Having It Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools

Abstract

IntroductionSince 1992, forty-two states and the District of Columbia have enacted legislation for charter schools.1 As of December 2011, there were 5,700 charter educating 1.9 million students.2 Charter are characterized as that receive autonomy from a variety of rules and regulations that must follow.3 In exchange for this increased autonomy, charter are accountable to the requirements that established in the charter.4 Failure to satisfy those requirements could result in the closing of the school.5Charter and traditional schools are similar in that they are directly subsidized by a combination of primarily state and local taxes based on their enrollments.6 However, the authorization process for these two types of can be quite different. Local education agencies (LEAs), which are usually school districts that are governed by elected school boards, decide to open new schools/ While LEAs may open new charter in many states, some state statutes grant chartering authority to nonprofit private entities that are governed by boards of directors consisting of private citizens.8 Traditional and charter may also differ in terms of how they are governed. While LEAs generally govern schools, many states permit private boards of directors to operate charter schools.9 Another key difference between and charter is that charter school governing boards might choose to contract a private entity, or educational management organization (EMO), to manage and operate the school.10This Article discusses how charter have used their hybrid characteristics to obtain the benefits of funding while circumventing state and federal rights and protections for employees and students that apply to schools. The first Part explains how charter have emphasized their public characteristics to withstand state constitutional challenges that they are ineligible for funding because they are private or fall outside of a system of schools.The second and third Parts of this Article explain how charter have emphasized their private characteristics to avoid having to comply with state and federal protections that protect employees and students. Specifically, the second Part discusses how privately run charter school boards and EMOs have evaded state union election laws by arguing that they are private entities that are covered by the National Labor Relations Act (NLRA), a federal statute that governs private-sector employment. The third Part discusses how charter have attempted to evade federal constitutional and statutory protections for employees and students by arguing that they are not state actors pursuant to 42 U.S.C. § 1983, a federal statute that establishes a cause of action for deprivations of federal constitutional and statutory rights under the color of state law.11 These Parts also point out that attempts to circumvent state and federal protections for students and employees may have unintended consequences, such as inviting federal involvement in charter school labor policies, or causing state courts to revisit the question of whether charter are eligible for funding under state constitutional law.I. Charter Schools, Public School Funding, and State ConstitutionsPlaintiffs have alleged that the private characteristics possessed by charter render them ineligible for funding under state constitutions. Charter have survived these challenges by convincing courts that they are sufficiently to be eligible for funding. This section discusses how charter have withstood challenges under two types of constitutional provisions based on their private characteristics: (1) state constitutional provisions that prohibit funding to these types of and (2) state constitutional provisions requiring the state to provide a uniform or efficient system of schools. …

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