Education Law Notes  

On August 11, 2014, the State Department of Education [“SDE”] announced via a press release  that it would immediately implement a series of policy changes designed to “ensure that all charter schools, operate according to high standards of educational excellence, organizational governance, accountability, and transparency.” These policy changes follow what can best be described as a tumultuous summer for the Connecticut charter school movement, as a drumbeat of scandals rocked Hartford’s Jumoke Academy and the “FUSE” management organization that ran it.

The new SDE policies will purportedly require charter schools to submit to a host of new oversight obligations. Per the SDE press release, the administrative policy changes include the following actions and recommendations (amongst others):

• Mandatory background checks for charter school staff, board members and management organizations;
• Mandatory charter school adoption of anti-nepotism and conflict of interest policies;
• Clearer rules on governing fees charged by charter management organizations;
• Mandatory annual reporting by charter schools in key areas;
• Mandatory documentation setting explicit expectations for student outcomes and school operations;
• Mandatory incorporation of language in charter management organization contracts stating that the management organization is the functional equivalent of a public agency and is therefore subject to the Connecticut Freedom of Information Act [“FOIA”];
• Monitoring for charter school compliance with the FOIA.

While these new administrative policies represent significant changes to the Connecticut charter school status quo, at this stage at least, it is unclear whether these “administrative policy” changes will legally bind existing Connecticut charters. As of September 17, 2014, the SDE had not issued a notice of intent to adopt new charter school regulations via the Secretary of State’s web-site, and, since of course the General Assembly is not currently in session, no new charter school statutes have been proposed or enacted.

As such it appears that the SDE’s new charter school oversight policies are probably best thought of as internal protocols that the SDE will use in the future consideration of new charter school applications -- a process currently governed by Connecticut General Statutes § 10-66bb. Under § 10-66bb the State Board of Education is given broad authority to approve or deny charter school applications as it sees fit, and may condition the grant of a charter on the school’s ability to meet certain conditions determined by the Commissioner of the SDE.

Outside of the charter application process, however, it remains unclear how these new charter school administrative policies will be implemented. The charter school laws give the Commissioner the authority to place a charter school on probation if the “governing council has demonstrated an inability to provide effective leadership to oversee the operation of the charter school or has not ensured that public funds are expended prudently or in a manner required by law.” Conn. Gen. Stat. § 10-66bb(h). Would this provision allow the Commissioner to put a charter on probation if it failed to perform adequate background checks or adopt a conflict of interest policy? To the same end, the law allows the State Board of Education to revoke a charter if the school fails to comply with the terms of a probation or “manage its public funds in a prudent and legal manner”. Conn. Gen. Stat. § 10-66bb(i)   Do these provisions give the SDE and the State Board of Education a sufficient “hook” to force existing charter schools to comply with the SDE’s new policies even if those policies have not been formally enacted into law by statute or regulation?

What’s often lost in the charter school legal shuffle is that many laws that are already in place already apply to charter schools. As a general proposition, for instance, the Connecticut Freedom of Information Act clearly applies to Connecticut charter schools (there is some ambiguity on the FOIA’s application to charter management organizations which may or may not be the “functional equivalent” of public agencies for purposes of the FOIA). Likewise, as the ultimate recipients of federal funds, charter schools are also subject to the same Federal civil rights laws (The Civil Rights Act of 1964, the ADA, Section 504 of the Rehabilitation Act of 1973, Title IX, etc.) that ordinarily apply to traditional public schools.

As time goes on it will be interesting to see how the SDE’s new charter school policies fit into the charter school legal landscape and change the current operation of Connecticut’s charter schools.