot mandate without school agreement)

      • See ED’s School Choice Guidance at E-1 (Jan. 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 be informed 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

Supplemental educational services ses

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Supplemental Educational Services (SES)

Ses lea duties

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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

Ses lea duties1

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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:

    • Choice related transportation;

    • SES; or

    • Combination of 1 and 2

Ses lea duties2

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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)

Ses eligible entity

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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

Corrective action

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Corrective Action

Charter corrective action

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Charter Corrective Action

  • If charter school that receives Title I funds is unable to make AYP for 4 years, charter school is placed on corrective action

    • Only in guidance

  • Responsible entity (presumably authorizer) can reorganize management and take other actions consistent with State charter school law and State’s accountability plan

Charter corrective action1

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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 charters.”

  • Guidance states that State charter law will determine if corrective action requires modification of the charter document.

Charters and restructuring

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Charters and Restructuring

Charters and restructuring1

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Charters and Restructuring

  • ESEA 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


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  • Grantees are responsible for managing the day-to-day operations of grant and subgrant supported activities to ensure compliance with Federal requirements and that performance goals are being met.

    • 34 CFR Section § 80.40(a)

  • Monitoring is the regular and systematic examination of a State’s administration and implementation of a Federal education grant.

Sasa monitoring esea title i title iii

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SASA Monitoring – ESEA Title I, Title III

Sasa monitoring sig

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SASA Monitoring - SIG

Csp generally

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CSP Generally

  • 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

Csp generally1

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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 Section 5210(1) (no waivers permitted for the definition of a charter school)

Csp start up grants

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CSP 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

Csp dissemination

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CSP Dissemination

  • 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

Csp dissemination1

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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

Csp dissemination2

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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

Csp and private schools

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CSP and Private Schools

  • Private schools do not meet the definition of a charter school under the 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

Csp and for profits

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CSP and For-Profits

  • 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

Csp and religious schools

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CSP and 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.

Csp assurances

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CSP Assurances

  • New assurances added to CSP application

  • Language in FY 2010 Consolidated Appropriations Act

Csp assurance 3a

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CSP Assurance 3A

  • Each authorized charter school in the State operates 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.

Csp assurance 3b

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CSP 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

Csp assurance 3b1

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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

Csp assurance 3b2

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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

Csp assurances1

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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

Oig report on csp oversight

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OIG Report on CSP Oversight

  • Released this Fall

  • Findings:

    • ED did not conduct sufficiently effective oversight;

    • ED’s process for ensuring States effectively monitor subgrantees is in need of improvement; and

    • ED did not ensure that States have adequate monitoring procedures for handling charter school closures.

Oig report sea findings

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OIG Report – SEA Findings

  • Did not adequately monitor charter schools receiving the SEA grant;

  • Did not have adequate methodologies to select charter schools for onsite monitoring visits; and

  • Did not monitor the authorizing agencies.

  • Insufficient procedures for closing charter schools and recovering SEA grant funds from the institutions. 

  • No written State requirements for how unspent funds can be given back by closed charter schools.

Oig recommendations to ed

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OIG Recommendations to ED

  • Develop and implement policies and procedures “issuing and tracking corrective action plans for each monitoring finding or specific recommendation made as a result of monitoring reports produced, and monitoring grantee fiscal activities;”

  • Establish and implement requirements for SEAs to develop a monitoring plan explaining the extent of monitoring that will be conducted during an SEA grant cycle;

Oig recommendations cont

Brustein & Manasevit, PLLC

OIG Recommendations (Cont.)

  • Provide necessary guidance and training to SEAS for the development and implementation of procedures to ensure SEAs have effective monitoring and fiscal controls for tracking the use of funds; and

  • Ensure SEAs have procedures to properly account for SEA grant funds spent by closed charter schools and for disposal of assets purchased with SEA grant funds in accordance with Federal regulations.


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  • More than half of all charter schools are located in cities

    • Not an option for many students, especially those from rural areas


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  • 2012 University of Wisconsin study

    • 43% of black charter school students attended schools that were 99% minority

    • Compared with 15% of black student population in traditional public schools

  • What are causes?

    • Self-selection?

    • Geography?

    • Schools prioritizing growth over equity?

Students with disabilities

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Students with Disabilities

  • Attend charter schools at much lower rates

  • 2012 GAO Report to Congress found that in 2009-10, student with disabilities made up:

    • 11.1% of total school-age population

    • 11.2% of traditional public school population

    • 8.2% of charter school population

      • (up from 7.7% in 2008-9)

    • Varies by State

      • In NH, students with disabilities make up 6% of charter school population; 13% overall

      • In IA, MN, NV, NM, OH, PA, VA, WY, about the same

Students with disabilities1

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Students with Disabilities

  • Why?

    • GAO doesn’t know

  • Possible explanations:

    • Placement by charter/LEA

    • Location of schools

    • Parent preference/student need

    • School capacity/resources

    • Funding

Democrats and charters

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Democrats and Charters

  • Seen as an option in healthy school ecosystem

  • Generally supportive

  • BUT not a solution for all students

Republicans and charters

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Republicans and Charters

  • Charters as part of “school choice” system

    • “market”-based approach to education

    • Charters as viable option that drive competition for other schools

  • Money should follow the child

    • Romney: “linked to the student”


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  • Empowering Parents through Quality Charter Schools Act

    • H.R. 2218

    • Sponsored by Rep. Duncan Hunter (R-CA)

    • Goal is to “streamline and modernize” the Charter School Program

    • Current program “outdated” and “not meeting the needs of the charter school community”

Empowering parents through quality charter schools act

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Empowering Parents through Quality Charter Schools Act

  • Consolidates existing funds into State grant program

    • With additional flexibility on State level to support new startups and expansion/replication of successful models

  • States must describe how they will include ELLs, students with disabilities

  • Expand grant period from 3 years to 5 years

Empowering parents through quality charter schools act1

Brustein & Manasevit, PLLC

Empowering Parents through Quality Charter Schools Act

  • Gives priority in funding to States that:

    • Repeal charter school caps

    • Allow other entities to be charter authorizers (not just SEA/State board)

    • Provide charter financing comparable to traditional public schools

    • Support “full-blended” or “hybrid-online” models

    • Are using charter transformation as a form of intervention for low-performing schools

Empowering parents through quality charter schools act2

Brustein & Manasevit, PLLC

Empowering Parents through Quality Charter Schools Act

  • Consolidates Credit Enhancement Grant and Facilities Incentive Grant into CSP, with the option for the Secretary to award funds for facilities

  • Option for Secretary to provide funding to individual charters

    • In States that don’t get CSP grants

  • Support TA, dissemination of best practices

Empowering parents through quality charter schools act3

Brustein & Manasevit, PLLC

Empowering Parents through Quality Charter Schools Act

  • Support

    • Passed House Committee 6/22/11

      • Bipartisan support (34-5) including George Miller (D-CA) and Jared Polis (D-CO)

    • Passed House of Representatives 9/13/11

      • Bipartisan support (365-54)

    • Included in text of Harkin ESEA bill

    • Introduced as stand-alone in Senate 9/15/11

  • Future

    • Likely to pass in next large education bill


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This presentation is intended solely to provide general information and does not constitute legal advice.  Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.