by Dr. Terry Stoops
Former Director of the Center for Effective Education, John Locke Foundation
Question: When is a charter school not a charter school?
NC State Board of Education answer: When it is a virtual charter school, of course!
Over the last year and a half, Chairman Bill Harrison and his State Board of Education colleagues have been on a mission to assert regulatory power over virtual charter schools in North Carolina. 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. 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 both established by the board and codified in state statute.
After Office of Administrative Hearings ruled against the State Board of Education for their "arbitrary and capricious" behavior, Wake County Superior Court Judge Abraham Penn Jones determined that Harrison’s actions constituted a board decision on an entire class of charter applications, virtual charter schools.
In what some might call "inventive" jurisprudence, Judge Jones maintained 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 and it was never presented to them as an action item.
Speaking of inventive, Bill Harrison appears to be forging ahead with his plan to regulate virtual charter schools as if they were not subject to the state’s charter school statute. It is his latest, last gasp attempt to keep virtual charter schools out of North Carolina.
In a November 13 letter, chairs of the Joint Legislative Education Oversight Committee, Senator Jerry Tillman and representatives Bryan Holloway and Linda Johnson, warned chairman of the State Board of Education (SBE) Bill Harrison that a proposed SBE policy related to the establishment of virtual charter schools directly violates North Carolina General Statutes.
Senator Tillman and his colleagues pointed out, for example, that the policy would conflict with statutory language that prohibits caps on charter schools and class size requirements. The letter also notifies Harrison that the State Board of Education has no authority to pass regulations that alter the charter school funding formula, which is outlined in state statute. The members of the General Assembly concluded their letter with a stern warning,
The State Board of Education is acting outside of its authority with the proposed administrative policy, TCS-U-015. Moreover, deliberations on the role of virtual charter schools in North Carolina are needed at the legislative level before any virtual charter school policies are adopted. We expect the State Board of Education to not adopt any administrative policies unique to virtual charters [sic] schools at this time.
Two weeks later, Chairman Harrison responded to Tillman, Holloway, and Johnson’s letter.
The NC Constitution requires that the State Board of Education "make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly." In his letter, Harrison argued that the state constitution allows the SBE to establish policy where the General Assembly has been silent, i.e., has established no law. In their "plain language" reading of the constitution, Harrison claims that current statute only applies to brick and mortar charter schools, not virtual charter schools. As such, Harrison believes that the SBE is well within its rights to regulate virtual charter schools as it sees fit.
While the "plain language" of the charter school statute makes multiple references to facilities, it is a stretch to argue that the statute is only directed at traditional brick and mortar charter schools. One of the purposes of charter schools is to employ "different and innovative teaching methods." Clearly, online learning is one such method.
Early next year, Governor-elect Pat McCrory will appoint a new chair and two new members to the State Board of Education. Three additional SBE members will be appointed later that year. I hope that all new members of the SBE, as well as returning ones, resist the impulse to regulate the bejeezus out of public schools — district and charter alike. Let’s welcome innovative approaches to delivering instruction, methods that respond to the needs of individual children and not "the system."
Jenga is not on my Christmas list.
Facts and Stats
The charter school market share (as a percentage of Average Daily Membership) for the 2011-12 school year was 3 percent.
Education Acronym of the Week
TCS — Twenty-First Century Systems
Quote of the Week
"The proposed virtual charter policy was not intended to conflict with any laws enacted by the General Assembly or usurp the authority of the General Assembly to act in this area. Pursuant to Article IX of the Constitution the SBE has the authority to act in areas setting forth public education policy where the General Assembly has been silent. At this point in time, Chapter 115C is silent with regard to the establishment of virtual charter schools and its plain language is only directed at traditional brick and mortar charter schools."
– Bill Harrison, chairman of the State Board of Education, November 28 letter to the chairs of the Joint Legislative Education Oversight Committee
Click here for the Education Update archive.