Paulden Elementary School wasn鈥檛 supposed to be open this academic year. State officials in May revoked the charter for the rural Arizona school, citing several violations of state and federal law, including the failure to fingerprint some teachers.
Not surprisingly, the move by the Arizona State Board for Charter Schools wasn鈥檛 exactly welcome news to the school鈥檚 leaders. But rather than grudgingly accept their fate, they opted to fight it out鈥攊n the courtroom.
The dispute is one of several similar lawsuits across the country, either ongoing or recently resolved, in which decisions to close charter schools have been challenged.
In Massachusetts, for instance, a charter school is staying open for now as it appeals a judge鈥檚 ruling late last month upholding the state鈥檚 decision to close it. Two Florida charter schools that sued to stay open got their wish this past fall鈥攕ort of. After a judge called for mediation, the schools were allowed to keep operating. But they lost their charter status.
Lawsuits challenging orders to close charter schools remain relatively rare, says Greg A. Richmond, the president of the National Association of Charter School Authorizers, a group based in Alexandria, Va. But they are a reminder that, despite the ultimate accountability that the shutdown of a charter school represents in theory, it鈥檚 usually hard to do in practice.
鈥淢ost schools that are facing closure do resist, and I can鈥檛 fault anyone in that position for trying to stay open,鈥� Mr. Richmond said.
The decision to take a charter school鈥檚 fate to court, however, is controversial. While some suggest it鈥檚 entirely appropriate for a charter school to pursue a legal review if its leaders believe it has been treated unfairly, others worry about turning to the courts to be the arbiters in such matters.
鈥淭he courts are going to focus on legalistic, procedural things rather than what鈥檚 good for the kids,鈥� said Bryan C. Hassell, a policy consultant and charter expert based in Chapel Hill, N.C.
Frederick M. Hess, the director of education policy at the American Enterprise Institute, a Washington think tank, said he too is troubled by taking such matters to court, but he expects more lawsuits over charter revocations in the future.
鈥淎s the number of charters grows, and as states grow more aggressive [in closing schools], we鈥檙e probably going to see more of this stuff,鈥� he said, 鈥渁nd the obvious place to appeal is the courts.鈥�
Avoiding Fights
The ability to close schools that are not up to snuff is a fundamental principle of charter schooling. The publicly funded but independently run schools receive greater autonomy than most other public schools in return for a promise to be held accountable for results. If a school isn鈥檛 working, charter advocates say, shut it down.
Yet decisions to close charter schools are often met with fierce opposition, even in cases where the schools have serious organizational, financial, or academic problems.
Mr. Richmond said authorizers sometimes avoid trying to close schools because of the anticipated opposition.
鈥淚鈥檝e at times talked to people who say, 鈥榃ell, it just isn鈥檛 worth it,鈥� 鈥� he said.
As of this school year, more than 3,600 charter schools are operating nationally, enrolling nearly 1 million students, reports the Washington-based Center for Education Reform, a pro-charter research and advocacy group.
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Last school year, about 65 charter schools closed their doors in 17 states and the District of Columbia, representing 2 percent of charters in those places, according to the National Charter School Research Project at the University of Washington in Seattle.
Many charter experts suggest more schools, especially low-performing ones, should close.
鈥淢ost people would say there is no doubt that many charter schools that ought to be closed are still open, in large part because of the resistance,鈥� Mr. Hassell said.
Ohio legislators, responding to concerns of lax charter oversight, passed a law last summer to eventually close charters that do not meet certain achievement targets. Texas lawmakers also reached consensus last year on a bill to force the closure of some charters, but it was part of a broader legislative package that died. (鈥淥hio Mandates New Tests for Charters,鈥� July 27, 2005.)
Mr. Hess said the recent legal challenges to orders to close charter schools suggest that 鈥渃harter accountability is no panacea.鈥�
鈥淚t鈥檚 an imperfect process 鈥� subject to various political pressures,鈥� he added. 鈥淚ts efficacy can鈥檛 be taken for granted.鈥�
What Is Fair?
Arizona is generally deemed to have one of the loosest charter laws, making it relatively easy to get schools up and running. With some 450 charters, it has more than any other state but California.
Paulden Elementary, a school serving about 75 students, was started in 2001 in a rural area some 30 miles north of Prescott, Ariz.
鈥淚 could go somewhere else and life would be a lot easier,鈥� said Kay Deliman, the principal, who started the school with her husband, Dennis Deliman. 鈥淏ut I believe in the kids out here; I believe in everything we鈥檙e doing.鈥�
An independent audit of the school in 2003 found several problems, including failure by the school to have fingerprint-clearance cards and criminal-history checks for some staff members, failure to abide by the state鈥檚 open-meetings law, and inaccurate reporting of student-attendance data.
In voting to close the school last spring, the state charter board cited the audit鈥檚 findings, among other reasons. No mention was made of academics, which is not unusual; poor academic performance is rarely cited as the chief reason a school should close.
The school claims in its lawsuit that the state failed to give Paulden Elementary sufficient opportunity to correct problems and contradicted some of the findings of fact offered by an administrative-law judge who reviewed the school鈥檚 situation, among other issues.
Leonidas G. Condos, a lawyer representing the school, said all the compliance issues have been resolved, and noted that the administrative-law judge had concluded before the state decided to shut the school that its charter should not be revoked.
鈥淭he real story is there were certain things the audit found to be deficient, which were all fixed,鈥� he said. 鈥淓verybody is subject to the decision or whim of the board, even if you fix everything, which doesn鈥檛 seem fair.鈥�
But Kurt M. Davis, the president of the state charter board, defended the decision.
