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State Board of Education: Virtual charter schools need not apply

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According to Article IX, Sec. 5 of the North Carolina Constitution, the State Board of Education is responsible for supervising and administering "the free public school system and the educational funds provided for its support."  Additionally, they are charged with making "all needed rules and regulations," subject to laws enacted by the General Assembly, necessary to fulfill their duties and responsibilities.

Unfortunately, State Board of Education rules often have little to do with supervising and administering North Carolina’s free public school system in a fair and judicious way.  Nobody knows that better than the non-profit board of the North Carolina Virtual Academy, which is likely to become North Carolina’s first online charter school in a rather unlikely way.

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  • The John Locke Foundation cordially invites you to a North Carolina History Project Lecture with special guest Professor Jeff Broadwater.  The lecture will be held on Thursday, June 7, 2012 at 6:00 pm at the Historic 1767 Chowan County Courthouse in Edenton, NC.  Professor Broadwater’s lecture, "James Madison, North Carolina, and the Problem of Governance," examines how Madison’s political views evolved and how they came to reflect many Anti-Federalist concerns.  Please call the Barker House at (252) 482-7800 or send an email to Troy Kickler to reserve your spot.
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  • 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 NC History Project encyclopedia articles and other primary and secondary source material, if possible.  Go to the NC History Project website for further information.
  • JLF’s research newsletter archive.


Recently, the NC School Boards Association began forwarding a petition to school boards across the state asking them to "seek intervention as a party in the pending litigation captioned North Carolina Learns, Inc. v. State Board of Education."  The case involves the failure of the State Board of Education to act on a charter school application submitted by a non-profit organization, North Carolina Learns.

Advocacy groups like the NC School Boards Association and NC Policy Watch have been critical of the proposed school because NC Learns would contract with K12, Inc., an accredited for-profit online education company, to provide computer-based instructional services.  Like all charter schools in North Carolina, however, the non-profit board would maintain oversight of the school, the North Carolina Virtual Academy.

The role of K12 is only part of the story.  The state’s disregard for North Carolina charter school law and policy is a much more substantive and far-reaching issue.

In November 2011, North Carolina Learns submitted a charter school application to the Cabarrus County Board of Education.  State statute gives local boards of education the power to grant preliminary approval to charter school applicants.  Nevertheless, all charter school applicants must obtain final approval from the NC State Board of Education (SBE).

The following January, the members of the Cabarrus school board gave preliminary approval to the school and NC Learns subsequently applied to the SBE for final approval of their charter.  The applicants hoped to obtain a "fast track" charter that would have allowed them to begin operation in 2012.

Enter the chairman of the NC State Board of Education Bill Harrison.

In October 2011, 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. Certainly, Harrison did not have the power or authority to arbitrarily deny review of an application unless there were valid or extenuating reasons for doing so.  In this case, no justification existed.  The applicant met the deadlines and requirements established by the board.

As a result of the SBE’s inaction, the NC Learns application remained in "limbo."  At the same time, the NC Public Charter School Advisory Council received and acted on 27 other applications for "fast track" charters.  In March, the NC State Board of Education approved nine charter school applications recommended for approval by the advisory council.

NC Learns filed a complaint with the Office of Administrative Hearings.  That is when things got interesting.

As part of a motion to dismiss the NC Learns complaint, the attorneys for the SBE argued that the State Board of Education is not part of the executive branch and "exists as its own constitutional body."  Later, the attorneys claimed that the SBE was part of the legislative branch.  If true, then the Office of Administrative Hearings would not have jurisdiction over the matter.  Of course, the claim is laughable and the judge rejected the motion to dismiss.

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; and 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 NC Learns application.  As a result, the administrative law judge approved the charter school’s application.

Public school advocacy organizations, with help from the mainstream media, prefer to focus the public’s attention on K12, Inc.  But there is no evidence that K12 or NC Learns acted inappropriately.  In fact, NC Learns made every effort to play by the rules only to find that the State Board of Education was making up the rules as they went along.

Random Thought

The NC Division of Motor Vehicles offers a watermelon license plate but not one for North Carolina’s state fruit, the scuppernong grape.  What gives?

Facts and Stats

Students typically will spend no more than 20–30 percent of their time on the computer in the early grades. (North Carolina Virtual Academy, Frequent Asked Questions)


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

"Online and blended schools are creating personalized learning programs that are helping students who are not well suited to learn in a traditional, brick and mortar classroom.  Again, not for everyone, but they are an ideal option for a small number of students.  Even in states where online schools have existed for over a decade, only about 1% of the student population chooses to enroll.  (In NC, the number would be less than 0.2%).  But for parents who have sons and daughters with unique special needs, or have been victims of bullying, or who struggle continuously in the classroom, online schools are not just an interesting alternative, they are critical need."

– K12, Inc., Watchdogging NC Policy Watch, May 30, 2012

Click here for the Education Update archive.


Dr. Stoops is the director of the Center for Effective Education. Before joining the Locke Foundation in 2005, he worked as the program assistant for the Child Welfare Education Programs at the University of Pittsburgh School of Social Work. He… ...

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