Welcome
Last week, Wake County Superior Court Judge Abraham Penn Jones declared that the chairman of the State Board of Education (SBE) has unilateral authority to preemptively declare — before applications are even received — that the SBE will not consider certain charter schools for review.
In this week’s CommenTerry, I detail how Judge Jones’s decision transformed SBE Chairman Bill Harrison from mere mortal to public school "overlord."
Bulletin Board
- The John Locke Foundation and the Triangle Federalist Society cordially invite you to a meeting of the Shaftesbury Society with our special guest Miguel Estrada. Mr. Estrada will review the eventful 2012 Supreme Court term. The event will begin at Noon on Monday, July 23. Like all meetings of the Shaftesbury Society, it will be held at the John Locke Foundation office in Raleigh.
- The North Carolina History Project would like educators and homeschool parents to submit lesson plans suitable for middle and high school courses in North Carolina history. Please provide links to N.C. History Project encyclopedia articles and other primary and secondary source material, if possible. Go to the N.C. History Project website for further information.
- JLF’s research newsletter archive should be part of the individual mandate.
CommenTerry
In January 2012, the members of the Cabarrus County Board of Education gave preliminary approval to a virtual charter school operated by a non-profit organization, N.C. Learns. Subsequently, N.C. Learns applied to the State Board of Education (SBE) for a "fast track" charter for their school, the N.C. Virtual Academy. A fast-track charter would have allowed them to begin operation later this year.
But months earlier, SBE Chairman Bill Harrison declared — without a vote of the board and outside the parameters of the charter school law — that the State Board of Education would not consider "fast track" applications for virtual or online charter schools. The N.C. Virtual Academy application was ignored.
As a result of the SBE’s inaction, N.C. Learns filed a complaint with the Office of Administrative Hearings. The administrative law judge determined that the actions/inactions of the SBE "were arbitrary, capricious, and without valid basis in law, rule, policy, process, or fact." Further, the judge determined that SBE action was not based on 1) action by the State Board of Education on the application; 2) any defect in the preliminary approval process; or 3) preliminary approval by the Cabarrus County Board of Education. More importantly, the failure of the SBE to act on the application constituted "a loss of jurisdiction" over the N.C. Learns application. As a result, the administrative law judge approved the charter school’s application.
Last week, Wake County Superior Court Judge Abraham Penn Jones reversed that decision.
With all due respect, it is a lousy decision. Left-wing advocacy groups got a "win" the old fashioned way — god-awful jurisprudence.
Judge Jones argues that the announcement of the chairman of the State Board of Education, Bill Harrison, constituted an SBE decision on an entire class of charter applications — in this case, virtual schools. He maintains that the SBE had no obligation to act on the application because "it concluded that no response was required given its previous October 2011 announcement that no virtual charter school application would be considered for 2012-2013."
In other words, Judge Jones contends that Harrison’s proclamation was representative of the SBE as a whole, even though members did not vote on the application. Indeed, the N.C. Learns application was never brought before the board as a formal action item.
Did Judge Jones consider the implications of granting the chairman of the SBE this kind of unilateral authority? If the chair of the SBE determined that the state had too many charter schools in Durham County, to use a relevant example, he could announce that the SBE would not consider any applications for schools in that county. And that would be the end of the story. What Harrison says, goes. It is Harrison’s way or the highway. Harrison is large and in charge. You get the idea.
What is to stop the chairman of the State Board of Education from disqualifying charter applications based on other attributes of the application? What if Chairman Harrison did not approve of the educational program or student demographics of certain charter applicants? Judge Jones would argue that the chair could simply announce that the SBE would not consider such schools in the upcoming application period — no vote of the board and no rationale required.
To his credit, Judge Jones points out that the charter review process is well established. He writes, "Over the last 15 years, the SBE has instituted various procedures designed to ensure that all applications are reviewed thoroughly and consistently, e.g., SBE Policy TCS-U-012." In the case of the N.C. Virtual Academy, however, the SBE largely ignored policies related to the charter application process as outlined in the N.C. General Statutes and SBE Policy TCS-U-012. Obviously, there is nothing in statute or policy that allows the chair of the SBE to exercise unilateral authority over the charter review process.
Indeed, one of the many implications of Judge Jones’ decision is that the State Board of Education may simply disregard state law. The North Carolina General Statutes specify that the SBE "shall act by March 15 of a calendar year on all applications and appeals it receives prior to February 15 of that calendar year." (Emphasis added) Notice that it does not say that the State Board "may" act on "selected" applications and appeals. Despite the fact that the N.C. Virtual Academy application met the statutory deadline, the SBE did not act on the application. Their failure to do so is a clear violation of state statute. But who needs laws when the chair of the SBE is sovereign?
Let’s face it. Wake County Superior Court Judge Abraham Penn Jones effectively revived the charter school cap. And it is worse than ever. In the past, the cap was embedded in state statute. Now, it is based on the ideological whims of a political appointee.
For this reason, I hope that N.C. Learns still has some fight in them. The future of charter schools in North Carolina may depend on their willingness to appeal the superior court decision.
I have a few additional recommendations.
- I urge members of the N.C. General Assembly to revise the state’s charter school statute to curb the power magically granted to the chair of the State Board of Education by the courts. Further, they should ensure that all charter school applicants enjoy a fair and equitable review process.
- I call on the N.C. Public Charter School Advisory Council, the Office of Charter Schools, and North Carolina’s two charter school organizations — the N.C. Alliance for Public Charter Schools and the N.C. Public Charter School Association — to formally condemn Judge Jones’ decision.
- I recommend that members of the State Board of Education ask Chairman Harrison for an apology, as he failed to call for a formal vote on the issue of online charter schools.
- Subsequent governors should appoint State Board of Education chairs who are committed to treating all public schools, traditional and charter, equally. A commitment to adhering to state statute would be a plus.
- At some point, Superintendent of Public Instruction June Atkinson should address this issue.
Random Thought
We should use the word "quango" more often.
Facts and Stats
According to N.C. Learns attorney Fletcher Hartsell, the North Carolina Virtual Academy received inquiries from about 1,000 families, which represents approximately 1,700 students.
Mailbag
I would like to invite all readers to submit announcements, as well as their personal insights, anecdotes, concerns, and observations about the state of education in North Carolina. I will publish selected submissions in future editions of the newsletter. Anonymity will be honored. For additional information or to send a submission, email Terry at [email protected].
Education Acronym of the Week
SBE — State Board of Education
Quote of the Week
"One thing is for certain: there is no stopping them; the ants will soon be here. And I for one welcome our new insect overlords. I’d like to remind them that as a trusted TV personality, I can be helpful in rounding up others to toil in their underground sugar caves."
– Kent Brockman, Springfield news anchor, 1994
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