Charter School Board May Have Constitutional Problems | Eastern North Carolina Now

    Publisher's note: The author of this post is Dan Way, an associate editor for the Carolina Journal, John Hood Publisher.

State constitution places State Board of Education in charge of K-12, critics say

    RALEIGH     A bill to create an independent Public Charter Schools Board represents an unprecedented attempt to supplant the power of the State Board of Education and may violate the state constitution, critics of the proposed legislation say.

    "I don't know of any effort in the history of the state, certainly not since the current constitution was written, to try to usurp the State Board of Education's authority like this," said Jeanette Doran, executive director and general counsel of the North Carolina Institute for Constitutional Law.

    If Senate Bill 337 were passed, "I would be stunned if this was not the subject of litigation," Doran said. "I do know of at least three individuals and an organization that are critically examining it." She declined to name the skeptics monitoring the bill's progress.

    "I believe that the current bill does have some constitutional issues," said June Atkinson, state superintendent of public instruction.

    "To me it is not in the best interest of our education to have two different boards in charge of components of public education," Atkinson said. "We have worked really hard in the Department of Public Instruction to integrate fully our services and our support for public charter schools in this state."

    Attempts by phone and email to reach bill sponsor and retired school administrator Sen. Jerry Tillman, R-Randolph, were not successful.

    The Senate passed the measure along mostly partisan lines and the House approved it on first reading, but it has yet to run the House committee gauntlet.

    The Charter Board would have 11 members and assume many of the functions now performed by the state Charter Schools Advisory Council.

    The Charter Board would provide technical assistance to charter schools and applicants, establish rules, oversee the application and approval process, monitor existing charter schools, renew charters, and revoke them. Charter schools would have to pay an application fee for the first time.

    The State Board of Education would have veto power over any Charter Board action by a three-quarters majority vote.

    "Article 9 of the state constitution is the constitutional foundation for all education in North Carolina, and we researched it extensively," Doran said.

    "That particular provision about the State Board of Education's authority is ... very, very clear that [it runs] the public schools in the state, and charter schools are public schools," Doran said.

    "There's a [constitutional] requirement that the General Assembly provide for a 'general and uniform system of free public education,'" Doran said. "The State Board of Education's authority isn't over just the uniform system, it's over all public schools."

    Doran said proponents of S.B. 337 may be confused by a Court of Appeals ruling about a year and a half ago, when Sugar Creek Charter School sued the state for capital outlay funds, claiming it had an entitlement to receive funding as part of the general and uniform system.

    The Court of Appeals said it didn't need to determine if charter schools were part of the general and uniform system, "that charter schools could be part of the uniform system, or could be in addition to the uniform system," but still could be funded differently as long as a sound and basic education was offered, Doran said.

    Backers of S.B. 337 may be misinterpreting that decision to believe that the state board's authority does not extend to charter schools, Doran said.

    "There's a tendency for people to read one section or another section and not read the constitution in its entirety, or sometimes they don't even read the education section in its entirety," Doran said. "You really need to have a macro view of the constitution to see how all of the pieces fit together."

    "Amending the North Carolina constitution is the best way to remove doubt about the constitutionality of an independent charter board. I suspect that proponents of the board will consider that option regardless of the fate of this bill," said Terry Stoops, director of research and education studies at the John Locke Foundation.

    "Public school advocacy groups dislike charter schools and will use their considerable resources to challenge the constitutionality of the charter board. For them, it is not about what's best for families or the charter school community. It is what's best for the state education bureaucracy they defend without fail," Stoops said.

    "The vigorous debate over this bill suggests that North Carolina's charter schools are no longer on the fringe of the political debate over public education," he said. "They have become central to it."

    "There's a lot of work to be done in public education, so why would you want to duplicate services?" Atkinson said.

    "It would be extremely difficult for just one office of charter schools to expand that area to an extent where they could provide the same level of assistance [as DPI], where other people have expertise with transportation, and child nutrition, and licensure, in curriculum, in accounting, in technology systems. It would be unnecessary to duplicate," she said.

    "One of our goals is to have greater collaboration between public schools and charter schools in our districts," Atkinson said. "We don't want to go back to a place where you have segregation of services, segregation of authority, and a situation where we would have to serve two masters, so to speak."

    Eddie Goodall, executive director of the North Carolina Public Charter Schools Association, said eight of the 10 members of his association's board of directors oppose an independent charter school board and member schools oppose it by a 15-1 margin.

    "One of the things the schools had mentioned to me that I didn't realize was important is that they do depend on the resources that DPI offers, and they don't want to see themselves siloed with the potential for having fewer resources than they have now, and that was echoed by several of the school leaders," Goodall said.

    "A second point that they made was that in many of the (school districts) they have seen a more collegial response ... given the change in the political environment. Of course that's not all of them but a lot of them expressed that," Goodall said.

    "We want more resources and less regulation, but we want that within the existing structure," Goodall said.

    "We also see the potential for harm to the charter sector to come about if it is segregated rather than integrated into public education. We see it easier to cut out if it's already cut out," he said. "We see it easier to be impacted negatively if it's already segregated from the rest of public education."

    Charter schools want the existing Charter Schools Advisory Council to work more on policy issues and faster on charter applications, Goodall said.

    They feel "very uncomfortable" with a new board that would set fees and nonrefundable costs on groups trying to put together charter schools, but have not been successful setting up a meeting with Tillman to discuss their concerns, Goodall said.