JURIST Guest Columnist Erika Wilson of University of North Carolina School of Law, discusses the potential perils of Kentucky’s new charter school law …

On March 21, 2017, Kentucky governor Matt Bevin signed into law House Bill (“HB”) 520, a bill that will allow charters schools to operate in Kentucky for the first time in the state’s history. Beginning with the 2017-2018 academic year, school boards in Kentucky will have the authority to approve an uncapped number of charter schools. The bill adopts the same rhetoric commonly used in support of charter school proliferation, namely that charters schools will allow for innovation, flexibility and provide an opportunity to reduce socioeconomic, racial and ethnic achievement gaps. Yet, as seen in other states that allow for an unlimited number of charter schools, the realities of uncapped charter school growth are often very different from the rhetoric. As Kentucky embarks on its charter school odyssey, three important warnings are worth heading.

The Perils of Limited Regulation and Schools

First, the very nature of charter schools changes the dynamics of what is supposed to be a system of public education. Though charter schools are public schools, a private charter operator under a contract with the state essentially runs them. Charter schools are also exempt from many state and local regulations. They are afforded wide latitude on matters that traditional public schools are not; issues such as hiring and firing practices, curriculum design, teacher pay and qualifications. The inevitable result of giving private charter operators license to run public schools with relaxed regulation is the introduction of elements of privatization into the system of public education. Case in point, Kentucky’s HB 520 allows teachers, parents, school administrators, citizens, public organizations, non-profit organizations or a combination of the aforementioned, to become charter school operators. Only local school boards and the mayors of Louisville and Lexington can approve contracts with charter operators. Importantly however, once the local school board or mayor approves the charter contract, there is nothing in HB520 that precludes the charter school operator from contracting out the management and operation of the school to a third-party for-profit Education Management Organization (“EMO”). Indeed, EMOs run a sizeable percentage of charter schools nationwide. EMOs have long elicited concerns that given the regulatory latitude afforded charter schools, they may enact educational policies with the goal of maximizing profit, rather than sound educational policies aimed at student learning. Indeed, a study of for-profit charter schools in Florida found that charters operated by for-profit EMOs schools spent less money overall, less money on instruction and achieved lower student proficiency gains. Failure to include clear limits or prohibitions on the use of for-profit charter EMOs leaves some subset of Kentucky public schools vulnerable to the possibility of the charters run by for-profit entities emphasizing financial gains over student gains.

Unsavory Competition for Students

Second, another potential danger raised by HB520 is the possibility of unrestricted growth of the charter school. Under HB520, charter schools will receive state money based on how many students are enrolled in the school. Put another way, the money follows the student. As seen in places like Detroit and New Orleans, unrestricted charter growth can lead to predatory competition for students and the public dollars that follow them. Proponents of charter schools contend that removing caps on the number of charter schools permitted to operate in a state leads to increased competition amongst schools for students and increases the number of good school options available to students. Again, the realities of how that competition plays out for the most-vulnerable students–poor and minority students–belies such rhetoric. In states that do not have caps on the number of charter schools, stories abound of schools competing for students through unsavory enticements such as cash gift cards for example. They do so for purposes of having the student in the building on the day enrollment is counted for purposes of receiving the government funding that follows the students to charter schools. Once the enrollment count day has ended, concerns about maintaining enrollment erode, children deemed academic or discipline problems can be easily dismissed.

Further, allowing an uncapped number of charter schools prohibits charter schools from collaborating with public schools in ways that might be useful to both the charter and public schools. The initial charter school movement began with the premise that charter schools could serve as useful laboratories of experiment. Relaxed regulations would allow new teaching methods and techniques that could be tried, tested and imported back into traditional public schools. It was a model that envisioned collaboration rather than competition. Yet the influx of charter schools is more likely to cause competition between charter and traditional schools rather than collaboration. The possibility of competition rather than collaboration is particularly likely in Kentucky given the language of HB520, which allows an existing public school to be converted into a charter school if (among other things) sixty percent of parents in the school and the majority of the school board in the district in which the school is situated approve the conversion.

Racial and Socioeconomic Equity Issues

Lastly, key concerns raised by charter schools are related to issues of racial and socioeconomic equity. Kentucky has shown a steadfast commitment to maintaining racially and socioeconomically integrated schools. Most notably, the Jefferson County school district maintained a voluntary integration plan for years after their court ordered desegregation plan ended, until the Supreme Court struck their plan down as relying upon an unconstitutional use of race in Parents Involved in Community Schools v. Seattle School District No. 1. Even after the decision in Parents Involved, Jefferson County continued to rely on a bussing plan between urban and suburban areas in the County in order to maintain racial and economic balance in its schools. However, the introduction of charter schools to the public education landscape in Kentucky may jeopardize racial and socio-economic integration in Kentucky’s schools, particularly the urban schools. Recent research has shown that charter schools undoubtedly influence patterns of racial segregation in schools. In many ways, charter schools can represent an “opt-out” for parents in suburbs or urban areas who are tired of having their children bussed. Indeed, the rise of charter schools in states like North Carolina provided a vehicle for white parents to secede from more racially and economically diverse schools. A proliferation of neighborhood based charter schools could change the balance of racial integration in Kentucky schools. In approving charter applications, serious attention should be paid to the racial and socioeconomic implications of citing a new charter school.

Ultimately, the success (or failure) of HB520 will depend upon the Kentucky Board of Education. HB520 charges the Kentucky Board of Education with implementing regulations to support the implementation of the law. The Kentucky Board of Education would be wise to heed the aforementioned warnings regarding limited regulation, unsavory competition and racial and socio-economic equity.

Erika Wilson is an assistant professor of law at the University of North Carolina who concentrates on civil rights and education policy. Professor Wilson served as the George N. Lindsay Fellow for the Education Project at the Lawyer’s Committee for Civil Rights Under Law where she engaged in a broad range of litigation and law reform projects involving school desegregation, the No Child Left Behind Act, special education, school discipline and federal funding to Historically Black Colleges and Universities.

Suggested citation: Erika Wilson, Kentucky and the Charter School Movement: Caveat Emptor (Buyer Beware), JURIST – Academic Commentary, Mar. 29, 2017, http://jurist.org/forum/2017/03/Erika-Wilson-Charter-School.php