A common refrain from education advocates is that school choice is “the civil rights issue of our time.”
In a conference on October 19, a leading education and legal scholar warned that allowing parents to choose to send their students to charter schools that operate without sufficient oversight will actually threaten the civil rights of students.
“I’ve heard people argue about the real need for school choice,” he said. Preston Green III, Ed.D. He acknowledged that charter schools, a key element of school choice, can provide needed opportunities for families, but said local governments need to regulate them.
“Certainly, communities of color have said that many of them support school choice programs, because they feel it fills a need. If there is that need, we can meet it, but we can’t step aside and then say they can’t be regulated. There have to be protections for communities, students and school districts.”
Green, the John and Maria Neag Professor of Urban Education at the University of Connecticut, delivered his remarks as part of the Graduate Schools of EducationBarbara L. Jackson Annual Lecture, Ed.D.
An expanding role in education
He began by acknowledging that charter schools, which are not subject to all the rules and regulations of local education departments, but are funded by taxpayer funds, are not only a critical part of the landscape, they are expanding.
In the United States, there are 7,500 charter schools in 45 states and the District of Columbia, serving 3.4 million students. Although the rules that govern schools vary widely across the country, there are three general areas where many of them fall short, he said.
They are the loss of civil rights, increased tension in fiscally limited districts, and predatory contracts.
When it comes to civil rights, Green said, marginalized groups need to remember one thing: “You can’t shut him out and you can’t kick him out,” he said.
Families need to know, he said, that they are protected by federal statutes that all schools, whether public, charter or private, must follow. They include Title VI, which prohibits discrimination against a person because of their race, ethnicity, national origin; Title IX, which protects against discrimination based on sexual orientation and gender identity; the Equal Educational Opportunity Act, which protects English language learners; and the Individuals with Disabilities Act and Section 504, which protect students with disabilities.
A key protection that needs attention
To those, Green added the Equal Protection Clause of the US 14th Amendment and the Due Process Clause, which give a student who may be suspended or expelled the right to be alerted to the charges and be gives you the opportunity to plead your case. Although charter schools meet the first five, Green said it’s an open question whether they meet the bottom two, as public schools do.
As an example, he cited Peltier Against Charter Day School, an ongoing case in North Carolina that has received split rulings in federal court and may be resolved by the U.S. Supreme Court. The school has a strict dress code that says girls must wear skirts and boys must wear skirts. wear pants, a provision that Green said would be a clear violation of the equal protection clause because it discriminates on the basis of sex. However, the school argued that legally it is not a “state actor” and should be exempt from the clause in the same way as private schools.
This has important implications for black students, he said, because some schools have policies that prohibit Afrocentric hair. The good news, she said, is that there are 27 states that prohibit charter schools from violating students’ equal protection rights.
“I would say that all states need to adopt this type of language to ensure that the civil rights of students are guaranteed,” he said.
Address the financial impact of charter flights
When it comes to increased stress for fiscally strapped districts, Green argued that both urban and rural school districts often suffer financially when charter schools are established. In the Chester Upland school district outside Philadelphia, she noted that the district faced a $22 million shortfall at the same time that the district’s charter schools received $40,000 a year for each special education student they admitted.
In Oklahoma, state legislators last March defeated a bill that they would have spent $128.5 million to expand school choice, because it was feared it would have an adverse effect on rural schools. Green applauded this and suggested taking a page from environmental law and mandating that districts conduct an “educational impact analysis” report before allowing charter schools to open.
California, Kentucky and Missouri have provisions like this for urban school districts, and Louisiana has one for rural areas, he noted.
“For districts with fewer than 5,000 students, the Louisiana State Department of Education actually does an assessment with the school district to determine whether or not a charter school should open in that rural community,” he said.
Finally, he cited abusive contracts, which can often arise when charter schools are not properly regulated. In New Jersey, she said, a 2019 investigation found that some operators were treating their buildings as investment vehicles rather than educational spaces, and nonprofit educational entities often worked in conjunction with for-profit partners.
Idaho, Kentucky, Ohio, Rhode Island in Texas already have laws that state real estate purchased with charter school funds; Green suggested that in addition to that, a model statute for contracts and purchases should also include a rule that leases and related party transactions must be at fair market value.
“We’re having a debate right now where we’re asking, ‘Should we go ahead with charter schools or should we go ahead with private school choice programs?’ I’m going to say that right now, I think that train has already left the station,” he said.
“But if we are going to go through with this, we need to provide protections. This is my attempt to really start putting the meat on the bone on how we can do that.”