鈥淭here was a callous disregard for the contract, for state law and federal requirements, and it is not fair to the taxpayers of Arizona, and it is certainly not fair to the parents of the children,鈥� he said.
Mr. Davis said Arizona has a deliberative process for closing schools, and the decision to revoke Paulden Elementary鈥檚 charter was based on several 鈥渧ery serious matters,鈥� especially the fingerprinting problems.
鈥淭he board doesn鈥檛 just meet one day and your [charter is] revoked,鈥� he said. 鈥淭he board is not made up of anti-charter-school zealots 鈥� put there to create misery for charter schools.鈥�
Oral arguments in state superior court are scheduled for later this month, and the school is being allowed to stay open until its legal claims are resolved.
鈥極n Death Row鈥�
In Boston, Roxbury Charter High Public School is battling in court a state decision to close the school. A court has allowed the school to remain open until a final judgment is rendered.
Late last month, a Suffolk County Superior Court judge backed the state鈥檚 decision to close the school, but school leaders say they intend to appeal to a three-judge panel.
鈥淲e鈥檙e going to continue to operate and go forward,鈥� said William Owens, the chairman of the school鈥檚 board and a former Massachusetts state senator.
The state cited several issues in deciding to close the school, arguing that it was not financially viable, did not have a governance and administrative structure that provided enough oversight of the school operations, and was not complying with substantial terms of its charter. For instance, the state said the school had not developed an individual learning plan for each student, as promised in its charter, and had not administered certain standardized tests to students that it said it would.
鈥淎s far as we鈥檙e concerned, they should have shut down a while ago,鈥� said Heidi Perlman, a spokeswoman for the Massachusetts Department of Education. State officials note that the student population has dwindled to fewer than 40 students.
But Cornelius J. Chapman, a school trustee, argued that the state has failed to recognize changes the school has made, and that the school鈥檚 finances are in far better shape than the state has indicated. He cited a recent financial audit that reveals a surplus of funds for the school. In court papers, the school asserts that the state鈥檚 order was arbitrary and not supported by sufficient evidence.
鈥淲e are doing nothing more right now than pursuing appeals that we have a right to,鈥� Mr. Chapman said. 鈥淲e have tried in the legal proceedings to introduce evidence of the changes that we have effected at the school.鈥�
He said the school has outperformed most other high schools in Boston. 鈥淲e are helping the students that charter schools are supposed to be helping,鈥� he said, noting that the school serves largely low-income students. 鈥淲e鈥檙e on death row, and we鈥檙e appealing.鈥�
Grading in Florida
Two charter schools in Florida also found themselves on death row recently, but got off by resorting to the courts.
A state policy calls for the closure of charters that receive F grades under the state accountability system for two straight years. When the state education agency sought to enforce the policy in the case of two charter middle schools in Palm Beach鈥擠elray-Boynton Academy and Riviera Beach Academy鈥攖he schools objected.
They were backed by the Palm Beach County school board, the authorizer, which voted last summer to keep them open despite the state order. But after the state threatened to withhold some of the district鈥檚 funds, the board reversed itself in August.
The schools then sued to stay open until their joint appeal could be heard by the state.
The schools contended that the state鈥檚 approach was faulty, because they were alternative schools serving high-risk students and so should not have been graded for the 2003-04 school year, which was the first of the two years in which they received F鈥檚. The state did not assign accountability grades to noncharter alternative schools that year.
Beyond that, the schools said it doesn鈥檛 make sense to grade them the same way as other schools.
鈥淭hey got kids who had basically already flunked out of the school system,鈥� said Stewart L. Karlin, a lawyer who represented the two charter schools. 鈥淵ou can鈥檛 apply the double-F standard to these kinds of schools, because they鈥檙e taking kids who are substantially behind the curve already.鈥�
A circuit court judge in West Palm Beach issued an injunction in August saying the schools should stay open temporarily and called for mediation. Ultimately, the state, the district, and the schools agreed in October that the schools would lose their charters but stay open, said Janice S. Cover, an assistant superintendent for the 180,000-student Palm Beach system.
The district has entered into a contract agreement with the two former charter schools under which they will be 鈥減rivate-provider alternative education schools,鈥� she said.
Under the new arrangement, she said, the district is now the schools鈥� governing body. The schools鈥� leadership and staff are largely unchanged.
鈥淲e as the school district will now have a say-so in the kind of services that the children will be getting, whereas in the past, the governing boards of those schools made those decisions,鈥� Ms. Cover said. 鈥淲ith general oversight, we鈥檙e hoping things will change for the children at those schools.鈥�
Pros and Cons
Some charter experts worry about asking courts to decide a school鈥檚 fate.
鈥淐ourts adjudicate on the basis of rights, which makes them lousy for resolving all kinds of societal and policy disputes,鈥� said the AEI鈥檚 Mr. Hess. 鈥淲hen you get into court, you鈥檙e bringing to bear the entire legal apparatus. 鈥� Decisions are precedent-setting.鈥�
And, he said, judges are experts on the law, not on schools.
鈥淚 have found that courtrooms really don鈥檛 have a good understanding of the reality of running schools, and running systems of schools,鈥� added Mr. Richmond of the charter school authorizers鈥� group.
But Marc D. Kenen, the executive director of the Massachusetts Public Charter School Association, said that even while his group did not oppose the state鈥檚 determination for Roxbury Charter to close, he sympathizes with taking a challenge to court.
鈥淚 think it鈥檚 important for schools to have an appeals process beyond the authorizer,鈥� he said, 鈥渟o I didn鈥檛 have a problem with the courts being drawn in.鈥�
