Monday, January 7, 2013

UP YOURS: Are Charter Schools so unregulated, or 'private', they are exempt from providing students with their constitutional rights?

Hello Boston Globe. UP (Yours) IS the mainstream charter movement.
Charter crooks abound. I don't mean stealing in the classic sense but creating an entire industry feeding at the public teat. Here is a follow up to my earlier post (just read Inside Colocation and seethe) on the usual outrages by Success Academy schools, something we will wait til hell freezes over for the NY Times to cover. Before I get to Lisa Donlan's pointing out how the lead shield put around charters protects them from accountability, Boston based EduShyster today reports on the end of the love affair between the Boston Globe and UP (Yours) Academy charter.
It’s time now for another installment of EduShyster’s favorite telenovela: “Nos Encanta Los Escuelos Charteros.” This long-running series features the Boston Globe in the role of love-besotted suitor, intent on showing its love for local charter schools through cartas de amor, otherwise known as news articles. When we last tuned in, the Globe’s mad luv for local miracle school UP Academy, appeared to have hit a rough patch. EduShyster can now officially confirm that the Globe and UP Academy are done, splitsville, broken up.

What went so wrong?

The Globe went public about the split last week, airing UP’s dirty laundry all over the Metro section...
Edushyster exposes the sleazy connection between a mayoral aide and UP:
With the Mayor all but out of commission since October, and his powerful aide Michael Kinneavy presumed to be running the show, it might strike the more conspiracy-minded among us as a bit rich that Mr. Kinneavy sits on the board of UP Academy, which stands to benefit directly and most profitably from the legislation. (UP keeps a cool 15% commission each year for miracle-izing the formerly public schools in its growing orbit). I believe that this is what is known as a conflicto de intereses.
Apparently, the Boston Globe, which had lavished loving praises on Up, felt spurned since it had been fed charter pablum and bought it hook, line and sinker. I guess hearing this kind of crap made them take notice...
by the time you factor in 20% annual student turnover AND the multiple categories of students shunted off to enclaves of non-excellence, it turns out that this former-public-school-turned-miracle-charter isn’t so miraculous after all. And that’s not all. The Globe acknowledged what EduShyster reported late last year
But the true tabloid take-a-way was the Globe’s recounting of a young student with behavioral problems being driven to a nearby public school by UP administrators and dropped off, still wearing her UP Academy uniform. 

Did you get that? I’ll let the Globe break it down for you again for emphasis:
Ultimately, of the pupils eligible to apply at the Gavin, 84 percent enrolled at UP Academy last fall. But as the year progressed, 44 of those former Gavin pupils left. A few of those students landed at the McCormack Middle School in Dorchester. The pupils generally had discipline problems, and UP Academy drove one girl there while she was wearing her school uniform, said Paul Mahoney, dean of students at the McCormack.

Actually, the real Boston Globe take-away from this sleazy affair? Not that there is an inherent fatal flaw in the charter movement...
Last week, a Globe editorial took a swipe at Mayor Menino, warning that his love legislation to UP Academy and other in-district charter schools actually undermines the “mainstream charter movement.”  


This ties into this great work done NYC Lower East Side Parent activist Lisa Donlan.
Charter schools can call themselves public all they want (and have the term sprinkled into state law) but the courts will need to determine soon just how "public" charter schools are, in fact. 
 Are they so unregulated, or 'private', that they even are exempt from providing students with their constitutional rights, as the quote below might indicate?

The District’s Office of the State Superintendent of Education in August proposed rules that would govern discipline policies at all public schools, including charters. They called for minimizing suspension and expulsion of children 13 and younger and outlined due process rights for students. Charter leaders mounted a vigorous opposition, saying the federal law that established D.C. charters frees them from such local mandates.

If so, this would give a whole new meaning to separate and unequal!


Charter schools are publicly funded but increasingly people are asking whether many of them more resemble private schools. 

