Selecting a Charter School Attorney: Advice, Part 1

When I'm visiting charter schools I often get asked for advice. This includes everything from how to handle a particular situation, where to find specific information or how to improve school governance. There are some things I regularly repeat such as get good legal counsel with charter school experience. It's important to find an attorney with knowledge about education laws and charter schools specifically. But beyond that, you want someone who will be an advocate for your charter school and is willing to step in on your behalf. This is especially important when negotiating the charter contract, but it also applies to student discipline issues and disagreements with the authorizer.

Some charter school attorneys have strengths with particular issues such as Special Education, facility financing or negotiations. It's important for charter school leaders to check out attorneys before making a commitment to hire. In addition, get several recommendations from others within the charter school community before making a decision. People have different experiences with their legal counsel and so it's important to hear a variety of perspectives. This way you can make a decision based on what's best for your particular public charter school and your particular situation.

Note: This is the first of a new series I'll be doing about the standard advice I give to charter school leaders. 

Charter School Appeals in Colorado

I've been going through the list of charter school appeals to the State Board of Education and came across some interesting findings.

First, Denver Public Schools (DPS) has the most appeal cases with 19. To put that into context, Jeffco has 17, Aurora seven, and Adams 12 five. This is out of 132 appeal cases.

Second, there were two years, 1994 and 2006, when there were the highest number of appeals: 14. The high number of appeal hearings in 1994 makes sense because that's the first year the Charter Schools Act was in effect and there were numerous charter school applications that year. The high number in 2006 is harder to explain. It was the year after the Legislature adopted the Charter School Institute Act, which created the state's alternative authorizer. However, probably the most noteworthy piece in the data is that the number of appeal hearings dropped precipitously after that so that in 2008 there were only three hearings and in 2009 only one. This can easily be explained by the state's development of the standard application and model contract language. Both of these documents, for the first time, explained what was acceptable practice for charter school applications and charter contracts.

Another interesting point is the number of charter schools that never open even after a successful appeal to the State Board. The vast majority of appeal hearings are from brand new charter applicants; however, the law also allows an existing charter school to appeal "gross imposition of conditions" or issues with which the two parties disagree. Further, the vast majority of appeals are only heard once by the State Board. Even if the charter school wins a remand, most of the time the parties settle their differences and it doesn't go to the State Board for a second appeal. But when there is a second appeal and the State Board orders a local district to open a charter school, only a small number of those schools actually open.

It's also interesting to note that in 1994 there were more appeal hearings than charter schools that were approved to open. There were 14 appeals, but only 11 charter schools opened. Again in 1995, when there were 10 appeals, only 10 charter schools opened. In the early years of the Charter Schools Act, there was a high number of appeals and not many schools opening. But the law was also under pilot status until 1998 when the sunset provision was lifted.

This year there have been four charter school appeal hearings and none others scheduled for hearing at this time. Of the four, three of the cases are from Denver. The State Board ruled in favor of Northeast Academy and Monarch Montessori in February. However, the March hearing of Life Skills High School went in favor of the district on a 4-3 vote.

The appeal provision of the Charter Schools Act is one of the tenets that makes Colorado's law rank strong on national studies of charter school laws. It allows any applicant that has been denied, to bring their case to the State Board of Education for a quasi-judicial proceeding. In Colorado, the State Board has historically ruled with the district about half of the time and with the charter school half the time.

Charter School Appeal History in Colorado

It's widely believed throughout the state that "the State Board of Education always supports charter schools" in appeal hearings. The facts say different. Of the 155 appeal cases that have been filed, 100 have been heard. Of those 100 hearings, the State Board backed the district 57 times on first appeal. The other 43 times the State Board remanded the matter back for further reconsideration, thereby supporting the charter school applicants.

Supporting the school district the majority of the time was also true in the early years of charter schools in Colorado. Before 2000 there were 53 charter appeal hearings and 32 times the State Board supported the district's decision to deny the charter application.

From 2004 to 2007 there were 44 appeal hearings filed. It was during this period that the State Board members began searching for another way to conduct appeal hearings. Members Randy DeHoff and Karen Middleton convened a couple of meetings to discuss alternatives which included expert reviewers, a rubric for reviewing charter applications and as different type of hearing process.

This discussion led to the creation of the standard charter school application, checklist for completion and review rubric in 2008 and then charter school appeal hearings dropped dramatically. In 2007 there were 10 appeal hearings and that dropped to one in 2008 and none in 2009.

The development of the standard applcation by the CDE, Colorado League of Charter Schools and the Charter School Institute was revolutionary in that it was the first time the "three C's" collaborated on a project. And it was only the beginning.

Following the standard application, charter school authorizers asked for sample contract language. That was developed in 2009 and just recently revised. The sample contract has something for everyone to love or hate. Some of the provisions are tougher than districts currently use. The contract delineates the responsibilities of both the charter school and the charter school authorizer; a first for many Colorado charter school authorizers to consider.

There has been eleven times that the State Board of Education ordered a district to open a charter school. However, that has only resulted in one charter school actually opening (Imagine Charter School at Firestone).

The first time the State Board took this type of action, the case was taken to the state Supreme Court. Thurgood Marshall Charter Middle School was proposed by an African-American teacher in Denver -- Cordia Booth. The Supreme Court ruling declared that while the State Board did have authority to order a district to open a charter school, it could not dictate the provisions of the contract.

When the Charter Schools Act was adopted in 1993 it was a pilot program with a sunset of 1998. When the sunset provision was lifted, almost half of the charter schools in the state were open due to the appeal process.

Management Company Issues Discussed at Today's HB 1412 State Advisory Committee Meeting

Today the HB 1412 State Advisory Committee for quality standards for charter schools and charter school authorizers met at the Colorado Association of School Boards meeting room. The morning began with representatives from the charter school management company community providing public testimony and participating in a general discussion about key issues.

EMOs, or education management organizations, are generally for-profit. CMOs, or Charter Management Companies, are generally nonprofit and include schools that replicate, oftentimes under a single governing board. The discussion included both types of management companies.

Since Colorado has more grassroots startup charter schools and fewer management company operated schools than other states, there has been some negative perceptions created over the years. Many of those issues were raised today with very little consensus, if any, on what could be done to mitigate the misperceptions in the future.

Some of the issues were:

* How to prevent a charter school from getting into a contract with a management company that has a "poison pill" that makes it nearly impossible to "fire" the management company and still maintain a charter school.

* Which entity should hold the assets?

* Both the charter school governing board and the management company should have separate legal counsel and negotiate an "arms length" agreement.

* There needs to be more training information available for new charter school boards and charter school authorizers so that people are aware of what needs to be discussed because oftentimes people don't even know what questions to ask.

* Relationships are important and not just for the charter school and the management company, but also the authorizer and the management company.

* A certain level of academic achievement is required by the charter school contract and it implies that the management company is responsible for producing a certain level of academic results or else it's the company's responsibility to make necessary changes.

* Transparency is vital, especially as it relates to financial arrangements.

The next committee meeting will be on Feb. 2nd and there will be a public hearing on online education issues. Today's committee also established a timeline for its work, which primarily is a report to the legislature with recommended legislation or state board of education rule changes. The committee report will also outline a proposed implementation plan for the recommendations.