Here’s a different look at this notion from Julian Vasquez Heilig, an award-winning researcher and Associate Professor of Educational Policy and Planning at the University of Texas at Austin. A version of this appeared on his Education and Public Policy blog.
By Julian Vasquez Heilig
The common refrain is that charter schools are public schools. Critics, such as Diane Ravitch, have said that charter schools accept public money but act private. I have levied a variety of critiques at charters despite the fact that I was an instructor at an Aspire charter school in California and that I currently sit on UT-Austin’s charter school board. See CI’s full thread on charter schools here.
At the recent UCEA convention in Denver, I had the pleasure of presenting in a conference session about charters schools and equity. At the conference I was blown away how judges are treating charters schools as private schools and the implication that these choices have for student who attend those schools. I have excerpted below from a law journal article authored by Preston C. Green III, Erica Frankenberg, Steven L. Nelson, and Julie Rowland.
Citation: Green, P., Frankenberg, E., Nelson, S., & Rowland, J. (2012). Charter schools, students of color and the state action doctrine: Are the rights of students of color sufficiently protected? Washington and Lee Journal of Civil Rights and Social Justice, 18(2), 254-275.
A recent federal appellate court decision suggests that students of color should also be concerned about the legal protections that charter schools might provide to students.18Because state authorizing statutes consistently define charter schools as “public schools,”19 it would appear that charter school students are entitled to constitutional protections.20 Students attending public schools have challenged deprivations of federal constitutional and statutory rights under 42 U.S.C. § 1983, which establishes a cause of action for deprivations of federal constitutional and statutory rights “under the color of state law.”21 Students have sought damage awards pursuant to § 1983; “actions for injunctive or declaratory relief are [also] a major portion of the case law.”22 However, in 2010, the Ninth Circuit concluded in Caviness v. Horizon Learning Center23 that a private, nonprofit corporation running an Arizona charter school was not a state actor under § 1983.24 The Ninth Circuit specifically rejected the assertion that charter schools were state actors because they were defined as “public schools” under the state statute.25

Although the Caviness case was an employment case, it is important to recognize that a similar analysis could lead to the conclusion that charter schools are not state actors with respect to student constitutional issues. Students attending public schools are guaranteed constitutional protections.156 There are constitutional safeguards for student expression.157Public school students are protected from unreasonable search and seizure.158 The Constitution also requires public schools to provide procedural due process safeguards when suspending or expelling students.159 Of the seven states in the Ninth Circuit with legislation authorizing charter schools,160 only Oregon guarantees that all federal rights apply to charter schools.161 With the exception of Oregon, state legislatures do not compel charter schools to follow constitutional guidelines with respect to due process. California and Idaho merely require potential charter school operators to disclose their disciplinary policies in their initial charter application.162 Alaska, Arizona, Hawaii, and Nevada do not even demand that charter schools disclose their disciplinary policies at the time of application.163

Students of color attending charter schools should be concerned about the potential lack of constitutional due process protection. Studies of data at the national, state, district, and building levels have consistently found that students of color are suspended at two to three times the rate of other students.180 African-American students should be especially concerned about the possible lack of due process protection.181 According to the U.S. Department of Education Office for Civil Rights, in the 1970s African-Americans were two times more likely than white students to be suspended from school.182 By 2002, the risk of suspension for African-Americans increased to nearly three times that of white students.183 Further, a study of office discipline referrals in 364 elementary and middle schools during the 2005-06 school year found that African-American students were more than two times as likely to be referred to the office for disciplinary issues as white students.184 The same study found that African-American students were also four times more likely to be sent to the principal’s office than white students.185

Because of their foci on autonomy and accountability, supporters of charter schools have argued that they are the perfect vehicle for addressing the educational needs of students of color. This article points out, however, that charter schools may not be state actors under federal law with respect to student rights. Consequently, students of color may be unwittingly surrendering protections guaranteed under the Constitution in order to enroll in charter schools.
I have already discussed how charters can wield contracts to exclude students from schoolhere. In conclusion, Professor Green commented via email:
The key takeaway about Caviness is that it’s unclear whether the constitutional rights of kids are protected in charter schools. In a NEPC brief, Julie Mead and I point out that charter school statutes can address this confusion by clearly stipulating that children are guaranteed the same rights in charter schools as they would receive in traditional public schools… there are important implications for African-American males with respect to Due Process, suspensions, and expulsions.

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